Area Of Family Law Research Articles

The role of administrative courts in ensuring legal security for marriage and family: comments in the context of article 18 of the Constitution of the Republic of Poland

The article is devoted to the role of administrative courts in ensuring the legal security of an individual in the area of family law. The aim of the analysis is to demonstrate the guarantee of the preservation by the Polish constitutional legislator of the traditional form of marriage as a union of a woman and a man and the family created on this basis (Article 18 of the Constitution of the Republic of Poland). The article discusses the essence of legal security and the role of administrative courts in ensuring it, as well as the guarantee nature of the regulations of Article 18 of the Constitution of the Republic of Poland. Against this outlined background, the thesis on the inadmissibility of institutionalization of same-sex unions is argued. Problems resulting from the judicial practice of administrative courts related to the transcription of a child's birth certificate are also discussed. The scientific research was conducted by using traditional methods of jurisprudence, primarily the formal-dogmatic method. The linguistic, systemic and teleological interpretation of Article 18 of the Constitution of the Republic of Poland was applied. The directions of operational interpretation resulting from the case law of administrative courts were discussed. The views found in the literature on the subject (doctrinal interpretation) were taken into account, too. According to the author, the perspective of legal security strengthens the arguments stemming from the linguistic and historical interpretation of Article 18 of the Constitution and allows for a better justification of the inadmissibility of institutionalizing same-sex unions by means of a statute. Such a procedure seems particularly useful in the face of the growing tendencies in the law of other countries to eliminate the traditional form of marriage as a union of a woman and a man.

Holistic Legal Support for Litigants in Person: The North and Mid Wales Law Clinic Partnership

In 2020 the Access to Justice Foundation and Ministry of Justice launched the Legal Support for Litigants in Person (LSLIP) Grant, a two-year programme funding a range of earlier intervention services for litigants in person. Eleven projects were funded to deliver advice on a national, regional, and local scale, to litigants in person at different stages of their problem in various areas of civil and family law. Partnership working and earlier intervention were central to these activities, to achieve improved outcomes for clients. One such project became known as the North and Mid Wales Law Clinic (NMWLC), including seven Local Citizens Advice (CA) branches (six in North Wales plus Powys in Mid Wales) and Bangor University. The NMWLC delivers a service to support Litigants in Person (LiP) at every stage of their journey, providing generalist holistic advice designed to identify LiPs early on, preventing escalation of their legal problems, reducing financial hardship, and resolving issues with information to support self-help. The partnership provides generalist advice, and specialist advice and casework in the areas of Family Law, Employment Law, and Powers of Attorney and Deputyship (the latter being areas where local demand was identified by CA and partners). Through the project law students are supported to train as General Advisers and to assist specialist advisers and caseworkers. The project provided a unique way to develop clinical legal education (CLE), not least as it commenced fully online during the Covid-19 pandemic, focused on preventing escalation of legal problems, including through triage and partnership, and occurred in a small law department where existing provision (aside from in criminal law) was largely based on simulated activity. This article evaluates the first two years of the NMWLC from a CLE perspective, focusing on the experiences of student volunteers, exploring the challenges and opportunities of online working, and how the initiative fits with CLE models.

ALIMONY OBLIGATIONS OF PARENTS FOR THE MAINTENANCE OF MINOR CHILDREN AND RESPONSIBILITY FOR THEIR VIOLATION

The article analyzes various aspects of the institution of alimony obligations between parents and their children, and also establishes some sanctions against law-abiding parents who do not comply with family law. The purpose of the study is to study the features of the legal responsibility of parents who avoid paying alimony in favor of their children for no good reason. The scientific work indicates some of the most important legislative changes in the field of alimony legal relations, which had a positive impact on the legal regulation of this area of family law. The study also suggested some of its own changes to the current legislation.

Deti staroobryadcev kak ob"ekt konfessional'noj politiki regional'nyh vlastej vo vtoroj chetverti XIX v. (na materialah Vyatskoj gubernii)

The article considers the legal status of children of old believers in the second quarter of the XIX century. Based on the analysis of the regulatory framework and unpublished sources from the funds of Russian state historical archive and the Central archive of the Kirov region is characterized by major limitations in the area of family law in effect at the time of the reign of Nicholas I. Special attention is paid to the system of punishments for committing illegal actions by old believers, as well as the role of the family in the confrontation between old believers on the one hand and representatives of the authorities and the Russian Orthodox Church on the other.

