Property plays a key role within our family lives. Moreover, we may tend to perceive that there is something inherently ‘special’ about the family, which means that it – and the property associated with it – should be set apart, and treated differently, to the various forms of partnership located within other areas of the law. Yet, significant questions remain around the concept of ‘family property’, with understandings and perspectives varying across both jurisdictions and time. For instance, what does this term mean and encompass? Who does/should benefit from ‘family property’? How is it/should it be distributed? To what extent should the state even be regulating family property affairs? Briggs and Hayward’s new edited collection aims to speak to such questions, drawing on expert legal insights from 33 contributors around the world.

The book is separated into six parts, with the first considering ‘the origins of family property’. The authors, within Part I, conduct historical analyses as part of which they commonly identify the ways in which notions of property have helped to maintain patriarchal structures of power. Du Plessis, for instance, addresses Roman law and particularly the authority of the pater familias, whilst Ireland concentrates on coverture within England and Wales, under which, upon marriage, the wife’s property would pass over to her husband. Other chapters within this part – consistently with the book’s wider aim of including a range of ‘voices’ – think about how ‘family property’ systems are able to accommodate religious concerns (and, indeed, how they can struggle to do so). Ruru, for example, identifies difficulties experienced in New Zealand in its attempt, via national law, to make provision for Indigenous laws and customs, specifically in relation to the family home. Akhtar and Manjoo further consider the modernisation of family laws across Muslim states in recent decades, and how that sits against more ‘classical’ Islamic jurisprudence.

Part II proceeds to think about who is impacted by ‘family property’, which relationships are included within the relevant legal frameworks, and what the implications of that might be. Chapters within this part focus on the issues raised by an assortment of relationship types – including those that are non-conjugal and queer – in addition to entitlements upon death and succession. Aloni’s chapter, for instance, acknowledges that same-sex relationship recognition has offered gay and lesbian couples property rights which they previously were unable to access, but highlights that the property rules that accompany such recognition are rooted in traditional, heteronormative models. He emphasises how the assumptions associated with these models may not be a good ‘fit’ for same-sex partners, who will commonly adopt more ‘diverse, equal and flexible approaches to household finances’ than their different-sex counterparts.1 Briggs, in her chapter, sets out the position in New Zealand in terms of recognising cohabiting relationships, who have been treated in much the same way as married couples there since 2001. Adopting a ‘functionalist’ (rather than ‘formalistic’) approach, the rationale is applied that the issues faced by couples are much the same regardless of relationship form, and that failure to formalise a relationship is often not simply a matter of active choice. The view is taken, Briggs explains, that it is crucial, in any event, to ensure that those who are financially vulnerable are protected when their relationships end. Briggs’s chapter offers insight and inspiration at a point where, in England and Wales, we eagerly anticipate law reform within this area as a result of the Labour Government’s manifesto commitment to ‘strengthen the rights and protections available to women in co-habiting couples’.2

Part III moves on to look at how ‘family property’ is conceptualised, and what kind of property is covered by ‘family property’ rules. Contributions within this part reflect on the positions adopted within the United States, Germany and Australia. Both of the latter two chapters particularly engage with the highly topical debate as to whether to favour a rule- or discretion-based approach to the distribution of property; notably, this is again of interest to an English and Welsh audience, as we await the Law Commission’s scoping paper on financial remedies (which, at the time of writing, is due for completion in November 2024).3 Kha, for example, whilst being mindful of the challenges surrounding judicial discretion, argues that the adoption of a wide definition of ‘family property’ in Australia has helped to generate ‘fairer’ outcomes by enabling ‘a comprehensive assessment of financial assets that is based on substance rather than form’.4 Part IV proceeds to revisit the ‘rules versus discretion’ debate in addressing in detail how ‘family property’ is distributed in the event of relationship breakdown or death. Scherpe initially offers comparative observations relating to various approaches towards ‘marital’/‘matrimonial’ property, before other chapters place the spotlight on the approaches adopted in Belgium, Chile, Switzerland and Ireland.

Part V raises some of the central difficulties faced when attempting to form policy within this area. It considers factors such as class, wealth and gender, which can impact how property is allocated. Thompson’s chapter, for example, flags up the ‘gold digger’ as a cross-cultural, international phenomenon, and points out how it can inflict a ‘triple blow of discrimination’ (with the stereotype generally being applied to women seeking relationships with wealthier men, who may be in a different social class to them).5 She draws on a fascinating story from China to demonstrate how this stereotype has influenced ‘family property’ law and policy in a way that extends significantly beyond the West. Women, Thompson argues, can be labelled as ‘gold diggers’ irrespective of their own intentions. However, this stereotype is laden with gendered power; as Thompson explains:

‘If a man has property to protect, then claiming his female partner might be more interested in his money than his love […] gives him leverage in divorce settlements. It gives him the upper hand in prenuptial agreements. And, in some cases, it can excuse him from financial liabilities he would otherwise incur.’6

It is important to be cognisant of this power when assessing whether, and how, the law should be reformed, and indeed when exploring constructions of entitlement that may feed into any such reform decisions. Hitchings subsequently highlights the underexamined experiences of those divorcing couples who settle their financial matters outside the formal legal system, without obtaining a financial order. She emphasises that there is still not enough known about what this ‘outsider’ population are doing, and how they are reaching decisions in terms of their finances and property. It is essential, she argues, that the law develops in more of a data-led, ‘bottom-up’ way, reflecting the ‘lived reality’ of ‘everyday’ couples.7

Lastly, the authors in Part VI are thinking about ‘family property’s’ outer boundaries, or ‘frontiers’. Whilst Robinson analyses how Anglo Caribbean states remade their law of ‘family property’ following their independence, Yip draws attention to how judges in Singapore have questioned the suitability of applying English trust principles within their jurisdiction (especially given the significance attributed there to intergenerational connection). Hayward’s chapter additionally focuses on the widely known case of Burns v Burns [1984] Ch 317, under which Valerie Burns was unable to establish a proprietary interest in the family home after a 19-year cohabiting relationship with Patrick Burns, and having cared for their two children. The chapter addresses important questions around the ways in which Burns is being utilised today, contemplating the extent to which ‘strategic litigation’ can prove helpful. Hayward himself identifies the ‘timeliness’ of such an investigation, given that practitioners have sought a more recent ‘test case’ on cohabitation to create pressure to change the law (in much the same way as occurred with Owens v Owens [2018] UKSC 41 in relation to the laws of divorce).8 On the one hand, he suggests that Burns has been perceived to exemplify ‘all that is wrong with the law’, demonstrating how ‘unsympathetic’ it is to the ‘messiness of home sharing’; in that sense, the case has amounted to a ‘focal point for activism’.9 On the other hand, some have viewed the case as an ‘atrocity tale’, warning women of the risks of cohabiting without getting married. Interestingly, Hayward explains how Mrs Burns was unable to see herself in the ways in which her matter has been academically ‘retold’. Consequently, whilst he stresses that it may well be the case that Burns would be decided in much the same way were it to reach the courts today (given that ‘non-financial contributions remain undervalued and ignored by the law’), Hayward also calls for greater ‘caution’ and ‘precision’ in how we deploy this landmark case.10

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.