Family Law Rules Research Articles

Parental Agreements on Children’s Parental Custody, Contact and Child Maintenance – High Requirements and Strict Standards versus the Child’s Interests

The aim of the paper is to analyse the Hungarian family law rules regarding parental agreements on children’s parental custody, contact and child maintenance, including their high legal and judicial requirements and strict standards. Parents are regularly supported to agree on issues concerning their children in cases when they no longer live together, as this corresponds to the principle of autonomy. However, they must enter into agreements that meet the requirements of the child’s best interests regardless of whether they lived in marriage or de facto cohabitation. The agreements must serve the interests of the partners and those of the child but not only at the time of concluding the agreement but also later. The question emerges of how either partner may request the agreement to be modified if the parents cannot agree new terms. Several aspects of the regulation, such as the judiciary, need to be considered and envisaged to evaluate the legal environment of parental agreements. This investigation is validated by the fact that it is not only the parents’ but also the state’s task to support the conclusion of agreements that protect the parties and their child’s interests and, if necessary, make the amendment of agreements possible.

Kepastian Hukum dalam Proses Perceraian Talak di Hadapan dan Melalui Izin Mahkamah Negara Bagian dan Wilayah Persekutuan Malaysia

Divorce that occurs outside and without permission from the court raises many legal problems, from the validity of the divorce to the non-fulfillment of the rights and obligations of husband and wife after divorce. Malaysia is a country consisting of states and an alliance area which in its Islamic family law rules regulates divorce before the court to ensure legal certainty. This paper discusses the procedures for the divorce of Malaysian citizens that must be carried out before the Malaysian Court and the rules for registering talak for divorces that have already occurred not in front of and without the permission of the Malaysian Court. The regulations for imposing divorce outside the Malaysian Court also include penalties (punishment) for violators. This paper uses a juridical-philosophical approach to explain the procedure for divorce before the court and the rules related to the registration of divorce that have been carried out outside and without the truth of the court to create legal certainty. This research is a qualitative type of literature research. The conclusion of this paper shows that the rules related to divorce before the Malaysian Court indicate legal certainty because in the process the judge examines the validity of the lafadz talak that the husband has imposed to ensure the validity of the legal status of divorce in Sharia and the state administratively, as well as the fulfillment of the rights and obligations of husband and wife after divorce.

An Analysis Of Marriage Guardianship Provisions In Somalia And Indonesia: A Comparative Study Of Somalia Family Law And Indonesian Islamic Law

Indonesia and Somalia are both categorized as nations with a predominant Muslim population following to the Shafi'i Madhab (school of thought). However, despite this similarity, there are notable distinctions in the Islamic family law rules and their enforcement between the two countries. An important distinction is in the divergence of marriage guardianship regulations between Indonesia and Somalia. In Indonesia, marriage guardians are mandatory and considered an essential component of the marriage process, whereas in Somalia, the opposite is genuine. In Somalia, a marriage guardian is not mandatory for marriage. This comparative phenomenon is quite distinctive and warrants further in-depth study. Despite both countries are followers of the Shafi'i school of thought in Islam, their respective applications of Islamic Family Law differ significantly. This study employs the library research method, specifically utilizing a Normative Juridical approach. Ultimately, the variations in marriage guardian legislation between these two nations can be attributed to socio-historical disparities and devotion to different schools of belief by their respective populations. In Indonesia, guardianship law follows the Syafii school of thought, which is in line with the beliefs of the majority of the population. Conversely, Somalia's law is based on the Hanafi school of thought, which emphasizes gender equality and justice in all legislation.

