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Volume 26 - March 2006

Contents

Page 2 of 3

Research Article

  • Wedded to ‘fault’: the legal regulation of divorce and relationship breakdown

  • Ezra Hasson
  • Published online by Cambridge University Press:
    02 January 2018, pp. 267-290

  • In December 2005, the Civil Partnership Act 2004 came into force, thereby enabling same-sex couples to obtain formal legal recognition of their relationships. By modelling the provisions for dissolving such partnerships on divorce law, the government effectively transposed into the new regime both a fault-based ‘system’ and the accompanying sense that the law is vested with a role beyond that of simply ending relationships. In view of the recent, but ultimately failed, attempt to introduce no-fault divorce, this paper explores the role of law in this context. Drawing on a series of interviews with key individuals involved in the reform process, it explores how no-fault divorce was hijacked in a vain effort to provide simultaneous means of saving and ending marriage. In particular, the veto wielded by an influential group of idealistic conservatives during the latter stages of the reform process is identified. Given the inability or unwillingness of reformers to confront such conservatism with either a thoroughgoing defence of diversity, or the reality of the limited capacity of states to legislate for morality, the paper calls for a re-evaluation of the law’s role. It questions whether the Civil Partnership Act 2004 represents a missed opportunity to conduct such a re-evaluation and thus to point the way for future divorce reform.

  • The remedy in conversion: confusing property and obligation

  • Nick Curwen
  • Published online by Cambridge University Press:
    02 January 2018, pp. 570-583

  • Where a defendant wrongfully detains the claimant’s goods the standard remedy in conversion permits the defendant to pay the value of the goods to the claimant instead of returning the goods. This amounts to legally sanctioned compulsory purchase. It will be argued that such a remedy is both muddled and unfair. It is muddled because it confuses a proprietary claim with a claim in tort. The action exists in a state of arrested development, never having advanced in step with the action of ejectment, which long ago ensured that wrongfully detained land could be recovered. It is unfair because it sanctions the purchase of the claimant’s goods against their will without any overriding public interest justification. The remedy in conversion needs to be unravelled to produce two distinct actions. One would be a true proprietary action that guarantees the recovery of wrongfully detained goods; the other would be a claim in tort providing personal remedies for wrongful interferences with title to goods. This can be achieved by reviving detinue but confining its ambit to the recovery of goods, leaving conversion to act as a tort.

  • Protecting or punishing children: physical punishment, human rights and English law reform

  • Heather Keating
  • Published online by Cambridge University Press:
    02 January 2018, pp. 394-413

  • This paper assesses the current state of English criminal law in relation to the use of physical force by parents as a means of disciplining their children. It does so in the light of the Children Act 2004, the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 3, pressure from bodies such as the United Nations Committee on the Rights of the Child and the law in other parts of Europe. It acknowledges that parents should have a large degree of autonomy in relation to parenting. However, the defence of ‘discipline’ or ‘reasonable chastisement’ is outdated, vague and potentially dangerous to children. It is argued that the response of the British Government to criticism of our law has been far from satisfactory. The reform which was incorporated into the Children Act 2004 as a result of pressure upon the government aims to avoid criminalising ‘ordinary families’ for minor smacks. However, the statement of principle is so diluted that parents might understandably be confused and enforcement may be difficult. Moreover, the pressure for reform has continued unabated. The paper concludes that what is needed is an outright ban, combined with an educational campaign, which can lead the way in changing the cultural tradition of physical punishment.

  • Stealing abandoned goods: possessory title in proceedings for theft

  • Robin Hickey
  • Published online by Cambridge University Press:
    02 January 2018, pp. 584-601

  • Where it is accepted in proceedings for theft that ownership of the goods allegedly stolen had been abandoned at the time they were taken, criminal courts must make determinations about the possibility of any other prior title to those goods. If a conviction for theft of abandoned goods is to be safe, the court must find a proprietary right or interest in some person other than the relinquishing owner or the defendant. This paper reviews the criminal and civil law authorities on the problem of lost or abandoned goods, and argues for a uniform approach to resolving such questions of title using the ordinary common law rules of possession.

  • The rule against inalienability – a rule without a purpose?

  • Ian Dawson
  • Published online by Cambridge University Press:
    02 January 2018, pp. 414-436

  • Promoting alienability has been a policy of the law for many years. The rule against inalienability is one aspect of that policy. This paper seeks to demonstrate that that rule throws doubt on the validity of useful provisions such as the asset-lock provisions of the new breed of community-interest companies; that, historically, it has not been applied where logically it should have been; that the related rules restricting the imposition of conditions on transfers can readily, and better, be based upon secure doctrine rather than uncertain policy; and that, overall, its repeal, if thought necessary with concurrent reforms, would be welcome.

Book Review

Review Article

Book Review

Books Received

Book Review

Books Received

Book Review

Page 2 of 3