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Philosophical Foundations of Children's and Family Law$
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Elizabeth Brake and Lucinda Ferguson

Print publication date: 2018

Print ISBN-13: 9780198786429

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780198786429.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 19 September 2019

Cohabitants, Choice, and the Public Interest

Cohabitants, Choice, and the Public Interest

Chapter:
(p.115) 5 Cohabitants, Choice, and the Public Interest
Source:
Philosophical Foundations of Children's and Family Law
Author(s):

Robert Leckey

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198786429.003.0006

Through the narrow entry of property disputes between former cohabitants, this chapter aims to clarify thinking on issues crucial to philosophical examination of family law. It refracts big questions—such as what cohabitants should owe one another and the balance between choice and protection—through a legal lens of attention to institutional matters such as the roles of judges and legislatures. Canadian cases on unjust enrichment and English cases quantifying beneficial interests in a jointly owned home are examples. The chapter highlights limits on judicial law reform in the face of social change, both in substance and in the capacity to acknowledge the state's interest in intimate relationships. The chapter relativizes the focus on choice prominent in academic and policy discussions of cohabitation and highlights the character of family law, entwined with the general private law of property and obligations, as a regulatory system.

Keywords:   cohabitation, family law, law reform, default rules, choice

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