A window on the paradigm shifts in contemporary family law (original) (raw)
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The article analyses the current trends in the transformation of the traditional family institutions via the prism of the existing discriminatory practices in modern society. The problem of correlation between the role of mother and father in the upbringing of children in the context of international human rights law and legislation of individual countries is addressed in the article. Contemporary global trends in the legal regulation of the institution of marriage, as well as the consequences of the disintegration of the marriage to the child are examined. An attempt is made to explore the extent of the impact of international and foreign law in shaping the development of the institution of marriage in Russia. The existing law enforcement practice from the point of view of its impact on the spiritual ties with the child’s father is critically assessed. Conclusions are drawn about the need for a genuine embodiment in practice of the constitutional principle of equality between man and woman, cancellation of the discriminatory practices of the limitation of the rights in upbringing of children by a single person and the existing different types of families. Recommendations are given on the need for the development of legislation governing the legal status of civil marriages and on amending the approaches to determining the list of persons who have the right to adopt children.
Editorial: The Evolution of Family Law From Status to Contract and Relation
2001
During the last 35 years, family law has undergone profound changes throughout western industrialized countries. With minor time lags' the development has been surprisingly even. It is thus possible to speak in family law today of 'uniform law through evolution'. 2 The legal development is, however, but a reflection and at the same time part of the developments occurring in society as a whole, as they already become apparent in official statistics. The most salient feature is the rise in the divorce rate. Since the 1970s of the last century, it has more than doubled nearly everywhere. 3 In many countries, the probability of divorce has now reached 40 to 50 per cent. The development in Scandinavia, however, where a certain stagnation at this high level has been observed since the 1980s, shows that the saturation point might now have been reached. The high number of divorces brings about manifold further developments. These are on the one hand the rapid increase of childre...
Gendering Family Law in Europe
Actualidad Jurídica Iberoamericana, 2023
The paper deals with the evolution of the concept of family from a traditionally grounded model, male-dominated (by husband or father), to a gender-equality-based model. The European framework of values adopts a pluralistic vision of the family as a community based on affection, which is afforded legal protection as a place where the individuals can exercise their fundamental rights in an equal position.
The changing concept of ‘family’ and challenges for family law in Switzerland
European Family Law Volume II
The changing concept of 'family' and challenges for family law in the Benelux countries 5 Frederik Swennen 2 The changing concept of 'family' and challenges for family law in England and Wales Gillian Douglas 3 The changing concept of 'family' and challenges for family law inFrance Laurence Francoz Terminal 4 The changing concept of 'family' and challenges for family law inGermany Dieter Martiny 5 The changing concept of 'family' and challenges for family law inGreece Eleni Zervogianni 6 The changing concept of 'family' and challenges for family law inHungary Orsolya Szeibert 7 The changing concept of 'family' and challenges for family law inlreland BrianSloan V VI European family law volume II 8 The changing concept of 'family' and challenges for family law in Italy Maria Giovanna Cubeddu Wiedemann 9 The changing concept of 'family' and challenges for family law in the Nordic countries Tone Sverdrup 10 The changing concept of 'family' and challenges for family law inRussia Olga Khazova 11 The changing concept of 'family' and challenges for family law in Scotland KennethMcK. Norrie 12 The changing concept of 'family' and challenges for family law in the Slovak Republic Gabriela Kubfckova 13 The changing concept of 'family' and challenges for family law in Slovenia BarbaraNovak 14 The changing concept of 'family' and challenges for family law
The Evolution of Family Law: Changing the Rules or Changing the Game?
On June 26th, 2015, the U.S. Supreme Court ruled in favor of the recognition of same-sex marriage in Obergefell v. Hodges. Three years earlier, the Spanish Constitutional Court did the same in its ruling 198/2012 on November 6th, 2012. In both countries these rulings have been a very important step (but maybe not the final one) in the evolution of legal marriage towards its deconstruction. This paper deals with the main trends of the evolution of legal marriage and of Family Law in the recent decades. The author of this paper proposes to shift the focus of Family Law towards children in order to recover the core meaning of marriage.