Legal pluralism, Sharia law and the right to fair trial: a case for incompatibility within the Council of Europe

ABSTRACT Pluralism has been recognised by the European Court of Human Rights as a guiding principle for the interpretation and application of the European Convention on Human Rights, being inseparably linked to the ideals of democracy and human rights. Legal pluralism, however, is a distinct and unendorsed system which may raise concerns in relation to the respect of a number of rights enshrined in the Convention and the Constitutions of the member states of the Council of Europe. This paper studies the human rights implications that occur from the adoption of concurrent Sharia jurisdictions, as manifestations of legal pluralism, applied informally and formally in the UK and Greece respectively, in the area of family law. It particularly explores the incompatibility of those jurisdictions with the right to fair trial, as established in Article 6 of the ECHR and interpreted by the Court. It concludes by calling for an absolute ban to parallel Sharia jurisdictions across the members of the Council of Europe, which, as seen in the light of the Court’s case law, clearly contravene Convention rights.

Uwagi na temat wykonywania władzy rodzicielskiej

The subject connected with the legal representation of a child by a parent in Poland and with the limitation of parental responsibility has become a significant issue in the area of family law. This field has long remained beyond the scope of both research and reflection. The article raises the issue of rights and obligations towards a child arising from being a parent. It also shows how the institution of limitation and deprivation of parental responsibility works. The aim of this paper is not only to analyze such a difficult subject, that is the imitation of parental authority, but the effects it has on a child as well. A comparative method and descriptive technique have been used in this study.

Professionals’ Views About Child Interviews for Family Law Assessments

Interviews with children form a major part of assessments in contested family law matters. This study provides a qualitative analysis of professionals’ perceptions regarding how children are interviewed for family law purposes and the challenges associated with these interviews. In‐depth interviews were conducted with 15 professionals who had experience in the area of family law and/or interviewing children. Transcripts of these interviews were analyzed using an inductive coding process and key themes identified. The overriding message found was that interviewing children for family law matters is complex and warrants considerable skill and expertise. The findings highlight the importance of recognizing the purpose of each child interview and the appropriate process and strategies to conduct each interview.

Party autonomy, inconsistency and the specific characteristics of family law in the EU

Party autonomy is becoming more prevalent in substantive family law, and therefore private international law should find a method of incorporating party autonomy into family law. This should be done in a way that takes account of the specific characteristics of family life. Currently the EU Regulations take a disjointed and incoherent approach to party autonomy in family law, and do not consider specific issues relating to the family. There is no clear explanation of why this is and it appears to be related to the fragmented development of the EU family law instruments. This inconsistency is not only apparent across the instruments but also within the instruments, suggesting that the discrepancies are not context-specific. This article argues that it is possible to have a consistent approach to party autonomy across all areas of family law while catering for family specific issues. A consistent approach will allow families to resolve their disputes within one legal system, rather than the more complicated situation which confronts some families due to the fragmentation of jurisdiction required by the current legal rules.

Family Law Cases as Law Reform Litigation: Unrecognized Parents and the Story of Alison D. V. Virginia M

