Family Law Rules Research Articles

The Child Support Debt Bubble

This Article examines the widespread phenomenon of exorbitant child support debt owed by noncustodial fathers in no- and low-income and predominately Black families. Drawing from qualitative data—including a court-based ethnography and in-depth interviews with lawyers, litigants, and judges—this Article explores the inflated and arbitrary nature of the debt, detailing how states utilize family law rules, child support system practices, and court processes to construct burdensome child support arrears that many poor noncustodial fathers will never have the means to pay off. It concludes by arguing that inflated child support arrears should be questioned and challenged.

Legal Conclusions Of The Supreme Court On The Application Of The Rules Of Family Law As A Source Of Family Law In Ukraine

The scientific article is devoted to the study of the legal nature of the Supreme Court’s legal conclusions regarding the application of family law rules and their place in the system of family law sources of Ukraine. The views of Ukrainian and foreign legal scholars on this issue are analyzed, as well as the legislative regulation of this issue, a number of examples of the Supreme Court’s legal positions are highlighted. It is substantiated that the Supreme Court’s legal conclusions on the application of family law are a source of family law because they have the properties of a source of law: binding on all bodies, including courts applying the applicable law (except physical and legal persons not bound by a legal opinion, albeit in court, but which may invoke it to substantiate their position; the courts may also withdraw their opinion in accordance with the procedure laid down in Articles 403 and 404 of the Civil Procedure Code of Ukraine) regulatory, availability, formality and publicity, legality, ensuring the means of state coercion, law-making significance. It is also determined that the legal position of the Supreme Court exists in the form of a specific legal order, which has a corresponding official form of expression and consolidation, law­making significance. In the system of family law sources issued by the courts, legal opinions on the application of family law rules as issued by the highest authority in the system of courts of general jurisdiction are hierarchically above the acts of local and appellate courts, as well as other Supreme Court rulings after the adoption of the resolution containing the relevant legal opinion, except in cases of deviation from it in accordance with Art. 403 of the Civil Procedure Code of Ukraine. Legal positions can actually get legal expression not only in the decisions of the Supreme Court, but also the decisions of the Plenum of the Supreme Court.

КЛАСИФІКАЦІЯ ЗАБОРОННИХ НОРМ СІМЕЙНОГО ПРАВА

The article is devoted to the prohibitive rules of family law as objects of scientific classification. According to the method of consolidation, the Ukrainian legislator allows to distinguish two groups of prohibitive rules of family law: a) those that directly establish a prohibition (for example, forcing a woman and a man to marry is not allowed); b) those that indirectly establish a ban. The first group of prohibitive rules of family law should be divided into three subgroups: a) rules of family law that establish a direct unconditional prohibition (for example, intermediary, commercial activities for the adoption of children, their transfer into custody, care or upbringing of Ukrainian citizens are prohibited , foreigners); b) rules of family law establishing a direct conditional prohibition (for example, marriage cannot be declared invalid in case of pregnancy of the wife or birth of a child to an adoptive parent and adopted child, to a cousin, aunt, uncle and nephew, niece, or if the person who has not reached the age of marriage, has reached it or has been granted the right to marry); c) rules of family law that establish a direct prohibition, but have exceptions to the general rule (for example, a religious marriage rite is not a basis for a woman and a man to have the rights and responsibilities of a spouse, unless restoration of state registration of civil status acts). The second group prohibition rules of family law can reasonably be divided into those that: a) indirectly establish an unconditional prohibition (for example, a person deprived of parental rights loses the right to benefits and state assistance provided to families with children); b) indirectly establish a conditional prohibition (for example, the wife’s right to maintenance is terminated if the court decision excludes information about the husband as a father from the birth certificate of the child).

