scholarly journals Couvrez cette communauté que je ne saurais voir: Equity and Fault in the Division of Quebec’s Family Patrimony

2018 ◽  
Vol 25 (4) ◽  
pp. 569-603 ◽  
Author(s):  
Nicholas Kasirer
Keyword(s):  
Common Law ◽  
Civil Code ◽  
Judicial Discretion ◽  
Unjust Enrichment ◽  
Unequal Division ◽  
The Family ◽  
Civil Code Of Quebec ◽  
The Law ◽  
Matrimonial Law

An inquiry into the role of fault in divorce may be taken as an invitation, for the Quebec jurist, to evaluate the place of misconduct in petitions for unequal “partition'' of the family patrimony. The author proposes an analysis of article 422 of the Civil Code of Québec based on a comparison with the law of family property in common law Canada. He observes a disinclination, felt in Quebec legal circles, to explore the connections between recourses under Quebec law for unjust enrichment in marriage and parallel remedies in common law. Basing himself principally on a review of rules similar to article 422 in Ontario law, he contends that a court should not allow ordinary measures of spousal misconduct to influence petitions for the unequal division of the family patrimony. Connecting the family patrimony to the statutory remedies for unjust enrichment in Ontario matrimonial law reveals a narrow idea of economic fault that underlies the judicial discretion at article 422 C.C.Q.

“Farewell to Unjustified Enrichment?” – A Common Law Response

2016 ◽  
Vol 20 (3) ◽  
pp. 326-337
Author(s):  
Steve Hedley
Keyword(s):  
Common Law ◽  
German Law ◽  
Unjust Enrichment ◽  
Level Of Abstraction ◽  
The Law ◽  
Unjustified Enrichment ◽  
High Level ◽  
Logical Process

In this article, Professor Steve Hedley offers a Common Law response to he recently published arguments of Professor Nils Jansen on the German law of unjustified enrichment (as to which, see Jansen, “Farewell to Unjustified Enrichment” (2016) 20 EdinLR 123). The author takes the view that Jansen's paper provided a welcome opportunity to reconsider not merely what unjust enrichment can logically be, but what it is for. He argues that unjust enrichment talk contributes little of value, and that the supposedly logical process of stating it at a high level of abstraction, and then seeking to deduce the law from that abstraction, merely distracts lawyers from the equities of the cases they consider.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

scholarly journals PREWEDDING PHOTO PROCESSION AND THE ROLE OF THE FAMILY IN THEM

2020 ◽  
Vol 10 (2) ◽  
pp. 246
Author(s):  
Aulil Amri
Keyword(s):  
Islamic Law ◽  
Religious Values ◽  
Religious Knowledge ◽  
The Family ◽  
Marriage Contract ◽  
The Law ◽  
Husband And Wife ◽  
As If

In Islamic law, pre-wedding photos have not been regulated in detail. However, pre-wedding photo activities have become commonplace by the community. It becomes a problem when pre-wedding is currently done with an intimate scene, usually the prospective bride uses sexy clothes and is also not accompanied by her mahram when doing pre-wedding photos. Even though there have been many fatwas and studies on the limits of permissibility and prohibition in the pre-wedding procession.The results show that the pre-wedding procession that is carried out by the community in terms of poses, clothes, and also assistance in accordance with Islamic law, the law is permissible. However, it often happens in the community to take photos before the marriage contract with scenes as if they are legally husband and wife and the bride's family knows without prohibiting, directing, and guiding them according to Islamic teachings. In this case the role of the family is very important, we as parents must understand the basis of religious knowledge and how to instill religious values in our children since childhood is the key to this problem dilemma.

scholarly journals Family Reform and Judicial Discretion of the judge to resolve family disputes: الإصلاح الأسري وسلطة القاضي التقديرية لحل النزاعات الأسرية

2020 ◽  
Vol 4 (10) ◽  
Author(s):  
Fawzieh Salem Mubarak Busboos
Keyword(s):  
Central Place ◽  
Judicial Discretion ◽  
Great Care ◽  
The Family ◽  
Islamic Jurisprudence ◽  
Personal Status ◽  
Solid Foundation ◽  
The Law ◽  
Rule Out

Family reform and judicial discretion of the judge to resolve family disputes are one of the most important ways to protect the continuity and cohesion of the family، Islam has given the family a central place in society and has given it great care in terms of its foundation on the requirements of religion as well as in terms of its continuity on a solid foundation of intimacy and compassion. Islam as a realistic religion didn't rule out exposing this family for a series of conflicts that threaten its stability. Therefore، Islam urged to reform between the spouses whenever there is a disagreement between them. Islam gave the judge a judicial discretion in resolving family disputes. Jordanian Personal Status Law didn't deviate from what is prescribed in Islamic jurisprudence، where the judge was given a judicial discretion in resolving family disputes، A judicial discretion is the freedom that left by the law to a judge either expressly or implicitly، This is in order to choose the most appropriate and the closest solution among other solutions. We have concluded that one of the most important factors for the success of the judge in reducing family disputes is providing appropriate conditions for effort and reform attempts.

scholarly journals PERAN SAYYIDAH ‘AISYAH DALAM PEMBENTUKAN HUKUM ISLAM BERWAWASAN GENDER

