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Research Handbook on Family Property and the Law
This pivotal Research Handbook analyses the interconnectedness of family property and the law through historical, contemporary, comparative and jurisdiction-specific lenses. Authors analyse some of the most well-known, contested and politicised legal developments in the field of family property law.
More Information
Critical Acclaim
Contributors
Contents
More Information
This pivotal Research Handbook analyses the interconnectedness of family property and the law through historical, contemporary, comparative and jurisdiction-specific lenses. Authors analyse some of the most well-known, contested and politicised legal developments in the field of family property law.
Bringing together leading international scholars, the Research Handbook on Family Property and the Law considers the key policy issues that impact family property entitlement, including the extent to which wealth, class and race influence its distribution. It explores the defining features of family property, such as how it is conceptualised, created and legally recognised, and how it has evolved over time. Authors examine the recipients, recognition and redistribution of family property, queer perspectives on property protections in marriage and other registered partnerships, and family property law in a variety of regions including Africa, Asia, Australasia, the Caribbean, Europe and North America.
This comprehensive Research Handbook will be a vital resource for academics and students specialising in family law, human rights law, property law, social policy and succession law. It will also benefit legal practitioners and national and international policymakers in the field.
Bringing together leading international scholars, the Research Handbook on Family Property and the Law considers the key policy issues that impact family property entitlement, including the extent to which wealth, class and race influence its distribution. It explores the defining features of family property, such as how it is conceptualised, created and legally recognised, and how it has evolved over time. Authors examine the recipients, recognition and redistribution of family property, queer perspectives on property protections in marriage and other registered partnerships, and family property law in a variety of regions including Africa, Asia, Australasia, the Caribbean, Europe and North America.
This comprehensive Research Handbook will be a vital resource for academics and students specialising in family law, human rights law, property law, social policy and succession law. It will also benefit legal practitioners and national and international policymakers in the field.
Critical Acclaim
‘Overall, this book is a must-read for those with interests ranging from human rights law to property, the family and social policy, and for practitioners, academics and policymakers alike. Pushing to ensure the best outcomes for individuals is a duty that is incumbent on practitioners, and the book encourages reflection not only on how we have reached our current legal position, but also on how the law might go about keeping pace with the ways in which people live their family lives. Particularly, as we come to think about how we might wish this area of the law to develop in the future, it reminds us of the value of shifting away from an exclusive focus on the property law of the Western world. If we are receptive towards listening to a wider range of viewpoints – not simply geographical, but also cultural and religious – we will have much to learn.’
– Charlotte Bendall, Financial Remedies Journal
‘This superb collection, by a distinguished group of international experts, contributes significantly to the field. Its geographical, substantive, and theoretical breadth proves the error of any view of family property as staid or as merely law for wealthy white women.’
– Robert Leckey, McGill University, Canada
‘This outstanding book brings together different perspectives on family property: culture, indigeneity, religion, sexuality, feminism, history, policy development, as well as classic legal analysis. The team of authors from around the world and their scholarship mean that the book fills many gaps and brings fresh insights. I recommend it most highly.’
– Bill Atkin, Victoria University of Wellington, New Zealand
– Charlotte Bendall, Financial Remedies Journal
‘This superb collection, by a distinguished group of international experts, contributes significantly to the field. Its geographical, substantive, and theoretical breadth proves the error of any view of family property as staid or as merely law for wealthy white women.’
– Robert Leckey, McGill University, Canada
‘This outstanding book brings together different perspectives on family property: culture, indigeneity, religion, sexuality, feminism, history, policy development, as well as classic legal analysis. The team of authors from around the world and their scholarship mean that the book fills many gaps and brings fresh insights. I recommend it most highly.’
– Bill Atkin, Victoria University of Wellington, New Zealand
Contributors
Contributors include: Rajnaara Akhtar, Erez Aloni, Rosemary Auchmuty, Christiane von Bary, Margaret Briggs, Sally Brown Richardson, Anthony Diala, Paul du Plessis, Andy Hayward, Mark Henaghan, Emma Hitchings, Alexandra Jungo, Henry Kha, Fabiola Lathrop, Yip Man, Faizal Ahmad Manjoo, Kathryn O’Sullivan, Nausica Palazzo, Nicola Peart, Christian Poland, Christa Rautenbach, Tracy Robinson, Jacinta Ruru, Jens M. Scherpe, Brian Sloan, Allison Tait, Sharon Thompson, Laura von Arb, Mitzi Wiese, Geoffrey Willems, Alain Wijffels, Jianghao Xia
Contents
Contents
Foreword xiii
Mathew Thorpe
1 Introduction to the Research Handbook on Family Property and the Law 1
Margaret Briggs and Andy Hayward
PART I THE ORIGINS OF FAMILY PROPERTY
2 Family property in Roman law 14
Paul J du Plessis
3 Family property law: a touchstone of long-term continuity and change
in societies 25
Alain Wijffels
4 Early modern family property: coverture and Dewar’s ‘familialisation’ 45
Emily Ireland
5 Family homes on Indigenous lands: an illumination on the complexity
of family property law 61
Jacinta Ruru
6 Matrimonial property in Islamic law 77
Rajnaara C Akhtar and Faizal Ahmad Manjoo
7 Family property in Asia 92
Jianghao Xia
8 An African perspective on family property and customary law 104
Anthony C Diala
PART II THE RECIPIENTS OF FAMILY PROPERTY: WHO BENEFITS?
