Law Of Domestic Relations Research Articles

Rights of Women Married Under the Act - A Case Study of Legal Divorce

The rights of women in divorce cases, particularly those married under the Act, have been a long-standing concern. Despite the existence of laws governing marriage and divorce, women often face challenges in asserting their rights during the divorce process. This study aims to assess the general concept of marriage and marriage under the Act, examine divorce and its effects, and evaluate the consequences of divorce on women's rights. The study seeks to identify the position of the law on divorce and women's rights in the process and at the end of the process. A mixed-methods research design was employed, combining qualitative and quantitative approaches. The study analyzed laws and statutes on marriage and divorce, reviewed cases adjudicated by courts of competent jurisdiction, and conducted interviews with divorcees, legal practitioners, and other stakeholders. The study found that women's rights in divorce cases are often compromised due to ignorance of the laws and lack of advocacy on their behalf. The Domestic Relations Law of Liberia, the Matrimonial Causes Act of Nigeria, and the Supreme Court of Liberia's opinions on divorce cases were found to be crucial in upholding women's rights in divorce cases. The study concludes that women's rights in divorce cases are often neglected, but the law provides avenues for redress. The study recommends increased awareness and education on women's rights relative to divorce, as well as the need for advocacy on behalf of women in divorce cases. The study's findings have implications for policymakers, legal practitioners, and women's rights advocates.

Whether you've tied the knot shouldn't matter: Anyone, regardless of marital status, should be permitted to adopt in New York if it is in the child's best interests

AbstractNew York Domestic Relations Law Section 110, which outlines who can adopt, precludes married petitioners from adopting without their spouse joining in the adoption petition, even when all parties involved support the adoption, and it is in the child's best interests. Some judges have prioritized the child's best interests and granted adoptions in such cases, while others have rigidly construed the statute and denied them. Amending the statute so that anyone can adopt, regardless of marital status, if it is in the child's best interests would ensure the child's best interests are the judicial system's primary consideration in approving adoptions.

Between the law and itself: An examination of the best interests of the child standard in the New York city family court

AbstractThis article describes a pilot research study done by the author which focused on the judicial implementation of the “best interests of the child” standard, also known as Article 5, Section 70 of the New York State Domestic Relations Law. This is the statutory principle that guides determinations of child custody in the USA. The ambiguous nature of this law grants judges significant discretion when determining the custodial arrangements for children, as it does not explicitly define what constitutes the best interests of a child. The lack of consensus surrounding this law results in marked inconsistencies in its application. In the absence of external guidance, the author presumed that judges rely heavily on their individual knowledge and conceptualization of childhood when making custody decisions, especially those regarding facts relayed by or about children. Through in‐depth interviews conducted with seven judges from the City of New York, this study sheds light on this complex and essential issue. By incorporating insights from sociological theories of law and childhood, this study provides further insight into how judges arrive at their rulings and can be used to assist in improving the lives of families who must interact with the legal system.

The right to 'unlove': The constitutional case for no-fault divorce in Uganda

This article examines the constitutionality of the requirement to establish certain grounds - adultery, cruelty, desertion, bigamy and others - as a condition for the grant of divorce in Uganda. It begins with an examination of the existing legal framework, including reforms already achieved through public interest litigation, and certain changes sought to be effected via judicial activism. The article then proceeds to an analysis of the human rights issues implicated by a fault-based framework, and a consideration as to whether the public interest-based limitations in this regard pass constitutional muster. Ultimately, it is proposed that the only means of aligning this area of domestic relations law with the Constitution is through the elimination of fault as a requirement for dissolving marital bonds. Such reform would also be consistent with critical public policy concerns, including the welfare of children and the sanctity of marriage itself.

