Category Archives: Family Law

‘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 […]

Tina Cockburn, ‘Equity in estate litigation’

Abstract Equitable claims are now increasingly being raised in estate litigation, particularly in conjunction with family provision applications. In the landmark High Court case, Bridgewater v Leahy, an inter vivos transfer of substantial property by an elderly grazier to his nephew was set aside on the grounds that it was an unconscionable bargain, to the […]

Thorne v Kennedy

“The High Court has allowed an appeal against a decision of the Full Family Court on the enforceability of binding financial agreements before and after marriage. Pt VIIIA of the Family Law Act 1975 (Cth) allows parties to a marriage to enter into binding financial agreements before or after a marriage to clarify their respective […]

Hofri-Winogradow and Kaplan, ‘Property Transfers to Caregivers: A Comparative Analysis’

Abstract Caregivers are key recipients of property transfers, both inter vivos and testamentary. The law’s treatment of property transfers to caregivers changes according to the caregiver’s relationship to the person cared for. Where caregivers are related to care recipients, the law generally favors the structuring of property transfers to caregivers as capital, rather than income […]

Melanie Fellowes, ‘Commercial surrogacy in India: The presumption of adaptive preference formation, the possibility of autonomy and the persistence of exploitation’

Abstract India’s proposed 2016 Bill on the regulation of surrogacy is its latest attempt to respond to criticism regarding the lack of protection given to those entering into a commercial surrogacy arrangement. Adaptive preference theorists presume that a decision made in an oppressive environment, which is inconsistent with the woman’s well-being, is not autonomous and […]

Maria Rosaria Marella, ‘“Love Will Tear Us Apart”: Some Thoughts on Intrafamilial Torts and Family Law Modernization Between Italy and Canada’

Abstract: This paper analyzes a specific aspect of the so-called privatization of the family, namely the intersection of family law with the law of torts, as experienced in some European civil law countries like Italy, France and Germany. It also takes into account parallel developments emerged in common law jurisdictions and specifically in Canada. After […]

Lionel Smith, ‘Parenthood Is a Fiduciary Relationship’

Abstract: Canadian courts have held that parents stand in a fiduciary relationship with their children. Some commentators take the view that this is an inappropriate and unwarranted extension of a set of concepts that were originally elaborated in the context of the management of property rights and other pecuniary interests. This goal of this paper […]

Yitshak Cohen, ‘Property Sharing Arrangements in Israeli Family Law – A New Model’

Abstract: The arrangement for balancing marital resources in Israel is set forth in the Property Relations between Spouses Law (hereinafter Property Relations Law). This arrangement was established to replace the presumption of sharing that had applied until 1973. The presumption determined that all of the spouses’ property was jointly owned and shared from the beginning […]

Judith Younger, ‘Lovers’ Contracts in the Courts: Forsaking the Minimum Decencies’

Abstract: People in intimate relationships – spouses or lovers, prospective spouses or lovers – make all kinds of promises to each other. This article focuses on those promises that deal with the financial details of the couples’ break-up, whether by death of one of them or ‘divorce’. The courts’ treatment of these promises in leaves […]