FAMILY LAW

body of law regulating family relationships, including marriage and divorce, the treatment of children, and economic issues. In the past, family law has been closely connected with the law of property and succession, and from the records available, it must have had its principal origins in the economic and property questions created by the transfer of a woman from her father's family to the power and guardianship of her husband. Even in regard to parent and child, such legal concepts as guardianship, custody, and legitimacy were associated with family power structures and family economic interests. Family law also has to do with matters of personal statusfor example, the question whether X is to be considered married or single or whether Y is to be classed as legitimatealthough the incidents and importance of these distinctions often lead back to the law of property. Family law shares an interest in certain social issues with other areas of law (e.g., criminal law). One of the issues that has received a substantially increased amount of attention, from various points of view, is the very difficult problem of violence within the family. This may take the form of physical violence by one adult member on another (in this case the woman is almost always the victim), or by an adult on a child, or of some other form of violent or abusive conduct within a family circle. Difficulties can arise when the wrongdoer returns to cohabitation with the person who has made a complaint. In serious cases the only real solution may be a termination of cohabitation, or the removal of an abused child from the family unit, for example, into some form of public or foster custody. The problem is one of social importance, and some studies (e.g., several done in North America) indicate that a high proportion of violent crime originates in family units. This article is not a treatise on the family laws of the world (which would require at least a volume) but a consideration of the role of law in regard to the family and an effort to identify the main problems on a comparative basis. In recent decades, family law has been subject to reexamination in many parts of the world, and the greater legal status and independence acquired by married women has been a catalyst. Additional reading Family law encompasses an enormous literature. Further, the principal legal writings in each country are in the language of that country, and there has been little translation of law books or articles. The following are a few suggestions for further reading, including a number of titles relating to the complex subject of comparative marital property.Comparative law is the focus of Mary Ann Glendon, State, Law, and Family: Family Law in Transition in the United States and Western Europe (1977), and a successor work, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (1989); John Eekelaar and Sanford N. Katz (eds.), Marriage and Cohabitation in Contemporary Societies: Areas of Legal, Social, and Ethical Change (1980); M.T. Meulders-Klein and John Eekelaar (eds.), Family, State, and Individual Economic Security, 2 vol. (1988), in English and French; Jean Patarin and Imre Zajtay (eds.), Le Rgime matrimonial lgal dans les lgislations contemporaines, 2nd ed. (1974); and the journal Revue internationale de droit compar (quarterly).Works dealing with civil-law systems include Virgilio De S Pereira, Direito de familia, 2nd ed. (1959); Marcel Brazier, Le Nouveau Droit des poux et les rgimes matrimoniaux (1965); F.H. Lawson, A.E. Anton, and Lionel Neville Brown (eds.), Amos and Walton's Introduction to French Law, 3rd ed. (1967); Jean Patarin and Georges Morin, La Rforme des rgimes matrimoniaux, 4th ed., vol. 1, Statut fondamental et rgime lgal (1977); Joachim Gernhuber, Lehrbuch des Familienrechts, 3rd rev. ed. (1980); Andr Colomer, Droit civil: rgimes matrimoniaux (1982); Gnther Beitzke, Familienrecht, 25th ed. (1988); and Jos Castn Tobeas, Derecho civil espaol, comn y foral, vol. 5, Derecho de familia, 10th ed. rev. and updated by Gabriel Garca Cantero and Jos Ma. Castn Vzquez (1995).General studies of common-law systems are Ronald H. Graveson and Francis R. Crane (eds.), A Century of Family Law, 18571957 (1957); Mary Ann Glendon, The New Family and the New Property (1981); John Eekelaar, Family Law and Social Policy, 2nd ed. (1984); Michael D.A. Freeman (ed.), The State, the Law, and the Family: Critical Perspectives (1984); Homer H. Clark, Jr., The Law of Domestic Relations in the United States, 2nd ed., 2 vol. (1987); Laurence D. Houlgate, Family and State: The Philosophy of Family Law (1988); Stephen M. Cretney and J.M. Masson, Principles of Family Law, 5th ed. (1990); Harry D. Krause (ed.), Family Law, 2 vol. (1992); and P.M. Bromley and N.V. Lowe, Family Law, 8th ed. (1992).Works treating the subject of divorce and laws affecting the distribution of marital property include Ian F.G. Baxter, Marital Property (1973); Judith S. Wallerstein and Joan Berlin Kelly, Surviving the Breakup: How Children and Parents Cope with Divorce (1980); W.S. McClanahan, Community Property Law in the United States (1982); Lenore J. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985); Herbert Jacob, Silent Revolution: The Transformation of Divorce Law in the United States (1988); Judith S. Wallerstein and Sandra Blakeslee, Second Chances: Men, Women, and Children a Decade After Divorce (1989); and Stephen D. Sugarman and Herma Hill Kay (eds.), Divorce Reform at the Crossroads (1990).Discussions of child custody and child welfare can be found in Joseph Goldstein, Anna Freud, and Albert J. Solnit, Beyond the Best Interests of the Child, new ed. (1979); Jeff Atkinson, Modern Child Custody Practice, 2 vol. (1986); Samuel M. Davis and Mortimer D. Schwartz, Children's Rights and the Law (1987); Andrew Bainham and Stephen M. Cretney, Children: The Modern Law (1993); and Donald T. Kramer (ed.), Legal Rights of Children, 2nd ed., 3 vol. (1994).Reproductive issues and surrogacy are examined in Sheila McLean (ed.), Legal Issues in Human Reproduction (1989); Elaine Sutherland and Alexander McCall Smith (eds.), Family Rights: Family Law and Medical Advance (1990), discussing the impact of rapid scientific change on the law; Larry Gostin (ed.), Surrogate Motherhood: Politics and Privacy (1990); and Martha A. Field, Surrogate Motherhood, expanded ed. (1990).Studies of eastern European systems of family law are Kazimierz Grzybowski, Soviet Legal Institutions (1962, reprinted 1982); Edward L. Johnson, An Introduction to the Soviet Legal System (1969); Dominik Lasok, Polish Family Law (1968); Endre Nizsalovszky, Order of the Family, trans. from Hungarian (1968); and tefan Luby (ed.), Le Droit civil tchcoslovaque (1969).Family law in Muslim society is explored in Joseph Schacht, An Introduction to Islamic Law (1964, reprinted 1982); Yvon Linant De Bellefonds, Trait de droit musulman compar, 3 vol. (196573); Asaf A.A. Fyzee, Outlines of Muhammadan Law, 4th ed. (1974); B.R. Verma, Islamic LawPersonal, 6th ed. rev. by M.H. Beg and S.K. Verma (1986); C.G. Weeramantry, Islamic Jurisprudence: An International Perspective (1988); and Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, rev. ed. (1991).Hindu law is discussed in J. Duncan M. Derrett, Essays in Classical and Modern Hindu Law, 4 vol. (197678); and Dinshah H. Mulla, Principles of Hindu Law, 15th ed. by Sunderlal T. Desai (1982).Assessments of family law in Asian and African systems are presented in Robert Lingat, Les Rgimes matrimoniaux du sud-est de l'Asie, 2 vol. (195255); Arthur Taylor Von Mehren (ed.), Law in Japan (1963); J.N.D. Anderson (ed.), Family Law in Asia and Africa (1968); David C. Buxbaum (ed.), Family Law and Customary Law in Asia (1968), and Chinese Family Law and Social Change in Historical and Comparative Perspective (1978); B.P. Beri, Law of Marriage and Divorce in India (1982); and Hiroshi Oda, Japanese Law (1992). Ian F.G. Baxter The Editors of the Encyclopdia Britannica Children It is almost universally the rule that natural or adopting parents have a primary duty to maintain their minor children. In the great majority of cases, the care and upbringing of a child belongs to its biological parents automatically, without regard to their qualification or suitability. No doubt this arrangement was due originally to its convenience and to lack of alternatives, although examples may be found of groups rearing their children in common (usually in tribal societies). The parental system has been justified on religious grounds. Thus, in an Irish case the court declared: The authority of a father to guide and govern the education of his child is a very sacred thing, bestowed by the Almighty, and to be sustained to the uttermost by human law. At least one criticism of this system is the inequality of opportunity and upbringing it can offer one child as compared with another. Legitimacy By the common law of England, an illegitimate child was a filius nullius (without relatives). There may have been two main reasons for this former, discriminatory attitude. First, certain unions between the sexes were designated as lawful marriages, and a man of importance, agreeing to his daughter's marriage, would insist on her having the status of legal wife. Second, paternity, in the legal sense, was easier to establish in the case of a lawful marriage than in the absence of a marriage. The common law of England, for example, presumes in favour of legitimacy when the child is born in lawful wedlock, even if the biological facts may be otherwise. Civil-law systemsthose derived from Roman lawhave been less absolute than the common law; they provide ways of legitimating a child, such as through subsequent marriage of the parents or through an act of recognition by the father. Modern statute law has brought the positions in different systems closer together and removed some of the worst features of the doctrine of legitimacy. Legitimacy is a concept of diminishing importance in modern law, and even countries that still retain it have usually modified it. They have done so by basing support obligations on parentage rather than on a legally valid marriage and by giving rights of intestate succession to children born out of wedlock. By the legal devices of legitimation and adoption and by other means, the difference between the legal status of a legitimate and that of an illegitimate child has been narrowed. Illegitimacy is frequently associated with poverty; a contributing factor in this has been the tendency to exclude the child by law and social circumstances from what the community regarded as a customary and respectable family structure. The illegitimate child has usually lacked the financial support available in the conventional family group. Sometimes the laws have been designed to prevent the cost of support from falling on those not biologically responsible for the birth. Thus, English