FAMILIES IN TRANSITION

This article describes one of the first mandatory divorce orientations in the country. Beginning in 1976, this program has served as the model for other highly successful programs throughout North America. The program helps couples deal with the psychological and social divorces as well as the legal divorce. It also provides information for parents about how to tell their children and to monitor the effect of divorce on their children's lives.     

Obligations Between Adult Partners: Moving From Form to Function?

It was observed at the end of the twentieth-century that inrelation to family law policy in the UK, the ‘parent-childrelationship was the only clearly ascertainable family relationshipto which legal consequences can be attached’ and it waspredicted that relational obligations between adult partnerswould become individually negotiable. Some considered that whileparenthood would remain subject to normative obligations, thelegal position of married and unmarried couples would be equatedvia the gradual de-regulation of marriage through increasingthe capacity of adults to define the terms of their own relationships.However, recent policy and practice-based developments reveala different picture. The purpose of this article is to considerthe interaction between these mutually informing discoursesand to suggest that rather than developing a more function-basedapproach to the imposition of intra-familial obligations, relationshipstatus continues to carry determinative weight. Particular attentionwill be paid to evolving jurisprudence in the ancillary reliefcontext which has given the fact of marriage, by itself, greaterdistributive consequences on divorce. It will be argued thatcontrary to predictions at the end of the twentieth century,the regulatory gap between married and unmarried relationshipsis becoming wider, and that obligations between parents whichare created by the ‘joint parenting exercise’ arebeing confined, in both arenas, to remedial awards based uponthe disadvantaged economic position of the primary caregiver.     

Voices of minor children heard and unheard in judicial divorce proceedings in the Netherlands

Under Dutch divorce law, children in theory have ample opportunity to make their voices heard: the petition for divorce must state how the children have been involved in preparing a parenting plan; all children aged 12 or 16 (depending on the context) or older have the right to be heard by the judge, and the judge may additionally hear younger children; the court may appoint a guardian ad litem to represent the interests of the child; and the child has the right to seek informal access to the court (by letter or telephone, for example) which may lead to an ex officio decision that changes the arrangements agreed by the parents in a divorce settlement or an earlier judicial decision. In practice, however, there is no guarantee that children's voices will actually be heard in divorce proceedings. Notably in the case of separation after an informal relationship (other than marriage or registered partnership) the opportunities given to children to be heard are often a dead letter.     

A Critical Appraisal of 'Triple Divorce' in Islamic Law

The issue of the ‘triple divorce’ is regarded ashighly sensitive among the Muslims, not only in India but elsewhere.The Holy Qur’an is very cautious in matters of divorce.Three talaqs have to be spaced over a period of 3 months togive husband and wife time for reconciliation through the interventionof relatives and friends. Moreover, talaq can be pronouncedonly when the wife is in a state of tuhur, ie purity after menstruation.Yet, despite clear Qur’anic injunctions to the contrary,immediate triple divorce is permitted, destroying marital lifein one breath. The practice of immediate triple divorce is widespreadamong Sunni Muslims and has legal validity. Even then the juristscall it a talaq-e-Bidat (innovative form of divorce). The disputehas been highlighted by reports of some Muslims instantly divorcingtheir wives by mail, over the telephone, and even through mobilephone text messages. This article explains the different theoriesof divorce prevailing in the contemporary Muslim world and whatchecks and restraints have been imposed by Islam over the exerciseof husband's power of talaq. The article critically appraisesthe ‘innovative triple divorce’ by examining whetherit is sanctioned by the Holy Quran or the sunnah and if thereis a consensus of opinion (ijma) on the effectiveness of tripledivorce.     

Changing Patterns of Legal Representation in Divorce: From Lawyers to Pro Se

Governmental assistance for legal representation in civil cases is far greater in the United Kingdom than in the United States of America. This article explores the extent of legal support for low–income Americans, particularly in the area of family law. Examination of the data on self–representation across the United States and over time shows decreased reliance on lawyers. Drawing on institutional and individual perspectives, the article then explores why individuals choose to represent themselves in divorce. What do lawyers add to a divorce besides cost? The article suggests patterns of lawyering depending upon the lawyer and the resources of the client. While some pro se individuals may thrive in the divorce process without the need of a lawyer, others are disadvantaged by the lack of services available to them. The matching process between case needs and legal representation does not work.     