If You Grant It, They Will Come: The Enduring Legal Legacy of Migratory Divorce

Fifty years ago, California became the first state to enact no-fault divorce, making it easier than ever before for individuals to dissolve unsuccessful marriages. Soon every state would follow suit, and over the years much has been written about this national shift in the law of divorce. What has thus far escaped scrutiny, however, is one of the prime casualties of that switch—the phenomenon of migratory divorce. That failure is somewhat ironic given that, although no-fault divorce has existed for just over fifty years, migratory divorce played a prominent role in American legal history for well over a hundred years. Migratory divorce is the process through which people who lived in states where a divorce was difficult to obtain would temporarily relocate to another state—one with more liberal divorce laws—in order to satisfy that state’s domicil so as to obtain a divorce there. Divorce in hand, that person typically returned home to continue life as an unmarried person. Many states, however, opposed recognizing such divorces, giving rise to multiple Supreme Court opinions dealing with when a state is constitutionally required to recognize such a decree. Contemporaneous with that debate, a large number of Americans fiercely opposed the practice of migratory divorce altogether, fearing the impact it was having on the sanctity of marriage. As a result, there were a number of proposals over the years for dealing with the “problem,” primarily involving constitutional amendments and uniform laws. In light of this history, it is the position of this Article that the era of migratory divorce offers an invaluable resource for those studying not only the development, but also the continuing evolution of the American family law. Accordingly, this Article chronicles that legal phenomenon, offering detailed analysis of the various social, legal, and political influences that ultimately shaped this unique time in American history. The purpose in doing so is to, first, ensure that this fascinating period in American history is not forgotten, but more importantly, to distill the legal lessons this era gave rise to—lessons that are highly instructive to contemporary scholars, courts, and policy makers alike as they continue to wrestle with the emerging problems facing the law of domestic relations.

Parental Mental Illness: The Importance of Requiring Parental Mental Health Evaluations in Child Custody Disputes

Parental mental illness is a challenging issue in child custody disputes. Mentally ill parents engaged in custody battles with former partners can be concerning for a court that must determine what is in the best interests of the child. Parental mental health is critical in custody determinations, yet New York does not require a mental health evaluation for mentally ill parents. This Note proposes that the New York legislature amend Domestic Relations Law Section 240 to require mental health evaluations for mentally ill parents when deciding what is in the best interests of the child.

The Past and Future State of De Facto Parents in New York

Over the past two decades, the definition of “family” has expanded drastically. To address these changing family dynamics, many states have adopted de facto parent laws, which recognize a nonbiological or adoptive parent's right to petition for custody or visitation in strict circumstances. These laws differ drastically from state to state, leaving no common understanding of the requirements to be a de facto parent. Until recently, New York law refused to recognize de facto parents within the Domestic Relations Law, leaving New York as one of the only states without this important distinction. However, this year the Court of Appeals crafted a narrow exception to the rule and allowed for a de facto parent to petition for custody or visitation in extremely limited circumstances. This article proposes that the Court of Appeals’ decision was too restrictive and that New York should adopt a legal framework that reflects this new type of parent, while still recognizing public policy concerns.

Family Law and Female Empowerment

Author(s): Carroll, Andrea B. | Abstract: Domestic relations law has struggled with feminism for decades, and it has never truly found a place in the family law arena. The crux of the problem, no doubt, is that family law has always had a difficult time defining feminism in context. From an economic perspective, is it feminist to provide economic assistance to women, who studies continue to show suffer far more than do their male counterparts in the wake of divorce? Or does feminism instead require a recognition of the ability of women to make equivalent financial contributions to a marriage as men, and thereby accept only pure equality of treatment? A series of incongruent doctrines makes it clear that family law truly does not know what feminism should mean.Consequently, the system of family law largely fails to achieve one of feminism’s most fundamental tenets: empowerment. This Article will sample a diverse cross-section of family law and analyze it from a feminist perspective. Part I will consider the state of a woman’s decision-making authority in the reproductive context. Parts II and III will explore the modern proliferation of domestic violence-related legislation, analyzing state law schemes that provide for both punitive damage recoveries and permanent spousal support. Part IV will address marital property regimes around the country. Across all contexts, the Article will demonstrate that, often despite the best intentions of legislators and jurists, family law wholly fails to empower women.