Раздел долговых обязательств, возникших в результате совместной предпринимательской деятельности супругов

The article outlines certain aspects of the application of the rules of family law on the division of debt obligations arising in connection with the implementation of joint entrepreneurial activity by spouses. On the basis of interpretation of general provisions of private law the position on the possibility of attributing debts arising from entrepreneurial activities to the joint property of spouses in their division is substantiated. A number of problems complicating the equal and proportional participation of spouses in joint business, the distribution of debt obligations (proof of bad faith conduct of one of the spouses in connection with the emergence and performance of disputed credit obligations, significant improvements in the property acquired with borrowed funds under the mortgage agreement as a basis for attributing the mortgage obligation to joint) are highlighted; the need for the Russian Supreme Court to develop additional criteria and conditions allowing to unambiguously decide.

Timeline of the Concept of Child Regulations Out of Wedlock (Study of Family Law Rules in Indonesia)

Rules regarding children out of wedlock in Indonesia are divided into three laws starting from the Marriage Law, the Presidential Instruction on KHI, and the Civil Code. Following the Constitutional Court Decision No.46/PUU-VII/2010 the rules regarding children out of wedlock in the Marriage Law have also undergone re-reading. Each legal regulation for children out of wedlock has different legal consequences, so it is interesting to study about the concept of children out in the timeline of civil law regulations in Indonesia. This paper aimsis to find out the concept of children out of wedlock in the timeline of legal regulations in Indonesia. This research uses normative legal research with a statutory approach. The results of this study stated that the regulation of children out of wedlock was accommodated after the recognition of the Civil Code in the Indonesian legal system. On January 2, 1974 the provision of children out of wedlock was regulated in Article 43 paragraph (1) of the Marriage Law, after the promulgation of the Presidential Instruction on KHI the provision of children out of wedlock was regulated in Article 100 of the Presidential Instruction on KHI where children out of wedlock only had civil rights with the mother and her mother’s family. And, Constitutional Court Decision No.46/PUU-VII/2010 makes children out of wedlock have civil rights with their mother and father as long as it can be proven by technology and science.
 Keywords: timeline, concept, child regulations out of wedlock, family law, Indonesia

Collision aspects of the implementation of the right to marriage in private international law

Regulation of relations of matrimony and family in international private law is one of the most difficult and intensively analyzed spheres in Ukrainian legal science. It is also important to pay attention to processes of unification and harmonization of this relations, that is happening now in Europe. It is essential to analyze and compare legislation of foreign countries in context of future implementation of some rules and institutes into national legislation. Any state is a warrant of the most of social rights, so it has an obligation to provide in legislative level mechanisms of protection of right of matrimony and family sphere. It is also more actual in context of increase of number of collisions of national and foreign rules that makes collision problems. Collision rules do not regulate relations of matrimony and family, they help to find connections with national law, that arise because of foreign element, so every state has its own national legislation, that regulates matrimony and family relations and in process of this regulation problems of collision happen. Compliance of requirements of legislation is always necessary for legal force of marriage, including marriage with foreign element. Collision rules of family law are quite a difficult institute of international private law, there are some rules of national law, that regulate this sphere, but there are also some collisions in matrimony relations, including realization of right for marriage. There are globalization and integration processes now, but there are some problems because of collisions, so states create conditions for regulation of relations of matrimony and family and understand necessity of approximation of national rules to international mechanisms, practice and processes of protection of rights and interests of participants of relations of matrimony and family.

Family Arbitration in Australia: A difficult birth

The use of arbitration in family law effectively commenced with the promulgation in April 2016 of Family Law Rules to facilitate arbitration. This article accesses all available data of the Federal Circuit Court (as it then was) regarding the use of arbitration for the three years from April 2016 to 2019. The data discussed paints a picture of the birth of family arbitration in Australia and charts trends in the use and facilitation of arbitration over this important, formative period.