Folktales of Legality: Family Law in the Procedural Republic The Narrative Structure of Family Law

This article explores the narrative structure offamily law where divorce is available on ground ofirretrievable breakdown following separation for oneyear. It argues that contemporary no-fault regimesexemplify law's procedural republic, a space with itsown legal, ethical and political requirements whichhas little if any connection to the life-worlds of theparties. Through an analysis of intractable parentingdisputes it argues that the interaction of no-faultdivorce, the requirement to have regard to the bestinterests of the child and the principle that childrenhave a right to contact with both parents has led tothe creation of particular narrative forms. Thesenarrative forms are characterised by their absolutismand map the unresolved grievances surrounding maritalbreakdown onto parenting disputes where the statutoryrequirements map them onto particular narratives andcounter-narratives. In this process, the narrativesof expert witnesses play an increasingly prominentrole, as do the naïve narratives put forward bylitigants in person. The article argues that thesenarratives are, in important ways, fictions and thatthey are compelled by the procedural requirements ofno-fault divorce. It argues further that thesefictions are a consequence of the empty narrative spaceat the heart of family law.     

LEGISLATING FOR SHARED PARENTING: EXPLORING SOME UNDERLYING ASSUMPTIONS

In 2006, the Australian parliament introduced new family law legislation about substantively shared overnight parenting arrangements between divorced couples. Other countries and state legislatures are currently debating the merits of similar legislation. A largely unquestionable premise underpins this reform, namely that the majority of children from separated families demonstrably benefit from the ongoing, warm and available involvement of both parents, in a climate of well-managed interparental conflict. The Australian legislation moves beyond encouragement of shared parenting in divorce cases with adequately functioning parents; it extends into grey areas which, to date, remain poorly serviced by credible research, including its application to children of all ages and to parents experiencing significant levels of ongoing conflict. Drawing on data from a longitudinal high-conflict divorce sample, this article challenges three assumptions that underpin a legislative preference for shared parenting, that shared parenting is viable and sustainable for divorced parents in conflict, that shared care enables improved cooperation between parents, and that as a result children will be less affected by their parents' conflict. The article further explores the influence of the mediation process on the choice and durability of shared parenting arrangements.     

THE EVOLUTION OF LAW AND WIFE ABUSE

For over 2000 years, laws have allowed husbands to beat their wives. Until the last century, American law conformed to this tradition. This article traces the roots of American law to English and Roman law, the latter giving husbands life-and-death authority over wives. In the nineteenth century American state courts permitted husbands to beat their wives for misconduct. Pioneering women in the temperance, abolitionist, and women's rights movements first attacked the common law ofwife-beating and restrictive divorce policies. By the 1870s, wife-beating became outlawed. Earlier in the nineteenth century, legislatures had expanded the grounds for divorce, opening an avenue of escape for physically abused wives. But the law still gives limited protection to assaulted spouses, who are more often wives than husbands.     

A left realist approach to antifeminist fathers’ rights groups

Despite earlier critiques of left realists’ failure to adequately address feminist concerns, recent left realist theorizing and empirical research have made valuable contributions to the understanding of woman abuse and other forms of gendered violence. Left realism has further potential to contribute to the criminological understanding of woman abuse and its contributing socioeconomic and cultural contexts. This article describes left realists’ early efforts to include gender in analyses of crime. It then summarizes feminist critiques of left realism and reviews the work that has responded to them. Drawing upon two prominent strands of feminist left realist theorizing about violence and gender, the paper proposes a preliminary left realist theory of antifeminist fathers’ rights group activism. It then outlines a provisional research agenda on antifeminist fathers’ rights groups, and proposes short and long term policies and practices to enhance the safety of abused mothers and their children following divorce or separation.     

ARE SELF-DETERMINED DIVORCE AND CHILD CUSTODY AGREEMENTS REALLY BETTER?

