International Journal of Law, Policy and the Family - recent issues

The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family

Millbank, J. — 2008-07-25

This article contends that a ‘functional family’ model falters in the context of lesbian and gay intra-family disputes. Functional family arguments have frequently been misused by birth-mothers in child-related disputes between separated lesbian parents. Moreover, functional family claims have been completely excluded from consideration in disputes between lesbian mothers and known sperm donors/biological fathers. I argue that the rise of fathers’ rights movements and increasing emphasis on biological family gives both discursive and legal authority to essentialized, gendered and symbolic status claims made by biological parents, valorizing distant biological fathers over mother-led family units, and separated biological mothers over non-biological mothers.

Finding that the functional family approach cannot usefully resist the current ideological climate, this article concludes with exploration of an alternative: framing a form of parental status for lesbian co-parents based on intentionality.

Rome III - Choice of Law in divorce: Is the Europeanization of Family Law Going Too Far?

Fiorini, A. — 2008-07-25

With a proposal for a Council Regulation amending Regulation EC No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters1 (Rome III), which was published in July 2006, the European Commission seeks to create a set of harmonised choice of law rules in matrimonial matters. This proposal has given rise to diverse, often critical, reactions. This article does not provide a commentary of the proposed provisions. Instead, after a short presentation of the orientations and assumed objectives, it evaluates whether, as has been suggested, the proposal goes too far. Expressing in limine some reservations in relation to the existence and exercise of power by the Commission in this area, the author shows that while hostility against the harmonisation of choice of law rules in matrimonial matters is not justified in principle, the proposal is substantially flawed. Given the failure to address core substantive issues and the refusal to review the jurisdictional framework in which the proposed rules will operate, the article concludes that the proposed European codification of the law applicable to matrimonial causes will prove unable to solve many of the problems the initiative is supposed to correct (notably in terms of legal certainty and predictability for the parties and rush to court).

Superannuation and Divorce in Australia: An evaluation of post-reform practice and settlement outcomes

Sheehan, G., Chrzanowski, A., Dewar, J. — 2008-07-25

This article presents the findings from a national survey of property distribution on separation and divorce. The aim of the study was to evaluate the impact on settlement behaviour of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth)(‘the Act’), which allows superannuation (i.e. pensions) to be shared between former spouses on divorce. The law was reformed to facilitate a fairer distribution of the husband's superannuation benefits to the wife following divorce. The Act had the potential to increase divorced women's ability to finance their own retirement, and resolve the procedural problems that had prevented the court from being able to create a separate interest for the non-superannuated spouse at the time of settlement. Whilst these objectives were clear, the Act's effect on the pre-existing discretionary system of allocating property on divorce was harder to predict because the Act provides no direct guidance as to whether, and in what proportion, superannuation should be shared. We hypothesized, on the basis of previous research, that various procedural, legislative and social factors may limit the impact of this reform on settlement outcomes. The survey findings indicate that an unexpectedly low proportion of former spouses split superannuation. However, the high proportion of former spouses taking superannuation into account when dividing matrimonial property has increased the pool of wealth available for division post-reform, and the overall share of property received by particular groups of women has changed as a consequence. The legal, social and economic factors that were related to the uptake of superannuation splitting are also discussed.

Exploring A New Family Form - The Shared Time Family

Melli, M. S., Brown, P. R. — 2008-07-25

This is a report of a study in the state of Wisconsin of a random sample of 590 divorced mothers and fathers who shared the physical care of their children and 590 who had traditional mother custody. It examines three areas: (1) the social characteristics of the families in the survey – their education, occupations, income and family composition; (2) the living conditions of the families: residential stability and adequacy, the formation of a new family, the work hours and childcare arrangements they had, and the health of parents and children; and (3) family relationships including fathers’ contact with their child and parental relationships and disagreements. The report concludes that parents who share the care of their child post-divorce do not differ greatly from those who have traditional mother custody. The report cautions that it should not be taken as an endorsement of, or a recommendation for, a statutory presumption of shared custody on divorce. The influence of the law in changing gender roles is limited.

Education, Law and Diversity

Monk, D. — 2008-07-25

The Relationship Rights of Children

Gilmore, S. — 2008-07-25

The Best Interest of The Child as an Argument in Assessments of Parent Potential in Sweden

Lind, J. — 2008-03-13

This article examines the ways in which the best interest of the child has been used as an argument for state-authorized assessments of persons who are aspiring to parenthood, but who are not yet parents, i.e. of parent potential rather than parental performance. The policies included in the analysis concern three different areas in which assessment of parental potential is made: adoption, assisted reproduction and presumptive parents with intellectual disabilities. The status of the best interest of the child as an argument for state-authorized assessments of parent potential, I argue, varies with the amount of involvement from state authorities that is needed in the process of creating a family. The state claims the right to assess the parent potential of individuals only when it contributes to the creation of families in which there are no or only partial biogenetic links between parents and child. This does not mean that the state does not aim to encourage women who belong to what is perceived as a risk group to refrain from having children. The argument used in this effort, however, is not the best interest of the child, but the best interest of the woman herself.