The Reform of Family Law: Russian Federation Family Code Structure Improvement and the Legal Regulation of Individual Matrimonial Relations

The development of modern family legislation has led to an increased interest in the study of separate institutions within the framework of family law, as well as to the study of the family law legislation in general taking into account the main tendencies in its development. We believe that improving the legal regulation of family relations should be based on a scientifically sound system of legislation. The article formulates some proposals to amend and supplement the existing matrimonial legislation. Unfortunately, it must be noted that many family law rules are not only ineffective, but they also fall foul with the concept of uniformity of legal regulation of relations arising from marriage and family affiliation.

A gyermeki jogok érvényesülése az új Polgári Törvénykönyv Családjogi Könyvében


 
 
 
 Napjainkban mind a jogalkotás, mind a jogalkalmazás terén a gyermeki jogok fokozottabb érvényesülése figyelhető meg. ezt jelzi egyrészről a gyermeki jogokat érintő, nemzetközi, európai uniós, valamint nemzeti jogszabályok és dokumentumok egyre növekvő száma. Emellett a jogalkalmazás területén is kifejezésre jut a gyermek érdekének és jogainak hangsúlyosabb érvényesülése, többek között a bírósági, hatósági döntések meghozatala során. A gyermeki jogok mikénti érvényesülése tehát olyan kérdés, amellyel minden embernek, így többek között a szülőknek, a jogalkotónak, a jogalkalmazónak, a pedagógusnak foglalkoznia kell.
 
 
 

Impact of globalisation on domestic family law: multi-tiered marriage in Nigeria as a case study

ABSTRACTThe concept of globalisation is commonly discussed as an issue in international law. However, little attention is paid to its influence in domestic family law. As a result of the growing trend of globalisation, legal and cultural norms of the host culture and the foreign culture are fused, thereby, leading to cultural homogenisation or cultural hybridisation, depending on the level of accommodation of the foreign norm by the host norm. One of the areas where hybridisation or homogenisation of cultural and legal norms manifests, especially in African countries including Nigeria, is in the marriage system, particularly in the conclusion of marriage contracts. In Nigeria, one of the impacts of cultural hybridisation is the evolvement of multi-tiered marriage, where a couple combines marriages under the statute law, customary law and religious law, especially Islamic law. This paper is an exploratory study of how globalisation impacts on how and why multi-tiered marriage is contracted in contemporary Nigeria. The paper also briefly discusses how the combination of marriages as a response to globalisation affects the operation of family law rules in Nigeria as well as the rights of the parties involved, especially the women.

Реализация прав супругов при осуществлении деятельности юридического лица

The article analyzes some of the peculiarities of the legal regulation of family relations in the aspect of the spouses’ participation in the activities of the legal entity. To manage these relationships on the one hand, the rules of family law relating to the regulation of property relations between spouses are used, and on the other — the rules of civil and corporate law defining the legal status and activities of commercial entities. The procedure for disposal of the common property of the spouses is considered, and the cases when it is necessary to obtain the consent of a spouse for transactions are analyzes. Attention is drawn to the possible existence of a conflict between the interests protected by family and civil law. The conclusions which were made by the author are supported by examples from the judicial practice.

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.

Private International Law Questions that Arise in the Relation between Migration Law (in the Broad Sense of the Word) and Family Law: Subjection of PIL to Policies of Migration Law?

