Category Archives: Family Law

Purshouse and Bracegirdle, ‘The Problem of Unenforceable Surrogacy Contracts: Can Unjust Enrichment Provide a Solution?’

Abstract The fact that surrogacy contracts are unenforceable can cause problems if a surrogate decides that she wishes to keep the child. When this happens, the intended parents cannot bring a claim in contract compelling her to give the baby up to them or even for the return of money paid to the surrogate. Intuitively, […]

Scott and Chen, ‘Fiduciary Principles in Family Law’

Abstract Family members bear primary responsibility for the care of dependent and vulnerable individuals in our society, and therefore family relationships are infused with fiduciary obligation. Most importantly, the legal relationship between parents and their minor children is best understood as one that is regulated by fiduciary principles. Husbands and wives relate to one another […]

Shircore, Douglas and Morwood, ‘Domestic and Family Violence and Police Negligence’

Abstract Domestic and family violence in Australia has received unprecedented attention over the past few years. A number of recent reports and reviews have identified that improved policing is key to enhancing the safety of women and children. In response to these reports, and in recognition that police are often the first to respond to […]

Adam Hirsch, ‘Inheritance on the Fringes of Marriage’

Abstract This Article explores the inheritance rights of individuals situated at the fringes of marital relationships – fiancés, spouses who are in the process of divorcing, and permanently separated spouses. The Article examines whether these categories of individuals ought to enjoy rights to forced shares of an estate comparable to those that ordinary spouses can […]

‘The award of damages to enable surrogacy’

“Given the nebulous nature of surrogacy law in the UK and the decision in Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010, [2001] 2 FLR 1094, with its confusing obiter dicta, it is somewhat surprising that the funding of surrogacy for an infertile young woman was included in the heads […]

Brown and Gardiner, ‘The rights of unmarried cohabitants in Canada’

Abstract The number of unmarried, cohabitating couples in Canada has increased steadily over the past 50 years. The rights and remedies that flow from these relationships vary widely across Canada’s provinces and territories. The authors survey the laws of four provinces (British Columbia, Alberta, Ontario, and Quebec) as illustrative in three distinct areas: property rights, […]

Patrick Parkinson, ‘Why are Decisions on Family Property So Inconsistent?’

Abstract The argument of this article is that the law on family property in Australia is plagued with uncertainty at its very core, and that the Full Court of the Family Court, as the primary appeal court in this jurisdiction, is structurally incapable of providing doctrinal coherence. Decisions of the Full Court, which ought to […]

Carlyn McCaffrey, ‘The property rights of unmarried cohabitants in the USA’

Abstract The rights of unmarried cohabitants in the USA are determined by the courts of each state. Until the early 1970s, most states gave unmarried cohabitants virtually no rights in the property of their partners. Since then the law has developed rapidly and inconsistently from state to state. This article discusses the principal approaches used […]

‘Thorn in the Side of Prenuptial Agreements? Thorne v Kennedy

“In Thorne v Kennedy, the High Court unanimously struck down both a prenuptial and a postnuptial agreement (the plurality on the basis of undue influence and unconscionable conduct, and Nettle J and Gordon J on the basis of unconscionable conduct alone). The agreements had been entered into by a impoverished 36-year-old woman from overseas (known […]

Swennen and Croce, ‘Family (Law) Assemblages: New Modes of Being (Legal)’

Abstract This article advances a new model for family law to address emerging non-conventional family formations, particularly between parents and children. We contend that the conventional model of kinship categories as static, predefined statuses should be replaced with a model whereby the state accommodates kinship categories the law users themselves produce within their fluid and […]