Obligations Between Adult Partners: Moving From Form to Function?

Glennon, L. — 2008-03-13

It was observed at the end of the twentieth-century that in relation to family law policy in the UK, the ‘parent-child relationship was the only clearly ascertainable family relationship to which legal consequences can be attached’ and it was predicted that relational obligations between adult partners would become individually negotiable. Some considered that while parenthood would remain subject to normative obligations, the legal position of married and unmarried couples would be equated via the gradual de-regulation of marriage through increasing the capacity of adults to define the terms of their own relationships. However, recent policy and practice-based developments reveal a different picture. The purpose of this article is to consider the interaction between these mutually informing discourses and to suggest that rather than developing a more function-based approach to the imposition of intra-familial obligations, relationship status continues to carry determinative weight. Particular attention will be paid to evolving jurisprudence in the ancillary relief context which has given the fact of marriage, by itself, greater distributive consequences on divorce. It will be argued that contrary to predictions at the end of the twentieth century, the regulatory gap between married and unmarried relationships is becoming wider, and that obligations between parents which are created by the ‘joint parenting exercise’ are being confined, in both arenas, to remedial awards based upon the disadvantaged economic position of the primary caregiver.

Family, Social Inequalities, and the Persuasive Force of Interpersonal Obligation

Ferguson, L. — 2008-03-13

To date, the privatization of the costs of social inequalities for women and children has been criticized predominantly from a policy perspective. This article seeks to make a stronger case against remedying social inequalities through private law obligations by addressing the theoretical difficulties with such privatization with a particular focus on familial obligations. I take my core examples from the current Canadian understanding of the spousal and child support obligations.

My analysis proposes and proceeds on the basis of a new discourse for obligations traditionally grouped together as "Family Law" obligations: first, interpersonal obligations, which arise from and tie together two citizens through either a single interaction or through their relationship as a whole; second, social obligations, which are owed by the community as a whole to individual citizens.

I argue that the persuasive force of the focus on an individual's responsibility for another's financial need has obscured the reality of the state's obligation, the broader social obligation, to respond to this need. I conclude with a discussion of the consequences of my analysis for the future of the spousal and child support obligations. If we deny an expanded role to these support obligations, can we do so in a way that avoids leaving the impoverished in an even more precarious position?

Trends in Non-Muslim Divorces in Singapore

Chan, W.-C. — 2008-03-13

This article examines the trends and patterns in the way the secular divorce law has been utilized by couples in Singapore seeking to end their marriage. Social and demographic features of the divorcing couples, as well as the ‘fact’ relied on in support of their divorce petitions, are studied and compared to earlier analyses. It is found that while some patterns observed by earlier researchers have remained intact, others have changed. This article suggests explanations for these observed patterns and contributes to the discussion on whether and how the divorce law can be improved in Singapore and elsewhere.

Choice of Law in International Child Support Obligations: Hague or Vague, and Does it Matter?- An American Perspective

Rosettenstein, D. S. — 2008-03-13

This article explores, through American eyes, the choice of law rules associated with the child support aspects of the proposed Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It considers the role these rules play in capturing the "construct" that is the "family" for the purposes of child support by implicitly determining who is an acceptable claimant and who is an appropriate obligor. In addition, the rules determine which jurisdiction's law will establish the amount of support and thus, implicitly, they determine which jurisdiction sets the standards for family "performance". American constitutional law demands a connection between the individual to be burdened and the jurisdiction imposing that burden. The proposed rules seem designed to take this into account, but doing so requires the scheme to abandon a preference for relying on the law of the creditor's habitual residence. American child support proceedings use pre-established guidelines to determine the amount of any child support award. These guidelines, which are premised on economic conditions in the individual states, are not suited to dealing with international disputes. The cases suggest that American courts are reluctant to abandon the efficiency of the guidelines in favor of detailed fact based analysis, even if the result is an "inappropriate" order – certainty comes at a price.

Children's Rights to Representation: A Comparison Between Sweden and England

Ryrstedt, E., Mattsson, T. — 2008-03-13

In both England and in Sweden, the approach to a child's right to representation differs between public law cases and private law cases regarding legal custody/parental responsibility, residence or contact. This article discusses the basis for this distinction, and how far it accords with the best interests of the child.