In many analyses of international family law attention is exclusively given to “cultural” aspects; the analysis of rules of international family law is often embedded in the debate on the collision of cultures. But in analyses of international family law a so-called socio-economic component can be distinguished, certainly if international family law is studied in interaction with migration law: in regulating mobility, residence, nationality and social security issues at present sensitive areas – one is inevitably confronted with the intricacies of PIL – for example, the recognition of a foreign marriage or of a foreign judgment containing a change of age of a foreigner (both typical issues of PIL) could be decisive in evaluating a residence claim or a retirement claim. Awareness of this impact of international family law apparently functions as a catalyst on various levels: in parallel with current “two-track policies” in migration law, a double-track policy is also emerging in the process of dealing with international family law. On the one hand, the European Union has “brought in” international family law as an instrument to stimulate the freedom of movement of European citizens: the awareness that mobility of European citizens within the European Union can be influenced by the way people weigh the pros and cons of its impact on the regulation of their family life, spurs the elaboration of a liberal international family law. On the other hand, when international family law issues involve non-European foreigners, national authorities sometimes tend to use international family law rules in such a way as to prevent non-European migrants from claiming residence, social security and nationality. Thus, if one examines the “economic” component of international family law, both the so-called European context (mobility of European citizens and their family members within Europe, whereby principles as free movement of persons, non-discrimination of EU citizens and European citizenship are crucial) and the so-called non-European context (migration from non-European countries) should be examined – with attention for the shaky dividing line which seems to exist between the two, as well as the double-track policy which, when comparing dynamics, seems to develop (trends to liberalisation in a European context versus opposite trends in a non-European context). An analysis of the “instrumentalisation” of PIL requires a) research into the foundations of PIL b) as well as research into PIL’s “hinge-function.” There is a need to lay down the scientific foundations for future developments in this area through the identification of a series of mechanisms, the critical analysis of the legitimacy and side-effects of current practices and the exploration of future scenarios. The paper includes references to the themes of Transnational Corporate Social Responsibility and International Labour Law, as related to Private International Law.

Homogenous Rules for Heterogeneous Families: The Standardization of Family Law When There is No Standard Family

The article explores the ironies involved in the contemporary enforcement of family obligations. As forms of intimate partnership and parenthood become ever more varied, the law of family obligation - child support, property division and alimony - has become increasingly routine and formulaic. As scholars increasingly call for more attention to the varied ways in which different individuals and communities structure their care networks and their intimate lives, the law of family obligation has become less, not more attentive to context. This piece explains how the law’s rejection of context is an understandable reaction to the growing diversity of family forms. By unpacking contemporary family law rules, one see that the baselines and value judgments informing the law of family obligation are usually contested or arbitrary or both. They are accepted not because they represent consensus on what obligation should be but because they clearly demarcate who is obligated and for how much. Predictability emerges as more important than context for almost everyone. Social acceptance of so many different family forms makes judicial attention to context extraordinarily invasive and expensive. In an area of law where very few of the parties have the resources or desire to debate the normative underpinnings of family obligation and where both the parties and the state have strong interests in minimizing contested issues, there are compelling reasons to establish a very rule and status based law of obligation, even if that system is rooted in a normative vision of family that, for most people, has ceased to exist. The article thus argues that despite the profoundly limited way in which the current law identifies families, some reliance on restricted legal definitions of family will be necessary for any meaningful system of family obligation to operate. In doing so, the article challenges much contemporary family law scholarship and suggests that we may have to accept the law’s privileging of certain family forms if we are to expect an enforceable system of family obligation.

Human Rights of Women and Children under the Islamic Law of Personal Status and Its Application in Saudi Arabia

Saudi Arabia has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC). However, it has made general reservations to the effect that where there is a conflict between a Convention article and Islamic Law principles, Islamic Law shall have precedence. The family law rights of women and children in the Kingdom of Saudi Arabia have been criticised for not reaching the standards set by CEDAW and CRC. This article looks at the internationally set standards of these rights and compares them with the Family Law rules of Islamic Law as applied in Saudi Arabia. The applications in Saudi Arabia are then examined by looking at certain practices, case judgments and recent developments in the country in this field. Amongst these developments are the first case in which a Saudi judge annuls a child's marriage, the first death sentence declared on a father who abused his daughter causing her death, and the Saudi Divorce Initiative which aims to educate women and call for the protection of their rights during marriage and after its dissolution. The article stresses that despite the many improvements, there remains a need for codifying the Islamic Law of Personal Status in Saudi Arabia as this measure would be the basis that defines and protects the rights of women and children in Family Law.

