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

Law, Pluralism and the Family In Kenya: Beyond Bifurcation of Formal Law and Custom

Kamau, W. — 2009-05-05

Family law in Africa has been is characterized by pluralism where customary, religious and state laws co-exist within the same social context. However, this plurality is marked by a false dichotomization of formal law and custom. Under the law/custom dichotomy, people are deemed to be governed by one system of law to the exclusion of all others and to order their family lives within the boundaries of that system. However, this bifurcation runs counter to the reality on the ground, as people's family lives in Africa constantly traverse the boundaries of legal systems. This is particularly true of cohabitation relationships, which defy conventional categorizations of family law systems. This article examines the ways in which prevailing legal policies and judicial attitudes in Kenya have impacted on women's claims to property and maintenance upon breakdown of the cohabitation relationship. The article argues that the bifurcatory approach stems from an erroneous conceptualization of customary law, manifested in a weak form of legal pluralism that does not give effect to people's experience of the intersection of legal orders. In thinking about reform of family law in the African context, there is need for an approach to legal pluralism that pays attention to people's perception of their normative context and how such perception shapes their attitudes and actions. This would help in developing a legal framework that is more in tune with people's lived reality, particularly that of women.

From Angelina (To Madonna) to Zoe's ark: What are the 'A-Z' Lessons for Intercountry Adoptions in Africa?

Mezmur, B. D. — 2009-05-05

Between 2005 and 2007, three relatively highly publicized intercountry adoption-related cases revitalized Africa's concern over the rights of children in intercountry adoption. These cases are the Angelina case in Ethiopia, the Madonna case in Malawi, and the Zoe's Ark case in Chad. The thesis of this article is that there are systemic vulnerabilities and gaps in the current intercountry adoption systems in Africa that make adoption irregularities and scandals, such as the ones in the three cases under consideration, to an extent predictable. Therefore, an investigation of some of the lessons that can be drawn from the three cases is embarked upon. The article concludes by highlighting that, although the three cases do not hint at the full picture of complications that may arise as a result of intercountry adoptions in Africa, they offer critical lessons – and we ignore these lessons at the cost of our children's well-being.

Donor-Conceived People's Access to Genetic and Biographical History: An Analysis of Provisions in Different Jurisdictions Permitting Disclosure of Donor Identity

Blyth, E., Frith, L. — 2009-05-05

Donor conception has been practised for many years, initially as a means of bypassing male fertility problems through the use of donated semen. More recently, semen donation has provided a means by which a single woman and women in same sex relationships may build a family without engaging in penetrative heterosexual intercourse, while embryo and egg donation have provided new family-building opportunities for other groups, such as post-menopausal women. A key topic of debate, policy formulation, and regulation has been the extent to which donor-conceived people should be enabled to ascertain information about their genetic and biographical history. Currently, a minority of jurisdictions allow donor-conceived individuals to learn the identity of their donor. This article examines relevant provisions in these jurisdictions, identifying their similarities and differences, and outlines further measures that can be taken to promote the ability of donor-conceived people to learn about their genetic and biographical history.

Comity, Family Finances, Autonomy, and Transnational Legal Regimes

Rosettenstein, D. S. — 2009-05-05

The doctrine of comity in Anglo-American private international law jurisprudence requires a court to justify a refusal to recognize family financial arrangements arising from activities in a foreign country. The justification usually advanced is public policy. This article examines the contours of the interface between the demands of comity and the justifications of public policy, against the backdrop of a case in which an American state court declined to recognize a strict title property regime flowing from a marriage contract entered into by a Muslim couple in the course of an arranged marriage in Pakistan. In particular, the article focuses on three key concerns of public policy – the ‘fairness’ of the foreign process; the actor's ‘choice’; and the ‘content’ of the foreign arrangement. With the parties’ autonomy increasingly respected in domestic financial arrangements – particularly in the context of prenuptial agreements – the article argues that such respect ought to be extended to foreign arrangements as well, except to the extent that the foreign regime adversely impacts the state's own interests, as distinct from the domestic jurisdiction's perception of the parties' interests.

