'Leaving Nothing to Chance'?: Joint Tenancies, The 'Right' of Survivorship and Unilateral Severance

The joint tenancy with its inherent right of survivorship is the most prevalent form of co-ownership in the common law world today. Most couples will be joint tenants of a family home, while relations (such as siblings) who purchase property together may opt for this arrangement. Inter vivos acquisitions aside, the huge intergenerational transfer of wealth within families on death can result in a joint tenancy, and it may also be a convenient estate planning device. The fact that property automatically vests in the surviving joint tenants on death is the reason why many people choose this form of co-ownership. However, there is one serious disadvantage. A joint tenancy is an inflexible form of landholding where relationships sour or family circumstances change over time, and co-owners want their respective `shares' of the property to pass to someone else on death. Where consensual severance is not possible, one joint tenant can sever unilaterally. The latter mechanism is vital in terms of giving effect to the wishes of the severing joint tenant, especially in situations of discord or a breakdown in relations with their fellow co-owners. However, unilateral severance also has serious implications for the non-severing joint tenant(s) who expected to inherit property through survivorship, and can impact significantly on ownership of the home and other family property. This article looks at unilateral severance as a means of subverting the right of survivorship. The focus is on personal and inter-family relationships, and the various legal issues and policy considerations associated with unilateral severance across the common law jurisdictions of Britain, Ireland, Australia, Canada, and New Zealand. It assesses the various methods of effecting unilateral severance and proposes specific measures, as well as considering novel arguments for preventing unilateral severance based on contractual agreements to the contrary and proprietary estoppel.

The right of access to a lawyer in terrorist cases

This is a survey of the applicable international human rights standards concerning the right which alleged terrorists have to access a lawyer.

A “Child’s Rights Perspective”: The “Right” of Children and Young People to Participate in Health Care Research

As all human beings are consumers of health care provision across the life span and in receipt of care delivered by accountable health care professionals, all should have the right to be involved in shaping the future of their own health care. Rights-based participation, when applied successfully, has the potential to inform and influence the delivery of child health care, the child’s experience of health care, plus children’s nursing education (Coyne & Gallagher, 2011). The “right” of every child and young person to participate in research that relates to their own health care is also sustained by the author’s lead position as a Senior Lecturer in Higher Education for pre-registration children’s nursing in Northern Ireland and the appreciation of their voice when practicing as a registered children’s nurse and ward sister. The report provides an insight into seminal work on human and child rights; the historical context of children in Western society, and the evolution of children’s nursing amid the child’s right to participate in shaping their own health care.

On the 'inherent' character of the right of states to self-defence

While there is no lack of studies on the use of armed force by states in self-defence, its qualification as an ‘inherent right’ in article 51 of the Charter of the United Nations has received little scholarly attention and has been too quickly dismissed as having no significance. The present article fills this gap in the literature. Its purpose is not to discuss the limits to which article 51 or customary international law submit the exercise of the right of self-defence by states, but to examine what its 'inherent’ character means and what legal consequences it entails. The article advances two main arguments. The first is that self-defence is a corollary of statehood as presently understood because it is essential to preserving its constitutive elements. The second argument is that the exercise of the right of self-defence must be distinguished from the right itself: it is only the former that may be delegated to other states or submitted to limitations under customary international law and treaty law. The right of self-defence, however, cannot be alienated and it takes precedence over other international obligations, although not over those specifically intended to limit the conduct of states in armed conflict or over non-derogable human rights provisions.

RE Kevin and the right of transsexual persons to marry in Australia

This article considers the decision of the Family Court of Australia in Re Kevin (Validity of Marriage of a Transsexual) [2001] FamCA 1074, which was upheld by the Full Court of the Family Court of Australia in February 2003. Re Kevin was the first case in Australia to deal directly with the question of whether a transsexual person could marry under Australian law. In the past, Australia had adhered to the judgement of Ormrod J in Corbett v Corbett [1971] P. 83, which set the benchmark for what is ‘male’ and what is ‘female’ under the common law. Prior to Re Kevin the question of what is a man and what is a woman for the purposes of marriage in Australia mirrored the strict biological test established in Corbett. In other words, the Australian courts relied upon biological factors, as espoused by Ormrod J, when determining a person's true sex. In Re Kevin, Chisholm J examined in detail what it is to be a man or woman, but unlike Ormrod J considered ‘brain sex’ to have a significant impact on a person's view of their own innate sexual identity. The Full Court of the Family Court agreed with the powerful and well-reasoned judgement of Chisholm J at first instance.

Preventative detention and the right of personal liberty and security under the International Covenant on Civil and Political Rights, 1966

Preventive detention enables a person to be deprived of liberty, by executive determination, for the purposes of safeguarding national security or public order without that person being charged or brought to trial. This paper examines Article 9(1) of the International Covenant on Civil and Political Rights, 1966 to assess whether preventive detention is prohibited by the phrase 'arbitrary arrest and detention '. To analyse this Article, this paper uses a textual and structural analysis of the Article, as well as reference to the travaux preparatoires and case law of the Human Rights Committee. This paper argues that preventive detention is not explicitly prohibited by Article 9(1) ofthe International Covenant on Civil and Political Rights 1966. If preventive detention is 'arbitrary', within the wide interpretation of that term as argued in this paper, it will be a permissible deprivation of personal liberty under Article 9(1) of the International Covenant on Civil and Political Rights, 1966. Preventive detention will, however, always be considered 'arbitrary' if sajeguards for those arrested and detained are not complied with, in particular the right to judicial review of the lawfulness of detention.