Marriage as both a legal and social institution has long been the subject of critique for its role in the oppression of women. However, the institution has undergone significant change in western jurisdictions, particularly in the last few decades, which have seen (among others) divorce reform, the rise of prenuptial agreements, and the legal recognition of same-sex relationships. These—coupled with social changes in attitudes towards gendered roles within marriage—have arguably resulted in an evolution of the institution.

In this paper, I explore the extent to which the legal institution of marriage in western jurisdictions has changed to reflect greater gender equality. I draw on a number of key illustrative examples: the gendered division of labour, division of assets on divorce, the introduction of same-sex marriage, and some examples from the expanding “menu” of relationship recognition. While significant advances have been made, particularly in terms of formal legal equality, I argue that the evidence suggests that there are still important respects in which gender equality is lacking in contemporary marriage in the West.

The aim of this paper is to give a broad overview of marriage and relationship recognition, and the examples are necessarily jurisdictionally limited and not intended to be reflective of the legal position across all western jurisdictions. I have sought to provide examples from both common law and civil law jurisdictions, though the more in-depth case studies come primarily from the former.

The Evolution of Marriage and Relationship Recognition in Western Jurisdictions

Most of the literature explaining the tremendous growth of judicial review in recent decades has focused on the transition from authoritarian rule or post-conflict states and employed a broadly public choice methodology to account for the change. To the more limited extent explanations have been presented for the significant number of established parliamentary democracies that have also created or expanded judicial review during the same period, these have also mainly relied on a similar public choice framework. This article presents an alternative – or at least supplementary – account of the abandonment of traditional legislative supremacy in this latter group that is institutional in content and puts the parliamentary nature of these democracies in the center of the picture. It identifies a series of developments and changed institutional practices that have combined to undermine faith in political accountability as an effective and sufficient check on the undue concentration of governmental authority. In this way, the article argues that separation of powers concerns have been an important reason for the growth of judicial review in these countries.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2530184_code109222.pdf?abstractid=2430903&mirid=1

Separation of Powers and the Growth of Judicial Review in Established Democracies (Or Why Has the Model of Legislative Supremacy Mostly Been Withdrawn from Sale

https://onlinelibrary.wiley.com/doi/pdf/10.1111/jomf.12705

Gender and Changes in Household Wealth after the Dissolution of Marriage and Cohabitation in Germany

This paper is forthcoming as a chapter in D. Kochenov (ed.), EU Citizenship and Federalism: The Role of Rights (Cambridge University Press, 2015). The central idea builds on the popular sociological concept of sexual citizenship, assuming its link to the cluster of specific sexual rights. Such sexual rights address multiple identities based on gender, sexual orientation and other broader aspects of sexuality (including, inter alia, consumption of pornography and sex work). The author applies this broad paradigm of sexual citizenship towards federalizing evolution of EU citizenship. The result of such a critical investigation demonstrates that EU citizenship offers not only a novel transnational vision of peoplehood. It equally entails governance of sexual rights as a part and parcel of mobile European project through vertical channels of EU sexual citizenship.

/pdf/eu-sexual-citizenship-sex-beyond-the-internal-market-oq9wy9wkem.pdf

EU sexual citizenship : sex beyond the internal market

This paper considers the influence of the Supreme Court decision in Jones v Kernott on subsequent cases. It focuses on situations with which Jones was not directly concerned, namely where there is only one legal owner of a home and a non-legal-owning cohabitant seeks to establish that he has an equitable interest in it under a common intention constructive trust. The paper argues that while judges have mostly accepted that Jones is relevant to such sole-owner cases, they have had few opportunities (and taken fewer) to move beyond the restrictive approach of Lloyds Bank plc v Rosset and allow novel outcomes in the light of Jones as yet. It is contended that this state of affairs could ultimately produce a conservative approach that is undesirable for cohabitants who make indirect or non-financial contributions to shared lives, and remain without comprehensive statutory property and financial provision on relationship breakdown.

