Category Archives: Family Law

Albertina Antognini, ‘Nonmarital Coverture’

ABSTRACT How and why do courts distribute property between unmarried couples when they separate? This Article offers an answer: they follow the rules laid out by coverture. Coverture is a regime, long considered defunct, that defined the appropriate roles husbands and wives occupied in marriage. Among other consequences, it prevented the wife from accessing property […]

Jill Hasday, ‘Introduction: Intimate Lies and the Law

ABSTRACT Intimacy and deception are often entangled. People deceive to lure someone into a relationship or to keep her there, to drain an intimate’s bank account or to use her to acquire government benefits, to control an intimate or to resist domination, or to capture myriad other advantages. No subject is immune from deception in […]

‘“Mother” defined in common law’

“Our coverage of transgender issues tends to focus on the human rights aspects, as considered in MB v Secretary of State for Work and Pensions [2018] Case C‑451/16, here, or the approach of the Church of England to gender transition, as in our post Bishops’ guidance on use of Affirmation of Baptismal Faith in the […]

Chris Bevan, ‘The search for common intention: the status of an executed, express declaration of trust post-Stack and Jones

INTRODUCTION In the seminal cases of Stack v Dowden and Jones v Kernott the highest courts in the land attempted to bring clarity and simplicity to the law on disputes arising as to the ownership of property where the extent of co-owners’ beneficial entitlements has not been recorded in an express declaration of trust. However, […]

Elizabeth Carter, ‘Are Premarital Agreements Really Unfair: An Empirical Study of Premarital Agreements’

ABSTRACT Are premarital agreements categorically unfair? Critics of premarital agreements cling to the (unfounded) belief that premarital agreements are categorically one-sided, coercive, and designed to benefit the wealthier spouse – usually the man. Courts, legislators, and scholars have too often relied on assumptions about premarital agreements without delving in to the facts. They have looked […]

Courtney Joslin, ‘Autonomy in the Family’

ABSTRACT Scholars largely support the concept of choice in family form. But while scholars largely agree on this abstract goal, they do not agree on which legal rules best further that end. Take the issue of economic rights for nonmarital partners. The conventional doctrine treats nonmarital partners as legal strangers. No rights arise out of […]

Michael Higdon, ‘While They Waited: Pre-Obergefell Lives and the Law of Nonmarriage’

ABSTRACT In the wake of Obergefell, the United States now has a large class of married, same-sex couples whose relationships began at a time when marriage was unavailable to them. The law must therefore wrestle with the question whether any portion of a pre-Obergefell relationship should count toward the length of the ensuing marriage – […]

Tasneem Haradasa, ‘Causation in Section 15 of the Property (Relationships) Act 1976: Analysing the New Zealand Supreme Court’s “Working Assumption” – Is It Really Working?’

ABSTRACT Scott v Williams concerned s 15 of the Property (Relationships) Act 1976. In situations of significant economic disparity post-separation, s 15 empowers courts to depart from the default rule of equal division of relationship property to compensate the disadvantaged partner. Causation is one of the jurisdictional hurdles. Only disparity ‘because of’ the division of […]

Patricia Williams, ‘Babies, Bodies and Buyers’

ABSTRACT While reproductive rights have always been at the center of women’s work in the academy, that conversation has changed in complex ways in recent years – in no small part because of revolutionary new assisted-reproductive and genetic technologies. From oosplasmic transfer to pre-implantation genetic diagnosis to the precise gene-editing capabilities of Crispr-cas9, these technologies […]

Brenda Hale, ‘What is a 21st Century Family?’

INTRODUCTION “Way back in the mists of time when I first studied Family Law, we thought we knew what a family was. It was a group of people linked together by consanguinity or affinity or a mixture of both. Only those gave rise to legal consequences – property, succession, obligations of cohabitation and support. Even […]