Open AccessFamily Law Property Settlements: A Liberal Theoretical Framework for Law Reform
Author(s) -
C Turnbull
Publication year - 2019
Publication title -
qut law review
Language(s) - English
Resource type - Journals
eISSN - 2205-0507
pISSN - 2201-7275
DOI - 10.5204/qutlr.v18i2.751
Subject(s) - law , discretion , property law , property (philosophy) , foundation (evidence) , sociology , settlement (finance) , economic justice , consistency (knowledge bases) , law and economics , human settlement , premise , family law , classical liberalism , liberalism , political science , property rights , economics , mathematics , politics , philosophy , epistemology , engineering , geometry , finance , payment , waste management
This article sets out a law reform framework for family property settlements, drawn expressly from a theoretical foundation. It applies Rawls’ theory of justice, which falls under a liberal philosophical umbrella. It explains the choice of a liberal theory for use in family property settlements and constituent elements of Rawls' theory of justice. Drawn from Rawls' theory, four foundation principles emerge. These are the rule of law (including transparency, consistency, and clear purpose), non-discrimination between spouses, recognition of financial disadvantage, and priority to the economic interests of children. From those principles, this article constructs the elements of a potential alternative property settlement law combining a rule of equal division while retaining judicial discretion for specific purposes.