Category Archives: Family Law

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 […]

Jill Elaine 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 […]

Malinda Seymore, ‘Adopting Civil Damages: Wrongful Family Separation in Adoption’

ABSTRACT The Trump Administration’s new immigration policy of family separation at the US/Mexico border rocked the summer of 2018. Yet family separation is the prerequisite to every legal adoption. The circumstances are different, of course. In legal adoption, the biological parents are provided with all the constitutional protections required in involuntary termination of parental rights, […]

Luke Taylor, ‘Marriage, Work, and the Invention of Family Law in English Legal Thought’

ABSTRACT This article traces the emergence of family law as an autonomous legal domain within English scholarly legal thought. It provides a genealogy of conceptual and taxonomical change spanning a nearly two-hundred-year period via close readings of a range of legal texts beginning with Blackstone’s Commentaries. The article shows how the invention of English family […]

Allison Anna Tait, ‘Trusting Marriage’

ABSTRACT Marriage settlements are back. Complex trusts intended to protect family fortunes were once the centerpiece of wedding planning and family negotiations. In more modern times, these trust-based settlements ceded their popularity to premarital contracting and the prenuptial agreement. But in recent years, new trust forms with unprecedented asset protection features have prompted a resurgence […]