Mothers and the Child Protection System

Douglas, H., Walsh, T. — 2009-05-05

Child protection intervention has increased dramatically in Australia and elsewhere over recent years. The increased intervention has left many parents, especially mothers, feeling bewildered, confused, and distrustful of the legal system. There has been limited research conducted about the experience of mothers involved in legal processes associated with child protection intervention. Drawing on information gathered from focus group discussions with workers who support mothers in child protection interventions, this article explores the role of parent advocates in the child protection sphere. The article concludes that parents should be supported by an advocate at all levels of the child protection intervention process and where this is not possible, strong information sharing protocols should be developed.

Child Abuse: Law and Policy Across Boundaries

George, R. H. — 2009-05-05

Child Support Policy in Australia and the United Kingdom: Changing Priorities But A Similar Tough Deal for Children?

Fehlberg, B., Maclean, M. — 2009-02-25

This article examines shifts in child support law and policy in Australia and the UK since the establishment of child support schemes in both jurisdictions from the late 1980s. Our analysis suggests that while original policy goals in Australia and the UK were broadly similar, they also diverged in important respects. Further, legislative and operational elements of the respective schemes as originally enacted have played a key role in influencing subsequent shifts in the substance and policy of the regimes. Yet the practical implications of currently diverging law and policy approaches are likely to be similar, in that most fathers will pay less child support in the future.

Recent Trends in Child Maintenance Schemes in 14 Countries

Skinner, C., Davidson, J. — 2009-02-25

Changes in family formations in western industrialized countries since the 1960s have not been reflected in cross-national research in the area of child maintenance. This article outlines child support regimes in 14 countries, considering the locus of formal decision making, the determination of child maintenance obligations – highlighted by way of national informant responses to two fictitious vignette scenarios – and the enforcement and penalty provisions used in the event of non-compliance. The article concludes that while some broad trends can be identified across countries, there is diversity in how countries respond to family change.

A Critical Appraisal of 'Triple Divorce' in Islamic Law

Ahmad, N. — 2009-02-25

The issue of the ‘triple divorce’ is regarded as highly sensitive among the Muslims, not only in India but elsewhere. The Holy Qur’an is very cautious in matters of divorce. Three talaqs have to be spaced over a period of 3 months to give husband and wife time for reconciliation through the intervention of relatives and friends. Moreover, talaq can be pronounced only when the wife is in a state of tuhur, ie purity after menstruation. Yet, despite clear Qur’anic injunctions to the contrary, immediate triple divorce is permitted, destroying marital life in one breath. The practice of immediate triple divorce is widespread among Sunni Muslims and has legal validity. Even then the jurists call it a talaq-e-Bidat (innovative form of divorce). The dispute has been highlighted by reports of some Muslims instantly divorcing their wives by mail, over the telephone, and even through mobile phone text messages. This article explains the different theories of divorce prevailing in the contemporary Muslim world and what checks and restraints have been imposed by Islam over the exercise of husband's power of talaq. The article critically appraises the ‘innovative triple divorce’ by examining whether it is sanctioned by the Holy Quran or the sunnah and if there is a consensus of opinion (ijma) on the effectiveness of triple divorce.

'Where the Parents are of the Same Sex': Quebec's Reforms to Filiation

Leckey, R. — 2009-02-25

To advance debates on legal responses to parenting by gay and lesbian couples, this article introduces reforms enacted by the legislature of Quebec, a civil law jurisdiction with a codified private law, in 2002. Quebec's pioneering regime permits two persons of the same sex to register as a child's parents from birth, not only by adoption. They may do so if they conceived the child as part of a ‘parental project’. Moreover, a person alone may have a child via a parental project. The article identifies the policy choices reflected in the amendments and highlights weaknesses in the drafting, instructive to policy makers in civil law or common law jurisdictions. It emphasizes the structural difficulty of amending the civil law's fundamental institution of filiation to recognize two parents of the same sex. Comparing with ad hoc judicial developments from a Canadian common law province, it underscores the potential in systematic legislative reform. Conservative scholars have resisted the new regime as an inappropriate departure from the pursuit of filiation's biological vocation. The study reveals how selectively jurists may remember the past and how swiftly they may characterize innovations relating to parentage – such as the earlier abolition of illegitimacy – as natural. The mingling of biological fact and fiction in the new regime underscores the similar blending in more traditional forms of filiation.

