THE BOOKSHELF

• DOI: http://doi.org/10.1111/j.174-1617.2002.tb00861.x
• Date: 01 October 2002
• Published date: 01 October 2002

THE

BOOKSHELF

John

Mee,

The Property Rights

of

Cohabitees:

An

Analysis

of

Equity’s Response in Five

Common

Law

Jurisdictions.

Portland,

OR:

Hart,

1999.

DOI:

10.1

177/153 124402237556

The review by the author/publisher provided on the cover slip begins by stating as a fact that “dis-

putes upon the termination of a marriage are usually resolved in accordance with a legislatively deter-

mined scheme.” The statement with respect to similar disputes between unmarried cohabitees states

that such disputes are not resolved based on rules developed by the courts but rather on a “straddling” of

“legal compartments falling somewhere between Equity, Property, Family, Contract and Restitution.”

The thesis

of

the book is then put forward as an “attempt to break down some of the barriers which in

the

past have hindered a full understanding of the issues involved.”

First, with respect to the purported dichotomy between the way in which disputes between those

persons who are married and those persons who are not, based on a review of the case law and the prac-

tice

of

family law generally, it can be said that as conflict within the family context is a “living conflict,”

it is evident to those who practice in the marital dissolution field (including judiciary, practitioners,

counselors, and academics) that the resolution process is one that is equally fluid. Resolution within the

context of a dispute between married persons will often consist of the application of provisions of stat-

ute, an exercise of discretion, which consists of an inherent application of the principles of equity

or

what is sometimes also termed as judge-made law and common sense.

To

this end, it would seem that

although the nature of the relationship may be different, the nature of the conflict itself is not all that dif-

ferent, particularly

in

cases where there are children.

The title of the book is broad and assertive and leads the potential reader to believe that there will be

some broad discussion of the subject and some definitive answers. The thesis as noted above promises a

better, fuller understanding of the issues. Given the nature of family law and the “living conflict,” a

broad discussion is necessary, and the expectation of a breadth of answers is reasonable. Unfortunately,

the doctrinal analysis is too narrow and often gets bogged down in doctrinal semantics giving incom-

plete answers.

This book is one that if directed to academics interested in a holistic, historical doctrinal analysis

would certainly meet its objective. The author assumes that the reader has more than a basic under-

standing and knowledge of trusts and remedies. The second chapter, which deals with trusts, is particu-

larly difficult and unnecessarily complicated, rooted in academia, which assumes a sophisticated

understanding of trust principles.

Most practitioners do not have that understanding. Most practitioners will not be interested in a

detailed theoretical assessment of the foundations of the doctrinal principles. Practitioners will be

looking to a discussion of the development of the law, which of course will include a historical context

and analysis but will focus on not only where the law has been and how it is inconsistent in its strict

application of principles but also where it is going and how it will meet the needs of the area of family

law and the clients themselves.

In the early chapters dealing with trusts, the author and many of the early cases attempt to rely on

and import corporate/civil principles into the family context. The difficulty, it is argued, with common

intention and the determination

of

the parties’ intentions is that at times this requires an “assumption.”

In the family context, looking to assumptions is absolutely necessary given the human element.

A

purely doctrinal approach does not address inequities but rather helps to perpetuate and, at times, create

them.

This book

is

successful in its objective of testing theoretical credentials of approaches of a purely

doctrinal perspective.

It

is

too narrow, however, in its approach. There is little discussion of the doc-

FAMILY COURT REVIEW, Vol.

40

No.

4,

October

2002

533-534

0

2002

Asrociation

of

Family and Conciliation

Courts

533