The Traditionalism of the Modern Family – Social and Legal Direction and Contradiction
The current conjugal mentality in Romania reflects a kind of atypical modernity – a modernity of declarations regarding the status, marital roles and functions of the family, but, at the same time, there is a kind of traditionalism regarding concrete facts. According to the latest social studies, about 40% of Romanians declare themselves to be traditional, in some way or another. Although the majority of couples talk in egalitarian terms about sharing conjugal roles and gender equality (in phrases that are most often stereotypical), the actual situations reveal a distribution of roles based on gender as well as social inequality. Another dimension that shows the same contradiction in terms of values is represented by the problem of conjugal independence expressed through the need for an alternative emotional association to the institution of marriage (i.e. consensual union) and through the need for more relaxed divorce legislation to make separation easier. Thus, divorce by agreement was introduced in Romania in 1993, Art. 305 of the Penal Code (on penal sanctions for proven infidelity) was revoked in 2006, and divorce before a notary public or a civil status registrar was legalized and introduced in 2010. As a consequence, we would have expected an increase in the divorce rate in Romania. However, the rate of marital dissolution remained low (between 1.5‰ – 1.7‰), Romania being among the countries with the lowest divorce rates in Europe. On the same note, statistical data shows that 5.7% of people are in favour of cohabitation; the social legitimacy of this phenomenon seems even stronger, although proposed drafts for a national law legalising cohabitation stirred strong reactions which paradoxically contest precisely this previously affirmed legitimacy. The study aims to explain these cultural and legal problems in terms of common direction and contradiction. From the methodological point of view, the study relies on analysis of official documents from divorce files, secondary analysis of national social studies, comparative analysis of the proposed national draft legislation for the legalization of cohabitation and equivalent international legislation.
Developments in Family Law: The 2012-2013 Term
In Quebec (Attorney General) v. A., a sharply divided Supreme Court of Canada upheld the constitutionality of Quebec’s distinctive policy in family law, one combining obligatory protections for married spouses and laissez-faire for unmarried cohabitants. It rejected the contention that such a policy amounted to unjustifiable discrimination on the basis of marital status, contrary to s. 15 of the Canadian Charter of Rights and Freedoms. This paper delineates the judgment’s appropriate scope, which is not what the Court’s text indicates, and its effect on family law across Canada. It argues that it is difficult to reconcile the Court’s focus on autonomy and choice with Quebec’s positive law of the family. In addition, it points to problems with how the judges characterized the challenged regimes of Quebec matrimonial law. In particular, by focusing on autonomy and choice or on protection, the judges neglected matrimonial law’s compensatory aims.
Introduction: change and continuity in recent family policies
Journal of European Social Policy, 2010
Families have become a focal point in debates of ‘new risks’ and much needed ‘new policies’ for Western welfare states. Family policy responses to the new challenges and even the goals associated with welfare policies designed to aid families have, however, varied across countries, and there is much uncertainty about the sources of this variation and the future development of the policy field. This special issue takes stock of recent developments in the field of family policy. It brings together a range of countries that, taken together, map the full spectrum of advanced industrial countries’ family policy dilemmas, responses, and intervening institutional and ideational variables. Its goal is to take a first step towards explaining the varied degrees and forms of family policy activism in mature welfare states of Western liberal democracies. The introduction to the special issue first sketches the changing nature and social roles of the family, as they evolved along with public law...