Routinization of Divorce Law Practice in China: Institutional Constraints' Influence on Judicial Behaviour

He, X. — 2009-02-25

Based on in-depth fieldwork investigations and extensive interviews, this article demonstrates that adjudication has replaced mediated reconciliation and become the dominant way of handling seriously contested divorce petitions in contemporary China. Specifically, for first-time petitions, judges routinely render against divorce. But for second-time petitions, they routinely render adjudicated divorce. This shift is closely linked to recent reforms in the Chinese judiciary and especially the assessment criteria imposed on courts and judges. This article thus argues that the assessment criteria and the institutional constraints of Chinese courts more generally have overwhelmingly affected, if not dictated, the decision-making process of Chinese judges.

Public International Law and the Regulation of Private Spaces: Does The Convention on the Rights of the Child Impose an Obligation on States to Allow Gay and Lesbian Couples to Adopt?

Tobin, J., Mcnair, R. — 2009-02-25

Opposition to the adoption of children by gays and lesbians is invariably based on the claim that such a practice is contrary to the rights and best interests of children. The aim of this article is to examine this claim in light of the provisions of the United Nations Conventions on the Rights of the Child. It will be argued that an approach to the interpretation of a child's rights and best interests which is based on empirical evidence reveals that there is no basis for sexual orientation to be a relevant consideration in assessing a person's suitability to adopt a child.

The Removal Of Donor Anonymity in The UK: The Silencing Of Claims By Would-Be Parents

turkmendag, I., Dingwall, R., Murphy, T. — 2008-09-30

From 1 April 2005, UK law was changed to allow children born through gamete donation to access identifying details of the donor. The decision to abolish donor anonymity was strongly influenced by a discourse that asserted the ‘child's right-to-know’ their genetic origins. The main consequence of this reform has been an acute shortage of donors. However, little has been heard from those most directly affected, would-be parents. It is not clear to what extent they have chosen to remain silent or have been silenced by exclusion from the public realm of debate. This article reports the findings of a qualitative study of an online support group for people undergoing donor conception. These suggest that would-be parents feel intimidated from publicly voicing their concerns about the impact of the donor shortage. However, their understandings of welfare and kinship are very different from those of the policy elites responsible for this legal reform. Their reluctance to mobilize around these partly reflects the variety of ways in which they can avoid the impact of this legislation. The new disclosure policy has increased subterfuge rather than openness.

The Dutch Approach To Informal Lifestyles: Family Function Over Family Form?

Schrama, W. M. — 2008-09-30

In this article, the Dutch approach to informal lifestyles will be analysed on the basis of legal developments during the period 1970–2006 in a number of legal areas, such as landlord and tenant law, inheritance tax law, and social security law. The debate between family function and family form is the point of departure. This is highly relevant, since the number of couples living together unmarried is steadily increasing in the Netherlands. Non-marital cohabitation actually consists of a number of different types, including pre-marital, post-marital, and long-term cohabitation. However, surprisingly little sociological data on informal lifestyles are available, so it is difficult to combine sociological research with legal data. The results of the legal analyses demonstrate that the Dutch legal system has generally accepted non-marital cohabitation in most areas by recognizing both the emotional and economic ties between cohabiting partners. However, in the fields of family law, inheritance law, and criminal and criminal procedural law, informal lifestyles are mostly ignored. This is hardly acceptable, taking into account the aim of most of the provisions, which is generally not so much the recognition of the family form as such, but the recognition of the underlying family functions. In this respect, the form over function fields should be fundamentally reconsidered in order to do justice to the changed social reality.