A Non-Contentious Account of Article III's Domestic Relations Exception

Scholars and jurists have long debated the origins and current scope of the so-called domestic relations exception to Article III. Rooted in the perception that certain family law matters lie beyond the power of the federal courts, the exception was first articulated in the nineteenth century decisional law of the Supreme Court and has perplexed observers ever since. Scholarly debate continues, despite the Court’s twentieth-century decision to place the exception firmly on statutory grounds in an effort to limit its potentially disruptive force.This Essay offers a novel, historically grounded account of the domestic relations exception, connecting its origins to the Article III distinction between “cases” and “controversies.” Much domestic relations law fails to present a “controversy” within the meaning of Article III; the consensual nature of many status-altering acts (marriage, consensual divorce, adoption) forecloses a federal dispute-resolution role. But when federal courts hear “cases” arising under federal law, they have full power to exercise both contentious and (what Roman and civil lawyers refer to as) non-contentious jurisdiction. Our non-contentious account explains a range of puzzles, including why Article III courts can issue decrees at the core of the domestic relations exception when the matter at hand implicates federal law.

Divorce and Types of Divorce at the End of Seventeenth-century Bursa

According to Islamic law which is the basis of the Ottoman law of domestic relations, the right to get divorced, in principle, belonged to the man. It was sufficient for the man to verbally announce that he was divorcing his wife by his own declaration of intention. It was not necessary to have the court record the situation. However, the number of divorce documents that we encountered in court records shows that the divorce cases in the Ottoman society were recorded. This situation was crucial to protect the rights of the two parties after divorce. The termination of a marriage, which was recorded in the religious records by the kadi (Muslim judge) in the Ottoman courts, was possible in three different ways: talâk, a man’s unilateral declaration of will (bâin or ric’î); muhâlaa, generally realized by the woman renouncing her rights such as mehir (bridewealth) and iddet nafakası (the alimony given to women in the waiting period to remarry after divorce); and tefrik, which was realized through the verdict of the judge. Talâk was completely the man’s decision, whereas the woman’s request could be considered in muhâlaa and tefrik. This study examines all of the divorce documents from 1670 to 1698 in the Bursa Shari’a Court Records.

Till Disinterest Do Us Part: Trial Marriage, Public Policy, and the Fear of Familial Decay in the United States, 1900–1930

I n 1924 n e w Y o r k S u p r e m e Court Justice Ernest Edgcomb denied eighteen-year-old lottie lazarczyk the right to have her marriage to husband Stanislaw lazarczyk annulled. lottie, the daughter of Polish immigrants, had married Stanislaw and given birth to a son before reaching the age of eighteen. alleging that Stanislaw had physically abused her, lottie sought escape from a marriage that she now viewed as a youthful mistake. Rejecting lottie’s request in the early paragraphs of his decision, Edgcomb used the remainder of his ruling to express concern over the deteriorating state of matrimony in the United States and over couples’ growing tendency to abandon unsatisfying marriages. In a key passage, he argued: “Public policy demands that the court should refuse to put its stamp of approval on trial marriages.” He therefore praised New york’s Domestic Relations law for seeking to bar young couples from “consummating a trial marriage, and then reputing their act without penalty, if perchance the experiment did not suit their passing whim or fancy.” In Edgcomb’s view, the court needed to play a stronger role in keeping marriages permanent. Two of Edgcomb’s phrases here demand further attention. The first is the term “trial marriage,” which Edgcomb used to imply that lottie and Stanislaw had exchanged vows without committing themselves to a lifelong partnership. In Edgcomb’s view, this couple represented a growing group of young and typically working-class people who married provisionally with the intent to part ways if matrimony proved unpleasant; this was a tendency he hoped to thwart. The second noteworthy phrase is “public policy,” or, more specifically, Edgcomb’s assertion that trial marriage violated public policy.

The Gendered Lives of Legal Aid: Lay Lawyers, Social Workers, and the Bar, 1863-1960

The Gendered Life of Legal Aid, 1863-1960 (manuscript in process) will be the first monograph on the history of civil legal aid in the United States. By closely examining the history of legal aid in New York, Chicago, and Boston, it presents a number of arguments with wide-ranging implications and it is animated by a host of conflicts. These include the relationship between legal aid and citizenship, the changing status of domestic relations law, the interactions between lawyers and social workers and their different understandings of the role and nature of law, what services legal aid should provide, and even how the history of legal aid should be told. More specifically the work questions what it historically meant to “practice law” or “to be a lawyer” and argues that women practiced law before they were admitted to law school in large numbers or could be admitted to state bars. Thus it puts in historical context and collapses the categorical dichotomy of lawyer versus non-lawyer and argues that our understanding of women practicing law in the nineteenth century needs to account for women lay lawyers. It also demonstrates that the practice of law from the nineteenth century through the first decades of the twentieth century was more democratic, heterogeneous, and less elite than we currently appreciate.

Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth Century Divorce Law

The article examines the nature of marriage and the expectations of husbands and wives in nineteenth century America by analyzing trial reports of famous nineteenth century divorce cases. The article argues that the textured history of divorce law in the United States shows how the law has affected gendered marital roles through its regulation of divorce. While fault is no longer the focus of divorce, conformity with gendered expectations remains a central aspect of the marital dissolution legal process. In the nineteenth century, conformity benefitted women; if they were the innocent spouse who had taken care of the children, the household, and their husbands, then they were protected in divorce proceedings. Nineteenth century ideology strongly supported this gendered role of both women and wives, and there was a significant overlap between gendered and marital roles. By the late twentieth century, those very same actions of gender conformity had very different consequences. In the nineteenth century, a woman's highest calling was to act as a wife; this is no longer true. Late twentieth century wives who try to live the same lives as their nineteenth century counterparts are penalized. While gender roles and expectations, together with domestic relations laws, are changing, the realities of most women's lives do not yet accord with these changes. Instead, the social norms for marital roles diverge from the legal norms embodied by divorce law. Examining nineteenth century divorce illustrates the confining nature of these congruent legal and social norms, but also illustrates how contemporary divorce law has become separated from these norms. Although divorce law should not return to fault or to reinforcing confining gender roles, it should respect the diverse roles of men and women within marriage. This examination of nineteenth century divorce shows the relationship between gender roles and domestic relations law, but also shows how social norms and legal norms can reinforce, or conflict, with each other.

Why Diamonds Really are a Girl's Best Friend: Another American Narrative

The old law of domestic relations and the system known as coverture have shaped marriage practices in the United States and have limited women's membership in the constitutional community. This system of law predates the Revolution, but it lingers in U.S. legal tradition even today. After describing coverture and the old law of domestic relations, this essay considers how the received narrative of women's place in U.S. history often obscures the story of women's and men's efforts to overthrow this oppressive regime, and also the story of the continuing efforts of men and some women to stabilize and protect it. The essay also questions the paradoxes built into American law: for example, how do we reconcile the strictures of coverture with the founders' care in defining rights-holders as “persons” rather than “men”? Citing a number of court cases from the early days of the republic to the present, the essay describes the 1960s and 1970s shift in legal interpretation of women's rights and obligations. However, recent developments – in abortion laws, for example – invite inquiry as to how full the change is that we have accomplished. The history of coverture and the way it affects legal, political, and cultural practice today is another American narrative that needs to be better understood.

A study of domestic relations law provisions mentioned in literature of 15-16 centuries

A study of domestic relations law provisions mentioned in literature of 15-16 centuries

Family, Kinship, and Sympathy in Nineteenth-Century American Literature (review)