Marrying Family Law to the Nation

This paper revisits the creation of the modern Greek state in the early nineteenth century and the role that family law played in the process of generating a sense of national identity. According to the mainstream legal historical narrative Greeks managed to survive as a nation during the Ottoman years thanks to the consistent application of family law rules by the Orthodox Church. This paper reinterprets the standard narrative as the result of the institutional compromises struck between the Orthodox Church, westernizing revolutionary Greeks and local leaders at the moment of creation of the Greek state, rather than a reflection of the legal realities on the ground. It argues that competition between the Orthodox Church, Islamic judges, and local secular leaders on precisely the issues that the Church considered under its exclusive jurisdiction (marriage, divorce, inheritance) had resulted in a highly fragmented legal picture right before the creation of the Greek state. Despite this fragmentation, the first regent for judicial affairs of the nascent state, Bavarian Georg Ludwig von Maurer, argued in his seminal book Greek People that Greek Orthodox canon law had been applied consistently throughout the territories of the Greek state and that the Greeks has survived as a nation partly thanks to the efforts of the Church which saved the Greeks from barbarism. The institutional compromise he then fashioned for Church/State relations rewarded the former, by making it an important institutional player on marriage and divorce in the new state. The last part of the paper discusses the importance of revisiting the history of the state's role in generating narratives of national identity for European politics, at a moment when the distribution of resources between European citizens and non European, often Muslim, non citizens living and working in Europe is increasingly justified or tacitly accepted through appeals to notions of concrete, coherent national identities. The dynamics of relying on a named or unnamed uncivilized other against whom identity formation takes place seems to be repeating itself today with a vengeance in the case of Turkey's accession to the European Union, and the thinly veiled vs. barbarism discursive themes emerging there. Not accidentally, they are heavily concentrated in the field of family law. Without suggesting that revisiting history will solve current political problems by deductive magic it can at least help push against the more essentialist, clash of civilization versions of identity that have remade their appearance in political discussions in Europe.

The Best Interests of Children in the South African Constitution

The welfare principle in cases involving children has been incorporated in the Bill of Rights of the 1996 South African Constitution, while also remaining a principle of common law. This article investigates the effects of including the best interests principle in the Constitution. It examines, first, whether the best interests principle is a constitutional right, a value, an interpretative tool or a rule of law and argues that, although courts describe it as a right, it is not treated as such. In fact, courts often use the best interests principle to avoid dealing with other constitutional rights of children and family members. The second part examines the role of the constitutional welfare principle in the development of common law rules of family law and finds a great disparity between different courts, some of which ignore the existence of the principle in the Constitution, others assuming that it has the same meaning in the Constitution as in common law and yet others using it to justify drastic changes to common law. The article suggests that the inclusion of the welfare principle in the Constitution should have concrete effects, chiefly to direct courts to conduct a proper examination of the other constitutional rights of children and other family members.

Expert Evidence in the Family Court: The New Regime

The author reviews the two major decisions of the Family Court of Australia in relation to expert evidence: Re W and W (Abuse Allegations; Expert Evidence) [2001] Fam CA 216 and Re W (Sex Abuse: Standard of Proof) [2004] Fam CA 768. He identifies a number of difficult expectations harboured by the Court and questions their legitimacy. He also analyses the single expert regime created as the default position under the Family Law Rules (Cth). He examines their application in practice and queries their likely impact upon the conduct of litigation.

The Aborted Restoration of ‘Indigenous’ Law in India

Traditional law—Hindu, Muslim and customary—has been almost entirely displaced from the modern Indian legal system. Today, the classical dharmaśāstra component of Hindu law is almost completely obliterated. It remains the original source of various rules of family law. But these rules are intermixed with rules from other sources and are administered in the common-law style, isolated from śāstric techniques of interpretation and procedure. In other fields of law, dharmaśāstra is not employed as a source of precedent, analogy or inspiration. As a procedural-technical system of laws, a corpus of doctrines, techniques and institutions, dharmasastra is no longer functioning. This is equally true of Muslim law. 3 The local customary component of traditional law is also a source of official rules at a few isolated points, but it too has been abandoned as a living source of law.