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Legal Recognition of Non-Conjugal Families: New Frontiers in Family Law in the US, Canada and Europe (eBook)


ISBN13: 9781509939961
Published: February 2021
Publisher: Hart Publishing
Country of Publication: UK
Format: eBook (ePub)
Price: £76.50
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This book argues that insufficient recognition of new families is a legal problem that needs fixing in light of recent evolutions in family patterns and normative conceptions of 'family'. People increasingly invest in relationships falling outside the model of the marital family, such as non-conjugal unions of friends or relatives, polyamorous relationships and various religious-based families. Despite this, Western jurisdictions retain the marital family as the relevant basis for allocating family law benefits, rights and obligations.

Part I of the book illustrates recent evolutions in family patterns and norms, and explores how law can accommodate multiple family grids without legal recognition involving normalisation. Part II focuses on courtroom litigation on the basis that courts nowadays are central avenues of social change. It takes non-conjugal families as a case study and provides an analysis of the most compelling argumentative strategies that non-conjugal families can mobilise to pursue legal recognition in Canada and the United States, and within the systems of the European Convention of Human Rights and the European Union.

Through its comparative, interdisciplinary and critical legal method, the book provides scholars, activists and policymakers with conceptual tools to tackle the current invisibility of new families. Further, by advancing legal arguments to enhance the protection of non-conjugal families in courtrooms, the book illuminates the different approaches jurisdictions are likely to take and the hindrances thereof to overcome and debunk stereotypes associated with proper familyhood.

Subjects:
Family Law, eBooks
Contents:
Table of Cases
Table of Legislation
Acknowledgments
Preface
PART I. NEW FAMILIES AND LAWMAKERS
1. NEW FAMILIES
1. What is the 'New' Family?
I. Evolution in Family Patterns
II. Evolution in Normative Conceptions of Family
III. Law's Friction with the 'New' Family
2. Methodology
I. Why Legal Strategies
II. Why Focus on Non-Conjugal Couples
III. Comparative Method and Family Law
2. REMEDIES TO PROTECT NEW FAMILIES
1. Discarded Remedy
I. Marriage
2. Potential Remedies
I. Ascription
II. Contractual model
III. Registration
IV. Mixed Remedies
Conclusion: A Better Model?
PART II. NON-CONJUGAL FAMILIES BEFORE COURTS
3. UNITED STATES
Introduction
1. Changed Landscape of Family Structures and Family Law in the US
2. Venue
3. Remedy
I. Constitutional Litigation: Extension of specific familial benefits
II. Family Law Litigation: Extension of specific familial benefits
4. Legal Arguments in Constitutional Litigation
I. Equal Protection
II. Due Process
III. Freedom of Association
5. Legal Arguments in Family Law Litigation
I. Judicial Updating
II. Overinclusiveness and Underinclusiveness of Marriage
Conclusion
4. CANADA
Introduction
1. Changed Landscape of Family Structures and Family Law in Canada
2. Venue
3. Remedy
I. Constitutional Litigation: Extension of specific familial benefits
II. Litigation before Human Rights Tribunals: Extension of specific familial benefits
4. Legal Arguments in Constitutional Litigation
I. Marital Status Discrimination
II. Family Status Discrimination
5. Legal Arguments in Human Rights Litigation
I. Family or Civil Status Discrimination
Conclusion
5. THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Introduction
1. Changed Landscape of Family Structures and Family Law in Europe
I. The Sub-Constitutional Landscape
II. The Constitutional Landscape
2. Venue
3. Remedy
I. Stage 1: Extension of specific familial benefits
II. Stage 2: A Comprehensive Approach (registration)
4. Legal Arguments Before the ECtHR
I. Stage 1: Protection of Family Life and Ban on Discrimination
II. Stage 1: Protection of Property and Ban on Discrimination
III. Stage 1: General Ban on Discrimination
IV. Stage 2: Oliari-style Protection of Family Life
Conclusion
6. THE EUROPEAN UNION
1. The European Union and Family Law: A Complex Relationship
2. Remedies
I. An Area-specific Approach
3. The relevant case law of the Court of Justice
I. Directive on Equal Treatment in Employment
II. Staff Regulations
III. Citizens' Right Directive
Conclusion
Bibliography
Index