Reviews Family, Kinship, and Sympathy in Nineteenth-Century American Literature CINDY WEINSTEIN (Cambridge: Cambridge University Press, 2004) fter nearly three decades devoted to the re-evaluationof sentimental fiction , scholarship no longer dismissesthe genre with the cavalier condeAscension of earlier critics. Yet considerablework remains to appreciate the art and ideas of sentimental novels, including exploration of how the genre seriously engaged canonical writers such as Melville. In Family, Kinship, and Sympathy in Nineteenth-Century American Literature, CindyWeinsteinsets out to demonstrate that sentimental novels are neither as uniformly constricted in ideology nor as debased in form as its critics still conclude. To that end, she examines sentimental texts in the framework of a wide variety of the other discourses through which nineteenth-century Americans debated the question of family, showing ways that this body of fiction functioned among other agents that debated the shift from a definition of kindred based in consanguinity to one based in sympathy and contract. Pierre comes in for treatment as a failed sentimental fiction,but not in the way that modernist Criticssuch as E 0.Matthiessen famously had it, nor yet in the way that Tara Penry has it in her fine study of Melville’s attraction to sentimental masculinity (“Sentimental and Romantic Masculinity in Moby-Dick and Piewe,” in Sentimental Men: Masculinity and the Politics of Affect in American Culture, ed. Mary Chapman and Glenn Hendler, University of North Carolina, 1999). The book takes for its method an enterprising blend of contextual analysis and close reading (a courtesy all too seldom extended to the sentimental) to explore different ways that the era produced and circulated sentiment. Between an introduction and short afterward (treating Mark Twain’s Pudd’nhead Wilson), six chapters compare the model of family represented in sentimental novels (and one journal) with, respectively, models in maternal advice literature, family relations law, the debate over slavery,the genre of slave narrative, and radical reform history. In addition to the essay on Pierre, two others focus on a pair of bestsellers and a slave narrative, now in the reformed canon of antebellum fiction - Maria Cummins’s The Lamplighter, Susan Warner’s Wide, Wide Would, and Harriet Jacobs’sIncidents in the Life of a Slave L E V I A T H A N A J O U R N A L O F M E L V I L L E S T U D I E S55 R E V I E W S Girl. Other segments extend the recovery of the antebellum sentimental, begun notably by Nina Baym, Jane Tomkins, and Susan K. Harris, through attention to lesser known texts of fiction and nonfiction - Caroline Lee Hentz’s novels, Ernest Linwood and The Planterk Northern “Bride”; Mary Jane Holmes’s‘Lena Rivers; Nehemiah Adams’sproslavery fiction, The Sable Cloud; Mary Hayden Green Pike’s mixed-genre fiction Ida May; Lydia Maria Childs Romance of the Republic; and nonfiction that includes Solomon Northrup’s slave narrative, Twelve Years a Slave; Frances Anne Kemble’s A Journal of a Residence on a Georgian Plantation in 1838-1839;and Stowe’s A Key to Uncle TomS Cabin. Weinstein’sopening chapter, “In locoparentis,” presents an elegant reversal of the presumption that sentimental novels parrot the message of advice literature and thereby reinforce the priority of the biological family and the mother. Although the novels offer rhetorical endorsement of the emergent family ideology, their absent mothers, inadequate fathers, and alternative forms of the middle-class family all go to undermine the ideal of consanguinity . The second chapter’sdiscussion of The Lamplighter shows that in the productive ambiguity ensuing from such cultural tensions both Cummin’sfiction and the developing field of domestic relations law assert the precedence, in some cases, of adoption or contracted family relationships over blood-family and the rights of the father. As law developed the concept of the “best interests of the child,” Cummin’s fiction develops the concept of what Weinstein calls “judicious sympathy,”an individual’s capacity to distinguish and react to the several demands others make on one’s feelings with a sense of the relative importance of those calls. What this means for Cummins’s sentimental heroine , in a world where family...

Notorious Woman: The Celebrated Case of Myra Clark Gaines

Notorious Woman: The Celebrated Case of Myra Clark Gaines. By Elizabeth Urban Alexander. (Baton Rouge: Louisiana State University Press, 2001. Pp. xiv, 301. Illustrations. $34.95.) This book is proof that the litigious nature of American society is not a modern phenomenon. According Notorious Woman's bibliography, the legal wranglings of Myra Clark Gaines account for sixteen United States Supreme Court cases, eight cases before the Louisiana Supreme Court, and eighty-eight cases at the district court level of both state and federal judicial systems. There were more: over 200 suits were filed in the Confederate courts of New Orleans during the brief year before Union occupation of the city. For fifty-seven years, from 1834 1891, Gaines and her advocates pressed her claims in state and federal courts at every level of appeal. Elizabeth Urban Alexander follows the complex and convoluted course of Gaines's saga, placing her court battles in the context of popular mores and nineteenth-century social values. Her goal is to weave together an account of the emergence of domestic relations law, the popularity of sentimental fiction, and the transformation of judicial attitudes toward women with the twists and turns of the litigation that made Gaines famous (xii). The legal cause that led this prolonged litigation was Myra Gaines's claim be the legitimate heir of wealthy New Orleans landowner Daniel Clark. Among the knotty legal questions that cried for answers were whether Gaines's mother, Zulime Carriere, had actually married Clark; whether Carriere's previous marriage had been legitimate; and whether a will that existed only through the testimony of dead witnesses could supercede a will that existed in fact. In Notorious Woman, the legal case becomes a point of departure for discussions of nineteenth-century attitudes, social customs, and judicial precedents. Among the digressions that this case leads are, for example, the power of wealthy business interests influence public decisions, the fundamental importance of property rights and titles, the fragility of business arrangements, the meaning of legitimacy and bastardy, the role of women in society, the uncertainties of marriage and divorce in the nineteenth century, and prevailing themes of popular fiction. In exploring the attempt prove Gaines's legitimacy, Alexander takes the reader down tangential paths of social history that become as entertaining as the case itself. From concise descriptions of the United States Supreme Court setting and brief sketches of each justice lengthier vignettes of Justices James Wayne and John Catron, Alexander recreates the milieu in which the cases played out and relates the justices' opinions their personal and political backgrounds and their judicial philosophies. We are treated the various meanings of bastardy through the centuries in English common law and according the Louisiana Civil Code. …

