Category Archives: Family Law

Sirko Harder, ‘Compensation for the Cost of a Surrogacy Arrangement in Personal Injury Cases’

ABSTRACT A woman who has been rendered infertile by a defendant’s wrong may wish to obtain damages for the cost of becoming a parent through a surrogacy arrangement. Such a claim, which has yet to be brought before an Australian court, would raise two partially overlapping issues under Australian law. First, the claim must satisfy […]

Probert and Pywell, ‘Love in the time of Covid-19: a case-study of the complex laws governing weddings’

ABSTRACT During 2020, weddings were profoundly affected by the Covid-19 pandemic. During periods of lockdown few weddings could take place, and even afterwards restrictions on how they could be celebrated remained. To investigate the impact of such restrictions, we carried out a survey of those whose plans to marry in England and Wales had been […]

Tamar Ezer, ‘Inheritance Law in Tanzania: The Impoverishment of Widows and Daughters’

ABSTRACT Tanzania’s inheritance laws are in urgent need of reform. Both customary and Islamic law, the two predominant systems of intestate succession in Tanzania, limit women’s inheritance on the basis of their gender. Under customary law, a widow is generally denied inheritance altogether: ‘[H]er share is to be cared for by her children, just as […]

‘The Supreme Court’s Job Is Not to Provide Clarity’

Joanna Grossman and Gillian Thomas, ‘Making Sure Pregnancy Works: Accommodation Claims After Young v United Parcel Service, Inc’, 14 Harvard Law and Policy Review 319 (2020). Professors Grossman and Thomas have written a wonderful article that describes how courts have applied Young v United Parcel Service, 575 US 206 (2015), in which the Court considered […]

‘Subsequent Marriages and the Elective Share’

Naomi Cahn, ‘What’s Wrong About the Elective Share “Right”?’, 53 UC Davis Law Review 2087 (2020). I have long been perplexed by the inconsistency between the rights of divorcing spouses which are governed by family law rules and the rights of surviving spouses which are governed by trusts and estates law. While the rules governing […]

Alexander Ng, ‘The Canadian Answer to the English Dilemma: Contribution-based Approaches over a Common Intention Constructive Trust in Family Homes’

ABSTRACT Determining each other’s proprietary interests in the shared home after relationship breakdown remains hotly debated. In Stack v Dowden, Baroness Hale stated that it was possible to impute an intention that the parties could never have had, to achieve fairness. In Jones v Kernott, imputation could only operate in quantifying interests. Also, imputation is […]

June Carbone, ‘A Consumer Guide to Empirical Family Law’

ABSTRACT This Article will consider the framework for empirical work on family law, arguing that the failure to ask more sophisticated questions at the beginning of the research has limited its effectiveness. In this sense, Professor Peg Brinig’s work stands out for the creativity of the questions she has asked, her exploration of underutilized databases, […]

Martha Ertman, ‘Contract’s Influence on Feminism and Vice Versa’

ABSTRACT This book chapter for an Oxford Handbook on US Feminist Legal Theory describes the role of contract theory and doctrine in feminist legal theory. After a brief discussion of its roots in political theory re: the social contract, sets out examples of feminist theory that portray contract as a route to gender equality, others […]

Ying Khai Liew, ‘The “Joint Endeavour Constructive Trust” Doctrine in Australia: Deconstructing Unconscionability’

ABSTRACT The ‘joint endeavour constructive trust’ doctrine, propounded for the first time by the High Court in Muschinski v Dodds (1985) 160 CLR 583), is firmly part of modern Australian law. Yet, its precise requirements and remedial approach are poorly understood and inconsistently applied. The primary contributing factor is the prevailing understanding that ‘unconscionability’ is […]

Anna Heenan, ‘Haley v Haley: Family law arbitration and the new frontier of private ordering’

ABSTRACT Haley v Haley is required reading for anyone interested in family law dispute resolution or issues of access to justice. The case concerns family arbitration and, importantly, changes the test for challenging arbitral awards, making it easier to do so. This is connected to concerns about making arbitration more appealing in the family law […]