Impact of Algeria's Reservation to CEDAW on the Freedom of Muslim Women

It is well established that the international community, and particularly Western society, follows the belief that women, especially Arab Muslims, do not enjoy a measure of freedom, for the reason that they are not considered to have de facto equality with men in rights before duties. This has resulted in suffering regarding all forms of blatant discrimination and this is not in line with the principles preached by the human rights advocated by international organizations and conventions. The latter clearly necessitated the enactment of a convention guaranteeing women's freedom through equality between the rights of women and men and the elimination of all discrimination between them. All this aforementioned discrimination and lack of freedom resulted in the Convention on Elimination. On this basis, the rationale of the present research paper and its objectives aim to shed light on the issue of women's empowerment regarding their rights at both, the level of international conventions as well as legal texts. In addition to this, the Algerian legislator had attempted to reconcile with the provisions of the Convention on the Elimination of all forms such as Discrimination against Women whether through the rules of family law or those rules that are derived from Islamic law.

When Do Laws Seem Fair? A Method for Measuring Community Views Using the Example of Family Law Rules

When Do Laws Seem Fair? A Method for Measuring Community Views Using the Example of Family Law Rules

SCIENTIFIC SOCIALISM IN THE INHERITANCE LAW IN SOMALIA

This paper discusses the influence of scientific socialism ideology on Islamic inheritance law in Somalia which is regulated in The Family Code 1975. This paper begins with a discussion of scientific socialism as a state ideology, then its influence on Islamic family law in Somalia and the application of scientific socialism ideology in inheritance law. The method used is descriptive with a theoretical approach that is explored through information media. The results of this study indicate that the deviation of family law regulations in Somalia from what is described in the Qur'an begins based on the concept of a state of scientific socialism that they apply. The purpose of implementing the ideology of scientific socialism in Somalia was to shift rigid customary rules and as a form of political cooperation with the Soviet Union. As a result, the application of the rules of family law has changed, especially in terms of inheritance. For example, there is no difference in the share of inheritance between husband and wife, sons and daughters, grandfather and grandmother, father and mother, even siblings, and half-siblings.

Status of a Child Born as a Result of IVF Procedure

Abstract Due to the constant development of medicine and biotechnology, including the in vitro procedure, more and more infertile couples can fulfil their desire to have a child. Traditional rules of family law concerning the determination of status familiae of such children have then turned out to be insufficient. The situation is even more complicated when IVF procedure assumes the use of donated genetic material or the involvement of a surrogate mother. Therefore in the field of family law the intention to “create” a child starts to play quite an important role. Family law is then undergoing far-reaching transformations, especially in those countries where same-sex couples are eligible to start IVF procedures (Great Britain, USA, Germany, Austria).

Regulating Family Law in Federations: The Impact of De/Centralization, Religion, and International Treaties on Abortion and Child Marriage Policies

AbstractThere has been little study of the effects of federalism on the regulation and reform of family law (FL). This article addresses that gap by identifying variables that affect two aspects of FL: child marriage and abortion. The underlying research question is what conditions make it easier to reform discriminatory FL in one federation compared to another. FL involves multiple rules governing marriage, divorce, custody, adoption, and often inheritance and family property use. Many gender scholars also include reproductive self-determination, specifically abortion. FL rules also have multiple elements: e.g., marriage regulations govern age, “race,” sex, domicile, etc., that often differ across constituent units. The main variable examined is the extent of centralization, because the dominant pattern of regulation in these cases is centralized legislation and decentralized implementation. The other two variables explored are religion and international norms-building and their effects on FL regulation and reform.

Parental Care Following Divorce in the Republic of Croatia

The author explains family law rules concerning the exercise of parental responsibility (parental care) after divorce in Croatia. The new family legislation emphasizes the importance of encouraging parents to reach agreements and reduce manipulations of their children after divorce. Parents may divorce in simplified, non-contentious proceedings, having previously reached an agreement on their divorce and on how they will exercise parental care. If there is no agreement on the exercise of parental care, they divorce in civil contentious proceedings. In that case, a parent that does not live with the child is not entitled to exercise joint parental responsibility. Novum is that a child is considered a party in all court proceedings where the court decides on his or her rights. The child is represented by a special guardian appointed by a social welfare office that is an employee of the Center for Special Guardianship. The representation system provokes new challenges due to its implementation weakness.
 The author carefully analyses legal situations where parents may represent their child jointly, one of them solely, or combined: jointly regarding the essential personal rights of the child, or one of them solely with regard to any other matters. Serious questions are raised because of significant limitations on the right to parental care of the parent who does not live with the child (as a part of the content of their human right to respect for family life). According to the author’s opinion, these restrictions are not justified, especially concerning the goal to protect the child’s best interests in post-divorce families.