/pdf/keeping-up-with-the-jones-case-establishing-constructive-2seu958dis.pdf

Keeping up with the Jones case: establishing constructive trusts in ‘sole legal owner’ scenarios

After the Court of Appeal decision in Radmacher v Granatino, the question whether English law should introduce enforceable pre-nuptial or marital property agreements came into focus again. Taking the decision as a starting point, the article argues in favour of introducing such agreements. Adopting a comparative approach, the article explains how such agreements are used in Germany and demonstrates that the idea of private autonomy, which has been regarded as the basis of pre-nuptial property agreements in Germany since the 19th century, can explain why couples should be allowed to make their own decisions with respect to the financial consequences of the breakdown of their relationship. Analysis of the different notions of contract in German and English law as well as comparing marriage with partnerships and other long-term contractual relationships illustrates not only the historical reasons why such agreements have not been allowed so far, but also helps to understand what safeguards the legislator and the judiciary could apply to ensure that parties do not abuse their freedom.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0020589310000230

Private autonomy and marital property agreements

The recent reforms of the Polish Judiciary have sparked a lively debate in Europe on the importance of judicial independence. This Article deals with the new Polish system of selecting and appointing judges and critically assesses it in the light of European standards for judicial appointments. It then compares the new Polish system to the German system of selecting judges, which has been advanced as a point of reference for the reform by the Polish government. Finally, the Article reconsiders and challenges some of the established concepts of German constitutional law as to the selection of judges and judicial legitimacy. The Article was closed on September 2, 2017 and accepted for publication. Subsequent developments could be included until March 15, 2018. The authors would like to thank Judge Thomas Guddat and the Deutsch-Polnische Richtervereinigung (Association of German and Polish Judges) for providing valuable details on the reforms in Poland.

/pdf/selecting-judges-in-poland-and-germany-challenges-to-the-3db44llxdt.pdf

Selecting Judges in Poland and Germany: Challenges to the Rule of law in Europe and Propositions for a new Approach to Judicial Legitimacy

Neither in England, nor in Germany, nor in all Canadian provinces, does the law provide specific rules for the redistribution of property for unmarried cohabitants after the breakdown of their relationship. Instead, courts apply the law of trusts, contract and unjust enrichment with an eye to the characteristics of intimate relationships, as, for example, in decisions like the English Jones v Kernott ([2011] UKSC 53) and the Canadian Kerr v Baranow (2011 SCC 10). This article compares English, Canadian, and German case law and evaluates it both from a doctrinal perspective and as a part of a general approach towards cohabitation. The article concludes with an appeal for legislative action that strikes the right balance between party autonomy and protection of the weaker party.

Cohabitants in private law: trust, frustration and unjust enrichment in england, germany and canada

Marriage today does not only involve private interests; it is also an important legal and political issue. The question of what marriage means today and whether it should be open to same-sex unions is under debate all over the world. In many countries, for example in Germany and the United States, such questions are not only debated in the political arena, but also in relation to constitutional law. This Article will trace the development of how marriage has been understood in relation to German constitutional law and critically discuss the law's approach to same-sex marriage.

Marriage, Same-Sex Partnership, and the German Constitution

Following the article “Marriage, Same-Sex Partnership, and the German Constitution,” which was published in the German Law Journal in 2012 (see Anne Sanders, Marriage, Same Sex Partnership and the Constitution, 13 German L.J. 911 [2012]), this article provides an update on recent developments in relation to same sex partnerships in Germany. The focus of this Article is case law of the German Constitutional Court from 2002 through today, but it also discusses other court decisions in relation to the rights of same sex parents. The Article concludes with an examination of a recent draft law which—if successful—will open marriage to same sex couples. While its chances for success are extremely slim, this Article argues that same sex marriage will eventually be introduced in Germany.

Anne Sanders

Papers

Private autonomy and marital property agreements

Selecting Judges in Poland and Germany: Challenges to the Rule of law in Europe and Propositions for a new Approach to Judicial Legitimacy

Cohabitants in private law: trust, frustration and unjust enrichment in england, germany and canada

Marriage, Same-Sex Partnership, and the German Constitution

When, if not Now? An Update on Civil Partnership in Germany