Divergent Expectations and Experience: An Empirical Study of the Use Children's Contact Services in Australia

2007-12-05

In this article, an overview of the key findings from the Children's Contact Services Project is presented. Children's Contact Services (CCSs) assist separated parents to manage contact arrangements with their children through the provision of supervised visitation and changeover services. The aims of this project were to investigate the use of CCSs in Australia by referring agencies (eg. courts and legal practitioners), and clients of contact services (parents and children), and to consider the views and expectations of these key stakeholders regarding those usages. This approach was based on the assumption that there are currently conflicting usages and expectations of contact services, and that this situation could compromise children's well-being. The findings were derived from two studies. The first study involved conducting 142 in-depth interviews with representatives from the Australian Government, the courts and legal practitioners who referred families to CCSs, CCS staff and management, as well as parents and children who used CCSs. The second study comprised a quantitative analysis of client data collected by CCS staff from 396 families who had used a government funded CCS in August 2003. The findings demonstrated that in Australia, CCSs provided an invaluable service that was viewed positively by government, referral agents, CCS staff and management, and by the parents and children who used them. Despite this generally positive view, there were conflicting expectations of CCSs that, under certain circumstances, compromised children's well-being and that of their parents, particularly their residence mothers.

Pacs Seven Years on: is it Moving Towards Marriage?

Godard, J. — 2007-12-05

The French government has recently taken advantage of the reform of the law of succession (June 23, 2006) to reform the Pacte civil de solidarité which allows for a form of civil partnership between two adults (same sex and opposite sex) and provides a legal status for their relationship. The introduction of Pacs in 1999 was controversial but since then it has become popular, mainly with heterosexual couples. Gradually same-sex couples are being granted more rights and heterosexual couples are taking advantage of these changes so that the institution might be seen as becoming closer to marriage. This article argues that, while the flexibility of Pacs should remain for those who do not want commitment, a legal status should be created for same sex couples which would give them the same rights and protections as a married couple.

Fairness, Efficiency and Effectiveness in Court-based Dispute Resolution Schemes in England

Trinder, L., Kellett, J. — 2007-12-05

In recent years in England there has been renewed emphasis on court-based dispute resolution schemes (in-court conciliation) as a means to avoid the use of contested hearings in litigated contact cases. These alternative dispute resolution mechanisms are believed to be less likely to fuel parental conflict, more likely to result in an outcome tailored to individual circumstances and to be accepted by the parties as well as reducing delay and costs. Previous research has, however, raised questions about whether rapid negotiations in a highly pressurized court environment can produce a fair, safe or sustainable solution. In this paper, we draw upon a recently completed research study to explore the fairness, efficiency and effectiveness of dispute resolution schemes in litigated contact cases. Like others we raise concerns about some of the limitations of in-court conciliation. We conclude by arguing for the development of a more facilitative or educational-therapeutic approach to litigated contact cases.

Women's Rights to Equality and Non-discrimination: Discriminatory Family Legislation in Uganda and the Role of Uganda's Constitutional Court

Ssenyonjo, M. — 2007-12-05

In 1995 Uganda adopted the Constitution of the Republic of Uganda 1995 which protected a wide range of human rights including women's rights to equality and freedom from discrimination. Article 33(6) of the Constitution prohibited ‘laws, customs or traditions which are against the dignity, welfare or interest of women’. However, more than ten years later legislation, customary laws and practices have continued to be in force largely due to the lack of political will to confront issues of inequality and discrimination in a holistic and comprehensive manner. This article examines such discriminatory laws against women and the jurisprudence of Uganda's Constitutional Court in the areas of divorce, criminalization of adultery, succession and marriage laws. Using a comparative approach, it observes that these laws conflict with Uganda's Constitution as well as regional and international human rights treaties to which Uganda is a State party. It recommends that discriminatory laws should be harmonized with principles of equality and non-discrimination, and advocates for a litigation strategy.

The Involvement of Children in Decisions about Shared Residence

Skjorten, K., Barlindhaug, R. — 2007-12-05

This article discusses the relationship between law and social change in connection with the child's right to participate in decisions on residence. The empirical data are drawn from a survey of parents who have arranged shared residence for their children. In line with earlier research on children's participation in court disputes over contact and residence, we found that the age of the child is decisive regarding the degree of influence they have in private agreements. But, surprisingly, it was found that the educational level of the parents had a major impact on children's participation in decisions about shared residence. When we controlled for gender it turned out that highly educated fathers were least likely of all parents to report that the child had been taken into a co-decision process. This result might add a new dimension to our understanding of the relationship between law and social change.