Category Archives: Family Law

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 […]

Mark Pawlowski, ‘Beneficial ownership of the family home – where now the resulting trust?’

Abstract: The article seeks to identify those areas where the resulting trust may still have an important role to play in determining beneficial ownership of the family home. Although the modern judicial trend is for the courts to apply constructive trust or proprietary estoppel mechanisms in the family context, the resulting trust remains the appropriate […]

‘Divorce and money – where are we and where are we going?’

“The advance towards the digital court, heralded by the progress towards on‐line divorce (in which expression I include for present purposes the analogous processes in relation to civil partnership, judicial separation and nullity), demands that we now tackle an issue which has been around for some time. Why is it that what is referred to […]

Peter Nicolas, ‘Backdating Marriage’

Abstract: Many same-sex couples have been in committed relationships for years, even decades. Yet until 2004 no same-sex couples in the United States had the right to marry in any state and until the US Supreme Court’s 2015 decision in Obergefell v Hodges the right was unavailable to same-sex couples nationwide. Due to this longstanding […]

‘America’s Next Top Probate Model’

Katherine M Arango, Trial and Heirs: Antemortem Probate for the Changing American Family, 81 Brooklyn Law Review 779 (2016). The idea of the ‘traditional family unit’ is changing at a rapid pace that requires the law to adapt to effectuate a testator’s intent when administering a will. With 16.3 million unmarried Americans cohabiting and one […]

‘Of Persons, Property, and Frozen Eggs’

Browne Lewis, “You Belong to Me”: Unscrambling the Legal Ramifications of Recognizing a Property Right in Frozen Human Eggs, 83 Tennessee Law Review 645 (2016). William Blackstone’s Commentaries on the Laws of England bifurcated the physical universe into persons and property. In Blackstone’s description of English law, there were categories of persons (just as there […]

Deborah Zalesne, ‘The Intersection of Contract Law, Reproductive Technology, and the Market: Families in the Age of ART’

Abstract: While rapidly developing Assisted Reproductive Technology (‘ART’) such as in vitro fertilization, surrogacy, artificial insemination, IUI, fertility medication, intracytoplasmic sperm injection, and cryopreservation, offer new pathways to parenthood, they have challenged our collective notions about the traditional view of family as something ‘organic’ and ‘natural’ and as a ‘self-contained unit’. New technologies allow for […]

Albertina Antognini, ‘The Law of Nonmarriage’

Abstract: The meaning of marriage, and how it regulates intimate relationships, has been at the forefront of recent scholarly and public debates. Yet despite the attention paid to marriage – especially in the wake of Obergefell v Hodges – a record number of people are not marrying. Legal scholarship has mostly neglected how the law […]