Although the gap between law and lived experience comes as no surprise to most people, the divergence is especially striking--and disturbing--in the area of family law. Legal training quickly reveals that love is not a foundational element of family law, yet it can still be jarring to find that love has little, if any, bearing on the contours of the legal family. Love, after all, does not account for who can and cannot marry. Nor does the past love of an unmarried couple trigger the protections of divorce should the couple separate. When children are involved, we might be especially inclined to think that love should carry some weight in determining whether a parent-child relationship will be recognized. Yet even here, again, love is often not relevant to the analysis. While an adult might feel like a parent, be treated like a parent, and be "Mom" or "Dad" to the child, in many states that adult will not actually be a parent within the law, absent adoption or biological parentage. For families in those states, a non-legal parent may have no legal recourse if a couple separates and the "legal" parent bars him or her from seeing the child. As a matter of law, the non-legal parent and child in this situation are no closer than strangers. Ironically, given the law's disinterest in love, the chief hope for the non-legal parent to regain contact with his or her child lies in showing the court the love that once defined the family and continues to define the parent-child relationship. Put another way, non-legal parents must persuade the court to see the family as it once was. if the court does not understand that the adults and children before it once functioned as a family, claims that the parent-child relationship should survive the parents' breakup have little chance of success. The case of Alison D. v. Virginia M. (1) provides an important opportunity to examine this complex relationship between family life and family law. Although it was decided in the early 1990s, the case and surrounding advocacy present questions that remain in play today, and the decision represents one significant point on the spectrum of family recognition decisions that continue to shape the lives of many families. The case arose after Alison's former partner, Virginia, barred Alison from seeing the child whom the two women had been raising together. Despite many efforts by Alison's lawyers to tell the family's story during nearly three and a half years of litigation, New York's highest court held in 1991 that Alison, as a "biological stranger" to her son, (2) lacked standing to petition the court for visitation. (3) Simply put, the New York Court of Appeals found that Alison, despite being called "mommy" and having "nurtured a close and loving relationship with the child," (4) was not her son's parent in the eyes of the law. To explore the law-life relationship, this Article presents the story of Alison D. on three levels. The first is the personal story of the parties to the case--or at least the little we can glean from court opinions and other published accounts; the remainder is under seal, as is traditional with family law cases in New York. (5) The second tells of lawyering for social change within the confines of family law and examines the strategies used to present Alison's family life within a legal framework that denied her the opportunity to tell her story. The third level takes the long view, looking both at the many legal changes in the nearly two decades since the case was decided and at the decision's continued force despite those changes. (6) At each of these levels, the question was not whether Alison was a good parent but rather whether the courts would permit Alison to show that she was a parent at all. The account here thus takes as true the facts about the relationship between Alison and her son that were alleged by Alison and largely uncontested by Virginia, (7) and then focuses on the challenges presented as Alison sought to translate her life experience into legal protection. …

Non-traditional Family Forms & the International Dimension of Family Life: A Report on the ERA Seminar, ‘Recent Case Law of the European Court of Human Rights in Family Law Matters’

This report discusses the interesting remarks and conclusions made by the speakers at the ERA seminar, ‘Recent Case Law of the European Court of Human Rights in Family Law Matters’, which took place in Strasbourg on 11-12 February 2016. The report starts with a brief discussion on the shifting notion of ‘family life’ in the case law of the ECtHR, then turns to best interests of the child in international child abduction cases, the Court’s recognition of LGBT rights and finally the spectrum of challenges regarding reproductive rights in the Court’s case law. The overarching general trend is that the Court is increasingly faced with issues concerning non-traditional forms of family and with issues caused by the internationalisation of families. How this is seen in the Court’s recent case law and how it effects the various areas of family law is discussed in this report.

An Enduring Relic: Family Law Reform and the Inflexibility of <I>Wilāya</I>

This Article discusses the rules governing guardianship over a child’s property and personal affairs in contemporary Muslim jurisdictions from a comparative perspective. Specifically, it questions the reasons for a less progressive reading and interpretation of wilāya (guardianship) in an era that has otherwise borne witness to family law codification and reform in the majority of Arab-Muslim countries. The Article first considers the legislatures’ reluctance to reform guardianship despite having adopted a progressive approach for other areas of family law in general and for custody, as an element of the parent—child relationship, in particular. It then classifies the current guardianship rules that can be found in (Arab) Muslim jurisdictions and concludes that, apart from the Maghreb, wilāya is still framed as a largely gendered legal concept and a male prerogative. Finally, these legislative choices are discussed with a view to potential reform impediments, namely a patriarchal reading of pre-modern Islamic legal doctrine, the legislatures— preference for vesting financial control in men, and, lastly, the outsourcing of guardianship from the larger body of codified family law as can be witnessed in some jurisdictions. The Article concludes that, in addition to relying on pre-modern legal practice, changes in current guardianship rules can be equally brought about through an inter-Arab comparative approach to family law reform as well as an adjustment of wilāya to the themes and leitmotifs already permeating most codified family law in contemporary Muslim jurisdictions.