Codification of Private Law in the European Union: The Making of a Hybrid

The private law enacted by the European Community is characterised by peacemeal legislation and in outright contrast with the comprehensive and systematic perception of private law prevailing both on the European continent and in the common law jurisdictions. Tensions get stronger, and a general shift of opinion indicates that the harmonisation efforts of the Community should try to encompass larger areas of the law. The article advocates a Community codification of the law of contracts including the ancillary matters in the law of obligations, while the law of real property, succession and domestic relations should remain within the primary competence of the Member States. The new structure could be created in the form of a regulation on the basis of the existing Community competences. The Member States would be entitled to duplicate the Community Contracts Regulation within the framework of their national laws such as to maintain the uniform structure of the national civil codes. A legislative procedure consisting of three phases is suggested to conduct to the eventual taking of effect of the Community Contracts Regulation after 20 or 30 years.

Legally wed: same-sex marriage and the Constitution

In a new preface, Mark Strasser discusses recent developments in the legal battle over same-sex marriages in Hawaii. He anticipates the likely state and nationwide impact of the Hawaii Supreme Court's decision. Mark Strasser examines the issue of same-sex marriage in light of contemporary constitutional and domestic relations law, showing why the usual arguments against recognizing such unions are either weak or irrelevant. The Supreme Court has articulated numerous interests promoted by marriage, all of which apply to same-sex as well as opposite-sex couples. According to Strasser, the argument made most frequently to deny recognition to same-sex unions-that marriage exists to provide a setting for the production and raising of children-is in fact a reason to acknowledge such unions. The claim that marriage is for children biologically related to both parents is refuted in the case law, which treats biological and adopted children as legally indistinguishable. Strasser explains Baehr v. Lewin, the precedent setting case in Hawaii, and addresses the implications of state-by-state decisions to ban or recognize same-sex unions. He analyzes what it would mean to say that a policy violates the Equal Protection or Due Process Clauses of the Constitution, and compares biased polices that target gays and lesbians with those that victimize racial minorities. Strasser argues that the Defense of Marriage Act (DOMA) is both unconstitutional and a public policy disaster. It does not give states additional rights with respect to which marriages they need not recognize, Strasser explains, but only with respect which divorces they need not recognize. For example, DOMA seems to allow an individual to avoid a court-imposed duty to support an ex-spouse of the same sex simply by changing his or her domicile. Moreover, Strasser argues, DOMA is an open invitation for states to demand exceptions that will wreak havoc in domestic relations law. In a recent response to conservative arguments about marriage, Legally Wed explicates established and involving legal principles, and shows how invidiously these have been applied to the issues of gay rights in general and same-sex unions in particular.

Critical legal studies: a guide to the literature

Bibliographies of critical legal studies introduction to critical legal studies the special role of Roberto Unger history of the conference on critical legal studies symposia on critical legal studies legal history legal theory the legal profession contract law tort law constitutional law criminal law and criminology labour law property law domestic relations law environmental law corporations law commercial law legal education international law comparative legal studies feminism and law critical race theory Marxism and law alternative forms of dispute resolution legal aid the Welfare State social theory economic analysis of law law, narrative and literature legal scholarship critiques of critical legal studies.