Realizing South African Children'S Basic Socio-Economic Claims Against Parents And The State: What Courts Can Achieve

Bonthuys, E. — 2008-09-30

There are two systems for realizing South African children's basic socio-economic rights: the ‘private’ system for claiming maintenance from parents and the ‘public’ system of child welfare. This article compares the courts’ responses to problems in realizing children's rights in these two systems, focusing particularly on the emerging jurisprudence dealing with recalcitrant social welfare departments. Although courts have been willing to adopt innovative and severe measures against private maintenance defaulters, a similar willingness to issue drastic orders against malfunctioning government departments only arose once it became clear that they were deliberately ignoring court orders. Failures in both systems have prompted the courts to craft original, socially responsible legal rules and to limit the technical defences that prevent the realization of constitutional rights. In the welfare cases, courts have assumed sweeping remedial powers against government officials, relying on the claimants’ fundamental constitutional rights. The article concludes by setting out the limits of court intervention in ensuring effective realization of children's rights, especially for the most disadvantaged children.

The South African Civil Union Act 2006: Progressive Legislation With Regressive Implications?

Smith, B. S., Robinson, J. A. — 2008-09-30

A ground-breaking judgment handed down by the Constitutional Court on 1 December 2005 gave parliament 1 year within which to promulgate legislation that facilitated same-sex marriage in South Africa. In response, the Civil Union Act 17 of 2006 came into operation on 30 November 2006. This Act provides for the solemnization and registration of a civil union in the form of either a marriage or a civil partnership. While it can be accepted that the Act allows persons of the same sex to conclude a civil union, the position of heterosexual persons appears to be less certain – a situation which requires urgent attention due to the lack of legal protection currently afforded to cohabitants who have not formalized their relationships. This problem is exacerbated by a number of anomalies created by judicial intervention (prior to the promulgation of the Act), in terms of which certain benefits of civil marriages were extended to same-sex unmarried couples while their heterosexual counterparts were left out in the cold. After elucidating the interpretative difficulties caused by the Act, attempting to shed some light on a number of the anomalies alluded to above and briefly analysing the comparable marriage and marriage-like relationships encountered in Dutch law, this contribution concludes that the Civil Union Act is a badly-drafted piece of legislation that has only served to further fragment an already disjointed legal landscape.

Islamic Principles On Adoption: Examining The Impact Of Illegitimacy And Inheritance Related Concerns In Context Of A Child'S Right To An Identity

Ishaque, S. — 2008-09-30

The basis of this article is essentially the subject of a child's right to an identity in context of the Islamic practice of ‘adopting’ children, known as ‘Kafalah’. An analysis, with particular focus on the role of names in the formation of an identity, will be made of Islamic principles. The discussion will also consider the right to an identity with particular reference to illegitimacy and inheritance, which are related issues that present serious repercussions for Kafalah children. An argument will further be presented as to whether any protection can be afforded to children who have been placed in Kafalah. The main issue of this article will essentially revolve around the importance of surnames and the role these play, not only in context of history and culture but also in regards to the social reality along with a sense of being for such children in their particular environment. The article will argue that when considering issues of identity, such as names, one has to be mindful of core values, which are universal and thus can provide a window into entering a dialogue with the ultimate aim of protecting the child.

Co-Working Partners: The Influence Of Legal Arrangements

De Ruijter, E., Braat, B. — 2008-09-30

The self-employed can benefit from having their partner work in their business due to fiscal benefits, low wage costs, and a lower risk of opportunism, following from the integration of business activities with a significant partner relationship. However, if the intimate relationship ends, the co-working partner's investments in the firm are lost. Legal arrangements, such as marriage, can protect the co-working partner and reduce the risks associated with co-working. This article focuses on the influence of the legal arrangements (of the partner relationship and the business) and the stability of the relationship on the decision of the partner to participate in the firm. Using data from the Households in the Netherlands Survey 1995 (HIN95), analyses reveal that legal arrangements are essential in the co-working decision. Co-working occurs more often if (i) partners are married as opposed to cohabiting and (ii) if the co-working partner is protected by the legal status of the business. In addition, the stability of the partner relationship has an important influence on co-working.

Family Law and Personal Life

Parkinson, P. — 2008-09-30