Zawieranie małżeństw przez osoby z niepełnosprawnością intelektualną i psychiczną w prawie polskim a konwencja ONZ o prawach osób niepełnosprawnych

According to Polish legal system it is not possible for persons affected by „mental illness” or „mental retardation” to marry (article 12 Family and Guardianship Code). As an exception to this rule, the Court may authorize the conclusion of such marriage, if the person’s condition does not put „marriage” or „the future health of the off spring” in hazard. This adjustment was justified by the traditional understanding of the principle of the protection of marriage and family, concern about the lack of „capability” of the patient to meet one’s marriage commitments, the recognition of lack of parental competences in people with mental disabilities and mental illness, and the danger of „transferring” the illness to the children of parents. Acts of international law provide for a different design, accenting the right to marry and to found a family (article 12 European Convention on Human Rights). For people with disabilities, article 23 of the Convention on the Rights of Persons With Disabilities which guarantees the right to marry and to found a family of all persons with disabilities, including mental and intellectual, is of particular importance. The conventional solutions analysis leads to the conclusion that not only the current article 12 Family and Guardianship Code is contrary to the Convention but to establish similar restrictions based on the health status of the betrothed could be regarded as discriminatory and contrary to the Convention. It should be noted that the progressive interpretation of the Convention on the Rights of Persons with Disabilities can lead to conflicts between solutions of the act of international law and the national rules of family law which are based on the traditionally understood principles of the protection of the family and child welfare. It is therefore necessary to find solutions and develop compromise in the process of adaptation of Polish law to the requirements of conventional solutions.

GENDER EQUALITY IN TUNISIA: CURRENT TRENDS

Tunisia has come a long way towards achieving gender equality and remains a prominent example to other Arab countries in this experience. Meanwhile, Tunisia still takes only modest positions in international rankings on various indexes measuring gender gap. This work examines, with the help of a comparative-historical method, the formation of the women's movement in Tunisia and the development of legislation on gender equality. Then, through statistical data the author outlines the extent of women's economic, social, and political participation, and, finally, referring to the "concept of representation" by Hanna F. Pitkin (1967), the author looks at the pre-election programs of political parties that won the 2019 parliamentary elections, in order to assess the perception of the problem of women's emancipation in Tunisian society on the whole. As a result of the research, the author comes to the conclusion that, despite progressive legislative framework guaranteeing women's rights, the mass consciousness of Tunisians maintains a set of ideas and norms on gender inequality generated by Islamic tradition and fostering the discrepancy, first in the existing legislation and the objective reality, and secondly, between the rules of family law containing elements of Sharia, and the provisions of the Constitution, as well as the accepted international obligations.

Family is the most important pillar of society and the state

This article describes family law, the basic principles, functions, system, rules of family law. In particular, opinions and conclusions in this area are given. Even in today’s rapidly changing globalization, Uzbekistan believes that its future is in the development and respect of the family, which is one of the priorities of state policy to build a modern, exemplary and prosperous family, enriching our traditional values. In practice, all of this implies an obligation by the state to establish and maintain kindergartens, maternity homes, including hospitals, and to provide benefits and benefits to low-income families or single mothers.