The results of this study support the hypothesis that couples who perceived themselves as having actively participated in the development of their own divorce decrees were more satisfied with their custody and financial arrangements and obligations. These same couples, however, reported more postdivorce conflict with their ex-spouses and more emotional maladjustment. It is concluded that there are costs and benefits attached to self-determined divorce decrees. Such decrees tend to require greater cooperation between ex-spouses, which in turn creates more opportunities for disagreements. Thus more attention needs to be paid to helping couples deal with the strife that is likely to occur after the divorce is final.     

ACCOMPLISHING THE MULTIPLE TASKS OF DIVORCE AND SEPARATION

This article presents two checklists (Child-Related Agreements and Spousal-Related Agreements) that facilitate professionals who assist couples in accomplishing the multiple tasks of divorce and separation. These two checklists have been and are being used in several court settings and in private mediation practices.     

Dealing with cryopreserved embryos upon divorce: a contractual approach aimed at preserving party expectations

The development of assisted reproductive technologies, including cryopreservation, or freezing, of embryos created through in vitro fertilization, has given rise to complex legal questions. Because cryopreservation permits indefinite storage of embryos, if couples fail to specify disposition directions, they may disagree regarding embryo treatment upon the occurrence of contingencies such as divorce. Few courts have resolved such disputes, and those that have appear to uphold the rights of the party seeking to prevent implantation in the absence of a written agreement specifying otherwise. In this Comment, Sara Petersen proposes that courts should draw upon contract law principles in determining whether the parties to such conflicts actually reached agreements regarding embryo disposition in the event of divorce. After analyzing existing precedent, the author assesses proposed approaches for deciding which party's interests should prevail and concludes that these methods are inherently ineffective. She then argues that, in an effort to preserve party expectations and to provide fair results, courts instead should examine whether the parties executed binding contracts or achieved mutual assent. Furthermore, she suggests that couples undergoing cryopreservation will be more likely to contemplate and to provide for various outcomes if they know that courts will look at evidence of their conversations and thought processes prior to cryopreserving their excess embryos.     

Gender in the Context of Same‐Sex Divorce and Relationship Dissolution

This article identifies ways that judges, lawyers, researchers, and policy makers may attend to the role of gender and gender dynamics facing same‐sex couples upon divorce or other relationship dissolution. When same‐sex couples marry, the legal system and society at large may project conceptions of gender onto same‐sex couples, often in a manner that conflicts with couples' intentions and practices. Gender and gender dynamics may affect the bases for dissolution, the financial aspects of dissolution, and the determination of child custody. The article also suggests directions for future research on the impact of gender on the dissolution of same‐sex relationships.     

Protecting Homemakers' Marriage-Specific Investments under No-Fault Divorce: A Model for Restructuring Alimony in Civil Law Countries

The radical reform of Greek family law in 1983 included theintroduction of no-fault divorce. This study examines the impactof the new liberalized divorce law on the well-being of homemakersin long-duration traditional marriages. We reviewed a sampleof reported judicial decisions on postdivorce maintenance andfound that Greek judges render restrictive interpretations ofthe general standards of need, adequacy, and sufficiency. Weconclude that judges have failed to compensate full-time homemakersfor their nonpecuniary contributions, and we propose a reliance-basedalimony model that judges can use to protect financially weakerspouses upon divorce.     

'Where the Parents are of the Same Sex': Quebec's Reforms to Filiation

To advance debates on legal responses to parenting by gay andlesbian couples, this article introduces reforms enacted bythe legislature of Quebec, a civil law jurisdiction with a codifiedprivate law, in 2002. Quebec's pioneering regime permits twopersons of the same sex to register as a child's parents frombirth, not only by adoption. They may do so if they conceivedthe child as part of a ‘parental project’. Moreover,a person alone may have a child via a parental project. Thearticle identifies the policy choices reflected in the amendmentsand highlights weaknesses in the drafting, instructive to policymakers in civil law or common law jurisdictions. It emphasizesthe structural difficulty of amending the civil law's fundamentalinstitution of filiation to recognize two parents of the samesex. Comparing with ad hoc judicial developments from a Canadiancommon law province, it underscores the potential in systematiclegislative reform. Conservative scholars have resisted thenew regime as an inappropriate departure from the pursuit offiliation's biological vocation. The study reveals how selectivelyjurists may remember the past and how swiftly they may characterizeinnovations relating to parentage – such as the earlierabolition of illegitimacy – as natural. The mingling ofbiological fact and fiction in the new regime underscores thesimilar blending in more traditional forms of filiation.     

