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Law in Context

Abstract from Volume 34 No 1 (2016) Law and Love

Gay Lotharios and Innocent Eves: Child Maintenance, Masculinities and the Action for Breach of Promise of Marriage in Colonial Australia

Alecia Simmonds is an inter-disciplinary scholar whose work on the relationship between emotion, imperialism and law in the Pacific has been published in a range of international and domestic journals.

This article will focus upon the action for breach of promise of marriage in colonial Australia to reflect more broadly on the legal regulation of intimacy. Drawing upon a database of 211 breach of promise cases, I seek to explain a contradiction: almost half of the female plaintiffs in my study had illegitimate children, although a lack of virtue operated as a complete defence for (predominantly) male defendants. In spite of this, a vast majority of the women were successful. This paradox is clarified through an examination of the action in contract treatises and through an analysis of the way that the action operated as a supplement to maintenance for women with children. I conclude with a close study of a breach of promise case involving illegitimacy, as a means of examining the informal and formal norms governing love (and its discontents) in colonial Australia.

(2016) 34(1) Law in Context p58

   
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