Category Archives: Family Law

‘Family Choices’

Courtney G Joslin, Autonomy in the Family, 66 UCLA Law Review 912 (2019), available at SSRN. What is the role of autonomy (choice) in American marriage law, and what should it be? This question is salient for topics like the proper treatment of premarital and marital agreements, but, as Courtney Joslin points out in her […]

Robin West, ‘Consent, Legitimation, and Dysphoria’

ABSTRACT Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation of lawful from unlawful, legitimate from illegitimate, and good from bad. This is a particularly pronounced trend in the areas of sexual and reproductive rights and ethics. Consensual sex has almost completely displaced marital sex as the demarcation of not […]

Gilbar and Ram-Tiktin, ‘It Takes a Village to Raise a Child: Solidarity in the Courts – Judicial Justification for Posthumous Use of Sperm by Bereaved Parents’

ABSTRACT The practice of posthumous use of sperm raises social, ethical, and legal questions. We examine the issue of who should be allowed to use the sperm – only the deceased’s spouse or the deceased’s parents as well – from the perspective of solidarity and relational autonomy. Following a theoretical discussion of various accounts of […]

Andrea Mulligan, ‘A vindicatory approach to tortious liability for mistakes in assisted human reproduction’

ABSTRACT Mistakes in assisted human reproduction procedures such as IVF, egg, sperm and embryo donation are surprisingly common, but tortious liability for such mistakes has not been addressed in the courts of England and Wales, or Ireland. This paper presents an argument in favour of a vindicatory approach to tortious claims arising from mistakes, where […]

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 […]