9 A queer perspective on property protections in marriage and other
registered partnerships 121
Erez Aloni
10 The evolution of family law: judicial recognition of the diversity of
modern marriage-like relationships in South Africa and beyond 139
Christa Rautenbach and Mitzi Wiese
11 Property rights of cohabitants in New Zealand 158
Margaret Briggs
12 Non-conjugal couples and legislated cohabitation 176
Nausica Palazzo
13 Children and the reach of family property: the rhetoric and the reality 196
Mark Henaghan and Christian Poland
14 Family property and entitlement upon death in England and Wales 214
Brian Sloan
15 Family property entitlements on death in New Zealand 231
Nicola Peart
PART III THE RECOGNITION AND REACH OF FAMILY
PROPERTY: WHAT PROPERTY IS COVERED?
16 Classification of community property: a US perspective 249
Sally Brown Richardson
17 The legal conceptualisation of family property interests in Australia 261
Henry Kha
18 Distribution of family property in Germany: family law and beyond 278
Christiane von Bary
PART IV THE REDISTRIBUTION OF FAMILY PROPERTY: HOW IS
FAMILY PROPERTY DISTRIBUTED?
19 Matrimonial property and marital agreements in comparative perspective 293
Jens M Scherpe
20 Community of property and separation of property in Belgium:
a gradual harmonisation in the name of fairness? 307
Geoffrey Willems
21 Family property in Chile 326
Fabiola Lathrop-Gómez
22 Switzerland: participation in acquisitions 343
Alexandra Jungo and Laura von Arb
23 Bespoke justice and equitable redistribution in Ireland: an optical illusion? 359
Kathryn O’Sullivan
PART V POLICY AND FAMILY PROPERTY
24 Who’s afraid of the gold digger? 374
Sharon Thompson
25 Financial remedies in England and Wales: what about the majority? 390
Emma Hitchings
26 Feminism and family property 406
Rosemary Auchmuty
27 Family property over time 424
Allison Tait
PART VI THE FRONTIERS OF FAMILY PROPERTY
28 Burns v Burns: the fable forty years on 441
Andy Hayward
29 Remaking family property law in the Anglo Caribbean 461
Tracy Robinson
30 Family property disputes in Singapore 480
Man Yip
Index 495
Foreword xiii
Mathew Thorpe
1 Introduction to the Research Handbook on Family Property and the Law 1
Margaret Briggs and Andy Hayward
PART I THE ORIGINS OF FAMILY PROPERTY
2 Family property in Roman law 14
Paul J du Plessis
3 Family property law: a touchstone of long-term continuity and change
in societies 25
Alain Wijffels
4 Early modern family property: coverture and Dewar’s ‘familialisation’ 45
Emily Ireland
5 Family homes on Indigenous lands: an illumination on the complexity
of family property law 61
Jacinta Ruru
6 Matrimonial property in Islamic law 77
Rajnaara C Akhtar and Faizal Ahmad Manjoo
7 Family property in Asia 92
Jianghao Xia
8 An African perspective on family property and customary law 104
Anthony C Diala
PART II THE RECIPIENTS OF FAMILY PROPERTY: WHO BENEFITS?
9 A queer perspective on property protections in marriage and other
registered partnerships 121
Erez Aloni
10 The evolution of family law: judicial recognition of the diversity of
modern marriage-like relationships in South Africa and beyond 139
Christa Rautenbach and Mitzi Wiese
11 Property rights of cohabitants in New Zealand 158
Margaret Briggs
12 Non-conjugal couples and legislated cohabitation 176
Nausica Palazzo
13 Children and the reach of family property: the rhetoric and the reality 196
Mark Henaghan and Christian Poland
14 Family property and entitlement upon death in England and Wales 214
Brian Sloan
15 Family property entitlements on death in New Zealand 231
Nicola Peart
PART III THE RECOGNITION AND REACH OF FAMILY
PROPERTY: WHAT PROPERTY IS COVERED?
16 Classification of community property: a US perspective 249
Sally Brown Richardson
17 The legal conceptualisation of family property interests in Australia 261
Henry Kha
18 Distribution of family property in Germany: family law and beyond 278
Christiane von Bary
PART IV THE REDISTRIBUTION OF FAMILY PROPERTY: HOW IS
FAMILY PROPERTY DISTRIBUTED?
19 Matrimonial property and marital agreements in comparative perspective 293
Jens M Scherpe
20 Community of property and separation of property in Belgium:
a gradual harmonisation in the name of fairness? 307
Geoffrey Willems
21 Family property in Chile 326
Fabiola Lathrop-Gómez
22 Switzerland: participation in acquisitions 343
Alexandra Jungo and Laura von Arb
23 Bespoke justice and equitable redistribution in Ireland: an optical illusion? 359
Kathryn O’Sullivan
PART V POLICY AND FAMILY PROPERTY
24 Who’s afraid of the gold digger? 374
Sharon Thompson
25 Financial remedies in England and Wales: what about the majority? 390
Emma Hitchings
26 Feminism and family property 406
Rosemary Auchmuty
27 Family property over time 424
Allison Tait
PART VI THE FRONTIERS OF FAMILY PROPERTY
28 Burns v Burns: the fable forty years on 441
Andy Hayward
29 Remaking family property law in the Anglo Caribbean 461
Tracy Robinson
30 Family property disputes in Singapore 480
Man Yip
Index 495