EGALITA ◽  
2012 ◽  
Author(s):  
Ahmad Izzuddin
Keyword(s):  
Social Welfare ◽  
Gender Inequality ◽  
Islamic Law ◽  
Middle Age ◽  
Early Age ◽  
The Family ◽  
The Law ◽  
Role Of Women ◽  
Law Construction

Islamic law and women are one of mostly debated discourses bycontemporary Islamic thinkers particularly those who are gender issuesproponents. That discourse grows due to the accuse towards Islam thatthis religion is the source of gender inequality for women through outmuslim world especially in education, fairness and domestic freedom aswell as social welfare in the family. The assumption is that Islamic law ismale-based law. Therefore, it is a need to explore the note on Islamic lawdevelopment which is perceived from the role of women in the early age oflaw construction not from the aspect of the thought of classical ulama inthe middle age. This paper tries to explore and to discuss mainly the role ofSiti Aisyah as the teacher and the transmitter of hadith as the foundation ofIslamic law construction to underline women’s position and contributionas the law maker that it will prove that Islamic law is not merely men-basedlaw as the assumption grows.

Seeking Reconciliation

2020 ◽  
pp. 88-124
Author(s):  
Arzoo Osanloo
Keyword(s):  
Criminal Law ◽  
Cycle Of Violence ◽  
Considerable Influence ◽  
The Family ◽  
The Law ◽  
The Right ◽  
Legitimate Violence ◽  
Sense Of Power ◽  
The Way

This chapter studies the operations of the Iranian criminal law and analyzes how the procedural administration of the law animates the shariʻa. Iranian criminal laws provide many avenues for victims to forgo retributive sanctioning. But preserving the right of retribution serves several purposes: maintaining the sovereign's monopoly on legitimate violence, giving victims a sense of power, and halting the cycle of violence. The way Iran achieves this comprises an interesting balancing act between maintaining the monopoly over legitimate violence and granting individual victims the right of retribution, which its leaders believe, through their interpretation of the shariʻa, cannot be appropriated by the sovereign. Since the law categorizes intentional murder as qisas and leaves judges with no discretion in sentencing, the judges may use their considerable influence to pressure the family to forgo retribution. The chapter then considers the role of judges and examines how the laws (substantive and procedural) shape their reasoning and discretion in both sentencing and encouraging forbearance.

Compulsory Portion in Hungary

2020 ◽  
pp. 345-365
Author(s):  
Lajos Vékás
Keyword(s):  
Civil Code ◽  
Property Law ◽  
European Law ◽  
Legal Systems ◽  
Deceased Person ◽  
The Family ◽  
Matrimonial Property Law ◽  
The Creation ◽  
The Law

Following the model of continental European law, Hungarian law introduced the compulsory portion in 1853, allowing in the closest blood-relatives to benefit from the estate of a deceased person against the testator’s wishes. In the course of the latest reform, the possible abolition (or at least limitation) of the compulsory portion was raised. However, at the time of the creation of the Civil Code of 2013 the legislator took the view that the compulsory portion had already taken root in the general legal awareness of the population and that its continuation could be justified. This view was strengthened by the fact that the majority of contemporary continental legal systems, in their quest for the protection of the family, tend to recognize a claim by the closest relatives to a compulsory portion. Traditionally in Hungarian law, the descendants and parents of the deceased were entitled to a compulsory portion in accordance with the order of intestate succession. Only since 1960 has the law also recognized the spouse as a person entitled to a compulsory portion. Previously the approach was that the spouse should be compensated through the rules of matrimonial property law and intestate succession. Since 2009 registered partners have been put in the same position as a spouse. Until 2014, the extent of the compulsory portion was one-half of the intestate share of the person entitled to a compulsory portion; today it is one-third.

scholarly journals Materially Identical to Mistaken Payment

2020 ◽  
Vol 33 (1) ◽  
pp. 31-57
Author(s):  
Tatiana Cutts
Keyword(s):  
Private Law ◽  
Unjust Enrichment ◽  
The Core ◽  
Powerful Effect ◽  
Starting Point ◽  
Central Characteristic ◽  
The Law

Mistaken payment is the ‘core case’ of unjust enrichment, and it has had a powerful effect on the development of this area of private law. For Peter Birks, unjust enrichment was simply ‘the law of all events materially identical to mistaken payment’—to be shaped through a process of abstraction from that core case. But this begs the question: how do we work out what counts as ‘materially identical’ to mistaken payment? The most obvious starting point, and that which Birks chose, is the central characteristic of money: money is valuable. Thus, ‘the law of all events materially identical to mistaken payments’ is ‘the law of all events that unjustly enrich one party at another’s expense’.In this article, I argue that this starting point is incorrect. Rather than looking for some factual similarity between mistaken payment and other events, we should identify the role that money plays in justifying restitution. And what justifies restitution in the core case is not the ‘value’ or ‘benefit’ that money confers; rather, it is a defect in the legal transaction that links payor with payee. The payee is not liable because she has been ‘enriched’, but because she is the counterparty to a legal transaction which exhibits traits that there are institutional reasons to disavow. Just like contract and torts, the role of value is secondary: where correcting the injustice in specie is impossible or undesirable, the defendant must pay whichever sum will most nearly achieve that goal.

The Role of the Family Specialist and Research in the Law

1983 ◽  
Vol 32 (4) ◽  
pp. 521 ◽  
Author(s):  
Lynda Henley Walters
Keyword(s):  
The Family ◽  
The Law
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