Editor’s Message This issue, the first of two of 2015, continues to look at modernisation in the Family Court with an article from a criminal specialist relating to the President’s initiative for improvements in the taking of evidence from child and other vulnerable witnesses, in connection with which he has pointed to the work long ago done in the criminal context to adapt these processes to improve the otherwise intimidating court experience for these witnesses. Neelam Sakaria, who formerly held a senior policy post at the CPS, takes us through the background in the development of these processes in the Crown Court: and now the Family Court is, like the Crown Court, a national court which sits regionally, the sort of standardisation that has been developed in the criminal context is an obvious signpost for Family Justice processes Other initiatives in the Family Court are now tending towards avoiding as many hearings as possible and in particular towards attempting to resolve some of the most bitter disputes – such as those about contact where there has been domestic violence – out of court through mediation. This process must now in any event be considered before proceedings can be begun, owing to both the FPR 2010 rule 3 and the accompanying Practice Direction and the statutory force of the Children and Families Act 2014 s 10,. Rachel Knight, although primarily a specialist immigration lawyer and founder of the Knight & Jones Immigration and Asylum practice accredited by the Office of the Immigration Commissioner, has always had an interest in using the law to protect vulnerable people generally, and has now turned her attention to the long running saga of the role of the child’s welfare in the interface between historic violence and the desirability of promoting contact with non-resident parents who have such ‘form’. Since it is a principle that where there is or has been such violence mediation is usually inappropriate these cases inevitably have to go to court if sensible agreement between parents cannot be agreed: in this context Rachel asks if there ought to be some more explicit reform to the welfare test to take account of this situation, especially as there has already been reform of s1 of the Children Act 1989 to promote the concept of presumption that the involvement of each parent ‘in some form’ will further the child’s welfare ‘unless the contrary is shown’. Suggested reform of s 31(2) in relation to the ‘likelihood of harm’ has already been unsuccessful despite academic comment recording concern in the case of possible perpetrators: however it is unfortunately probably safe to say that we have not yet heard the last word on the subject of this interface between violence and contact. Sarah Camplin next reports on a lecture given, in association with the Centre, at the University of Westminster, of the Canadian Family judge, Justice Williams from Nova Scotia, who during his visit to England has also spoken at the FLBA’s annual Cumberland Lodge weekend about the respectively informal style of his court in that province of Canada and foreshadowed the more interventionist style of administering Family Justice that may well be expected in England and Wales in the process of the ongoing modernisation of systems in the Family Court which is promised more fundamental reform. Finally, looking forward to the Centre’s 3rd triennial International Conference in July 2016, where the author is speaking on another international aspect of Romanian law, we have an account of marriage under the Civil Code in the new EU member state of Romania. Interestingly, this deals in detail with the legal consequences of both marriages between Romanian nationals and between Romanians and foreigners. This shows some striking differences from English Law, in the first place for the very qualification for marriage. Not only are bigamists unsurprisingly denied this formal status, but it seems the parties, whether Romanian or foreign, must have exchanged health disclosure and not be suffering from any genetic defect that would mean the – International Family Law, Policy and Practice • Vol. 3.1 • Summer 2015 • page 4 – risk of passing it on in the future population if they had children. There is also apparently an interesting divergence between the result in law if there turns out to be any impediment to matrimony depending on whether the parties are both Romanian nationals or whether one is a foreigner to Romania. This is certainly a complex piece of legislation which makes any argument against the wisdom of introduction of No Fault Divorce in English Law seem relatively simple, despite the fact that some apparently do not think it any more advisable than in 1996, although with the introduction of the new administrative process for undefended divorce, No Fault Divorce, which practically every other jurisdiction already has, would seem to be a practical way forward. The Centre is currently discussing holding a joint conference with the Romanian Parliament in late 2017. The theme of modernisation in the Family Court continues in the next issue. Frances Burton Frances Burton, Editor This issue may be cited as (2015) 3 IFLPP 1, ISSN 2055-4802 online at www.famlawandpractice.com.
Family changes and women’s rights in Europe. Towards gender equality?
Papers of Social Pedagogy
In this article I will try to articulate that gender equality means also changing the patriarchal system. In my opinion, family changes in the last decades contributed to defense and development of women’s rights. Family changes and family varies from one society to the other. Anywhere and at any time in the history of human societies, kinship systems and family systems have evolved and continue to do so. But European societies today are torn between two contradictory trends, on the one hand we can observe the extension of social relationship in the case of blended families, and on the other hand the continuing reference to a genealogical, therefore biological relationship, because adoption in Europe and the United States still refers to the model of a fictitious family lineage. It displaces real family lineage of birth parents which legally disappear.