FACTORS CAUSING WIFE WORKS AND IMPACTS

Life in Indonesian society is still very often encountered some problems within a family, one of which is a matter of working wives. Islamic religion does not forbid his wife to work even there are no rules on the prohibition of the wife works. In Sub Braja selebah wife works issue is still very much encountered almost every wife to work. participation and wife work outside the home is still an issue discussed from the first until now.This research is expected to provide insight for the development of science, especially in the areas of family law and can serve as a reference for similar studies in the future. This research is a field that is descriptive analysis. Data collection was conducted by interview, and documentation. And then analyzed using an inductive method of thinking.The results showed that factors cause the wife works are internal factors, namely: 1) factors and wife already worked before marriage 2) factors that arise when the wife wants to change the economic situation the family is still not very well be better 3) factors that arise when there collision problems in the family needs. External factors, namely: 1) factors that arise when their encouragement as well as feedback from neighbors and relatives 2) Demands age 3) gender equality would be related to the emancipation of women 4) educational factors. Of course with the state of the working wife have a good impact on the positive or negative effects. The positive impact of the wife works, namely: 1) the economy for the better 2) Quality of life improved 3) gender equality 4) establishment of family sakinah mawaddah wa Rahmah. Then the negative impact of the wife works, namely: 1) the divorce rate is increasing 2) juvenile delinquency 3) the loss of identity of the wife as mother 4) the number of pregnant mating phenomenon. Based on the results of research conducted in the District of Braja Selebah East Lampung district, which is based on data and interviews with respondents. That is a major factor in the wife works in the District Braja Selebah East Lampung district is a matter of economics.

Wakaf dan Politik di Tunisia

For some experts, Tunisia is tended to be the most progressive, liberal and radical among other Islamic countries in the world, particularly in addressing the issues of women's rights and the prohibition of polygamy. However, development in the areas of family law is not followed by progress in other fields, mainly in the development of waqf. For this case, Tunisia is the most underdeveloped compared to other Muslim countries, such as Saudi Arabia, Egypt, Pakistan, Bangladesh, Sri Lanka, Jordan, Brunei Darussalam, Malaysia, and Indonesia; even though, around the 19th century, the contribution of waqf land of Tunisia in 1883 had reached 1/3 of the entire ownership of the land. Currently, Tunisia Tunisia do not yet have the institutions and the laws governing the waqf.DOI: 10.15408/ajis.v15i2.2857

PEMIKIRAN HUKUM ISLAM ABU HANIFAH: Sebuah Kajian Sosio-Hostoris Seputar Hukum Keluarga

Abu Hanifah (80H-150H) is one of the figures who made valuable contributions to the development of Islamic law. His legal thought more advanced aspects of rationality that is affected by geographic and demographic environment of Iraq. Many progressive thinking and different from other scholars, both on methodological aspects and results of ijtihad. Islamic legal methodology of Abu Hanifah is istihsan, that caused controversy among scholars of fiqh. Many of Abu Hanifah’s thought in the area of family law that had different from others are: the permissibility of marriage without a guardian, the need kafaah in marriage, as well as nasab a child out of wedlock. Marriage without a guardian is valid, but not perfect. Abu Hanifah kafa'ah concept emerged as a response to social differences (social distinction) which then shifts into legal issues (legal distinction). Position child out of wedlock was fixed to his father as a legitimate child. In taking the law, Abu Hanifah tend to use Burhani epistemology. The dominance of the realm usage paradigm Burhani certainly can not be separated by geographical location or state of Abu Hanifah’s life. Kufa and Baghdad is a metropolitan city that Imam Abu Hanifa have to deal with high rationality.

‘Like Gold Dust These Days’: Domestic Violence Fact-Finding Hearings in Child Contact Cases

Fact-finding hearings may be held to determine disputed allegations of domestic violence in child contact cases in England and Wales, and can play a vital role for mothers seeking protection and autonomy from violent fathers. Drawing on the author’s empirical study, this article examines the implications for the holding of fact-finding hearings of judges’ and professionals’ understandings of domestic violence and the extent to which they perceive it to be relevant to contact. While more judges and professionals are developing their understanding of domestic violence, the ambit of when and how it is considered relevant to contact has grown increasingly narrow, which suggests that many disputed allegations of domestic violence are disregarded and women and children continue to be put at risk from violent fathers. This bifurcated approach is likely to have significant implications for recent developments in this area of family law which are considered in this article.

Regulation of family law at the international and European level, with a special focus on the right to health of the child

Family law represents a specific branch of law, given the sensitivity of the relationships which it mainly regulates. It is the reflection of the various influences acting on a given area and often, the differences between countries in the regulation of certain issues can be extremely large. Consequently, attempts to harmonize the rules of family law, especially to unify them, so far have largely been unsuccessful. However, progress can be observed on both, the international and European level. This paper will try to show the most important international and European bodies and within them, instruments issued with the aim of regulating matters falling within the area of family law. In addition, the paper will be made special reference to the part of family law relating to children's rights, namely on the right to health of the child as a basic right, without which other children's rights are meaningless.

