Category Archives: Family Law

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 […]

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 […]