Development of the doctrine of family law and it’s effect on the legislator and subjects law enforcement

The article highlights the development of the doctrine of family law and it’s effect on the legislator and subjects law enforcement.A digest of family legal research presented by Kyiv, Kharkiv, Western Ukrainian and Odessa family law scientifics schools was carriedout. It is stated that not only the digest of family legal research, but also careful consideration of each of them, gives grounds to statethat the set of scientifically sound provisions, family legal ideas and constructions developed by scientists of our state need to be implementedin acts of family legislation. It is substantiated that the doctrine of family law of Ukraine should take a significant place in theformation of family legal policy. It is stated that for the modernization of the doctrine of Ukrainian family law it is necessary to continuously:study family law through a prism of its history, traditions and modernity; deep knowledge of the current family legislationof our state and the practice of it’s application; study of progressive experience of countries near and far abroad in the field of legalregu lation of family relations. The effect of the doctrine of family law both at the level of lawmaking and at the level of law enforcementis characterized.At the level of lawmaking, the doctrine of family law affects, firstly, the development of draft laws on family law, as the normativedrafting activities should involve powerful scientific institutions represented by reputable experts in the field of family law. Acquisitionsof family law doctrine should also be applied when amending existing family legislation. Secondly, during the legal examinationof draft laws on family law. Third, the doctrine of family law has an effect on the legal consciousness of the legislator. At the level oflaw enforcement, the doctrine of family law reproduces the content of only the existing rules of family law, and does not create newrules. It is used when identifying gaps in family legal regulation, as well as when interpreting rules family law and individual acts.

BANKRUPTCY ESTATE OF THE DEBTOR’S SPOUSE: AN INTERSECTORAL ASPECT

The bankruptcy estate of the debtor spouse is all property belonging to him both on the basis ofindividual and joint ownership, including unfulfilled property obligations. The composition of the propertyof spouses is determined by the rules of family law, taking into account the legal regulation of certain typesof property, which requires special attention when forming the bankruptcy estate of the debtor spouse. Thebankruptcy estate may include the property of a citizen, making up his share in the total property, which maybe levied in accordance with civil law, family law. Family relations are built on the principle of community,which affects the implementation of bankruptcy law. To foreclose on the share of the debtor spouse, it isnecessary to separate the share of the debtor spouse from the common property, while the bankruptcy lawallows the sale of common property with the subsequent payment of funds to the debtor’s spouse.

INDIVIDUAL LEGAL ACTS OF THE SUPREME COURT OF THE RUSSIAN FEDERATION ON FAMILY DISPUTES CONCERNING PROPERTY

The article has analyzed the jurisprudence of the Supreme Court of the Russian Federation on family disputes that involve property issues, revealed features of implementation of functions of the highest court in this field. First, it is stated that the Supreme Court of the Russian Federation reviews decisions of lower courts mainly in cases where the application of family law rules is contradictory and unsettled. It is necessary to fill in a gap in family law, to resolve conflicts between certain legal norms, to choose between several possible interpretations of the law. Second, the judicial panels of the Supreme Court of the Russian Federation, making a determination on a particular case, clarify the meaning of legal norms, and sometimes under the guise of interpretation in fact correct ill-considered or outdated norms of family law. Third, the High Court reviews cases where there is a typical and widespread error in the application of a very clear and defined rule. Fourth, in individual legal acts it is possible to observe the concretization or change of the previously designated legal stances while maintaining the legislative rules in the same form. Using certain examples of cases considered by the Supreme Court of the Russian Federation on family disputes concerning property, the paper has demonstrated the mechanism of possible transformation of abstract, non-personified and doctrinally oriented provisions contained in the definitions of judicial boards of the Supreme Court to general legal regulators. The author has determined certain problems of legal regulation of property relations in the family that have not been settled by the Supreme Court of the Russian Federation.

O klauzuli generalnej dobra rodziny

This publication concerns the content and meaning of the welfare of family as a constitutional value and the welfare of family as a general clausein the Family and Custody Code. The principle of the welfare of family should be included among the basic rules of family law, including its followingaspects: an external aspect, being the criterion for actions taken by public authorities, and an internal aspect, which concerns the legal situation of family members, whose duties include promoting its welfare. In the course of the detailed analysis concerning the regulations given in the Family andCustody Code, it was ascertained, among other, that the directives that stem from the principle of the welfare of child and the welfare of family coincide;moreover, the scopes of both principles overlap.