Mission Critical: A Call to Action for Juvenile and Family Courts, the U.S. Armed Forces, and Veterans Affairs

This article describes an innovative court program to focus services and case processing on military families, both active and retired (veterans), who are involved in family law proceedings in the civil courts. The article examines the process taken from concept to implementation in one court, with focus on the interplay between the court and armed force support groups, and legal/court stakeholders focused on improved outcomes for military families in distress. Finally, the author briefly examines the possible reasons for the historical disconnect between the courts and the military (veterans and active forces), draws corollaries to existing federal support for other family matters, and posits a method to include the military family under the umbrella of federal attention. Key Points for the Family Court Community The ease with which the pilot went from concept to rollout bodes well for replication, even when no funding source is available This civil family docket is the perfect adjunct for communities with Veterans Treatment Courts There is an imperative need for the branches of service, VA, and the courts to communicate about this topic Only federal initiative, similar to what has already occurred in other areas of family law, can resolve the impasse

Testate Succession” in the French and Lithuanian Legal Systems (Terminological Peculiarities)

The area of family law has suffered crucial changes throughout the centuries. Nowadays, during the times of globalization, these changes are directed towards the internationalization of legal systems of the world. Juridical differences are becoming irrelevant - socio-cultural, socio-economic and political developments of one country influence other countries. The comparative study of these developments is becoming a foundation for future harmonization of the world law. The given paper presents a precise study of the French (capitalistic) and Lithuanian (“almost” capitalistic) “testate successions”. It singles out major terminological units and underlines the most prominent peculiarities of the capitalistic and “almost” capitalistic mechanisms of the modes of inheritance. DOI: 10.5901/ajis.2014.v3n3p218

Family law matters in a European dimension - A comparative perspective between Brussels II bis Regulation and the new Albanian Act on private international law.

This paper aims to analyze to the regulation of the family matters in the EU “acquiss communautaire” regarding marriage, dissolution of marriage, marital property regimes and parental responsibility. The European Union law of these recent years has shown some increasing trend of intervening in the regulation of family relationships. Community acts in the area of family law are the acts for the recognition of the foreign judicial decisions and for the jurisdiction criteria as well as finally the uniform conflict rules, but no material acts. Thus, this is about rules which exclusively regulate only the international cross-border family matters, leaving unregulated the core of the family matters. The regulation of these cases aims to create, maintain and develop a common area of freedom, security and justice, with a view to the well functioning of the common European market. In accordance with the power provided by the EU Treaty, the European Commission has adopted the Regulations Brussels II bis and Rome III. Also the paper will focus in the study of the institute of marriage and parental responsibilities in the cases of marriages with foreign elements, seen in the framework of the new Albanian Act “On private international law” compared to the previous law and compared with the EU regulations Brussels II bis and Roma III.

Uniform Adoption Laws: A Public Health Perspective

Adoption has long been seen as the "perfect solution" for numerous parties. Traditionally viewed, adoption is no more than a social service procedure; however, viewed more broadly, adoption provides a solution to the public health concerns of unplanned pregnancies and foster care populations. In the United States, the power to establish and administer the legal and procedural systems applicable to the adoption process is granted to the individual states, due to their responsibility to regulate the welfare of children. Therefore, like other areas of family law, adoption is a state-created statute. Conflicts between states are not uncommon because of the discrepancies in adoption laws amongst the states. These discrepancies between different state adoption laws lead to confusion, forum shopping, and most importantly, negative attitudes and reactions toward adoption. Ultimately, these discrepancies hurt the only innocent party involved: children in need of a family. As a solution to multiple public health concerns, adoption laws would benefit from a uniform adoption act. This Note will examine the extensive issues resulting from the discrepancies between state adoption laws and address how a uniform adoption act could significantly promote adoption as a viable solution to two public health concerns: the increasing number of unplanned pregnancies and the significant number of children in foster care awaiting permanent placements. Section I explores public health concerns that would benefit from a uniform adoption act. Section II discusses adoption laws as state responsibilities and addresses the major consequences of having different state adoption laws. Section III details past efforts to overcome the differences in state adoption laws, including the Uniform Adoption Act of 1994. Finally, Section IV analyzes the need for some form of uniform adoption laws if adoption is to remain a viable solution to public health concerns, namely the increasing number of unplanned pregnancies and significant number of children in the foster care system awaiting adoption.