Transgender Family Law

Transgender people face unique issues in parentage, custody, and divorce cases. Many transgender people are raising children or wish to do so. This article examines the main legal issues facing transgender people who become parents by giving birth or impregnating a partner, through assisted reproduction, through marriage, by raising a child, or through adoption. In the past, some courts viewed a parent's gender transition as a sufficient reason to terminate parental rights. Today, the law has shifted to provide much more security for transgender parents, though significant bias still remains, particularly in divorce and child custody cases. In addition, many states have not yet fully addressed how to determine the legal parentage of children born through assisted reproduction. I analyze the legal landscape for transgender parents and spouses and offer critical suggestions to ensure that transgender people are able to protect their families and their parental rights.     

HUNTER‐GATHERER COLLABORATIVE PRACTICE

This article describes the development of a practice group based on a hunter‐gatherer model, with the mission of providing high quality collaborative divorce services, with an emphasis on protecting children and divorcing partners, and expanding access to middle‐ and lower‐income families. The practice group professional disciplines include law, mental health divorce coaching, co‐parent coaching, financial analysis, and case administration. These professionals have collectively associated their individual practices to address challenges facing their collaborative practices. With common purpose, the practice group builds skills, generates client base, nurtures trust, and lays a common knowledge base. Collaborative divorce teams formed from its members serve divorcing families with efficient, cost‐conscious, interest‐based negotiation processes that protect children and help parties productively move on with their lives.     

婚姻法修改中几个争议问题的探讨

本文对婚姻法修改中几个有争议的问题进行了理论探讨 ,指出 :共同财产制更能反映婚姻的本质和特征 ,我国法定夫妻财产制应由夫妻共同财产和夫妻个人特有财产两部分构成 ;约定夫妻财产制应从其功能出发选择立法模式 ;改“夫妻感情确已破裂”为“婚姻关系确已破裂”作为判决离婚的理由 ,这一改变不意味着放宽离婚条件或增加离婚难度 ,离婚与社会稳定之间没有直接关系。     

Gender Neutrality,Rape and Trial Talk

This article examines the notion of gender neutrality in rape, its meaning and why rape definitions that include females and males as potential victims of rape have become influential in those jurisdictions that have engaged in significant levels of rape law reform over the last four decades. In so doing, several of Annabelle Mooney’s criticisms of gender neutral rape laws, published in an earlier article, will be critically examined. The second part of this article draws on themes that have been identified in the linguistic analysis of rape trials involving female complainants and applies those themes to two cases of rape and sexual assault involving male complainants. Finally, this article examines whether the tactics used by defence lawyers during cross-examination can be said to be uniquely ‘gendered’ or whether similar tactics exist in cases of male rape and sexual assault. Explanations for possible similarities in treatment are also examined.     

Divorce Israeli Style: Professional Perceptions of Gender and Power in Mediated and Lawyer-Negotiated Divorces

This study examines how the power of women is constructed by divorce professionals in a divorce process that is governed by rabbinical family law, the egalitarian ideology of the recently established family courts, and the growing use of mediation in divorce disputes. It is based on 254 questionnaires and 57 interviews with lawyers, mediators, and lawyer-mediators. We found that except for a minority of women lawyers, practitioners claimed that women were not disadvantaged by family law, and that mediation does not adversely affect weaker parties. However, their reactions to hypothetical situations indicated that rabbinical law does matter for women's bargaining power, and for lawyers' recommendations for mediation. This study reveals the complexities of the social construction of gender and power in divorce negotiations and the role of women professionals in empowering divorcing women.