legislation of 1576 provided that an order could be made on the putative father for the maintenance of a bastard by the parish (the local government). The thrust of modern law-reform proposals, in general, is that the welfare of all children should be a matter of honest and effective public concern, made mandatory by statutory provisions. Family courts In some countries there are special courts for family matters, set up in pursuit of religious, political, or social objectives; these include the Christian, Muslim, and Jewish ecclesiastical courts. There are also people's courts and conciliation courts, particularly in Communist countries. Another approach has been to establish social courts that have a functional relation to the legal problems affecting families. Such problems include marriage, divorce, annulment, matrimonial regime, maintenance of spouses or of children, adoption, custody of children, legitimacy, filiation proceedings, juvenile delinquency, care and protection of children, assault on a spouse or a child, torts between spouses, marriage contracts, and judicial separation. Although these are the problems that produce the largest volume of private law litigation in most countries, family law has not, in many countries, been given a corresponding priority by the regular courts. Those who favour special courts for family matters argue that family law is concerned with human relationships that require a judicial environment different from that of ordinary civil actions. The facts of the dispute in a family matter may not be as significant as the underlying problems (financial difficulties, health, addiction to drugs or alcohol) that have projected the issue. Another argument favouring family courts is that a high proportion of family proceedings are noncontentious or undefended; for example, proceedings concerning adoption and children in need of care normally require not so much the application of law as an inquiry into what is in the best interests of the child. In family matters, moreover, the court has need of ancillary servicessocial workers, probation officers, liaison with various social agencies. Since children and young people are often involved, there is need of special legal officers to present inquiry material to the court or to represent the interests of the children (which may conflict with the positions taken by their parents). A number of countries have established special courts for cases relating to children and young people (sometimes with lay members) and special procedures for the disposition of such cases. Less progress has been made in the area of comprehensive family courts. One reason may be that family law can be less rewarding and more time-consuming as compared with more lucrative and prestigious fields of law. It is sometimes argued that judges should be given a wide discretion in family cases. This seems to have been done in the family codes of eastern Europe and the People's Republic of China, which are loosely constructed with statements of politico-legal principles and leave much leeway to the judges or conciliators. In the United Kingdom and the United States the proposal has been made that in a divorce case, for example, the court should have discretion not only as to the custody of children but also as to arrangements for maintenance and disposition of property; the court should do what it thinks just, having regard to the history of the marriage and the behaviour of the spouses. Against this it is argued that such discretion would tend to turn tribunals into courts of morals in which the personal views of judges could prevail in the absence of applicable legal rules. Marriage The history of marriage is bound up with the legal and economic dependence of women upon men and the legal incapacities of women in owning and dealing with property. In Babylonian law, for example, one characteristic of a legal wife was that she brought property to the marriage (as a contribution to the support of the new family). In The Story of Civilization the author Will Durant asks what changed virginity from a fault into a virtue and answers the question: Doubtless it was the institution of property. Premarital chastity came as an extension, to the daughters, of the proprietary feeling with which the patriarchal male looked upon his wife. The valuation of virginity rose when, under marriage by purchase, the virgin bride was found to bring a higher price than her weak sister; the virgin gave promise, by her past, of that marital fidelity which now seemed so precious to men beset by worry lest they should leave their property to surreptitious children. Before there was a developed law of wills, there would be a distribution of property upon the death of a paterfamilias. The property taken by a daughter on marriage may have been to compensate for her not being in the family group at the next such distribution. It was also customary for the man to make gifts to his bride, either in property or by giving services to the bride's family, as a token of the seriousness of his intentions. Marriage as a transfer of dependence In systems in which the females are legally and economically dependent within a family hierarchy, the juridical essence of marriage is the transfer of the woman from control by her own family to control by her husband. Marriage customs of many times, countries, and religions exhibit this principle in a variety of forms, for example, in certain kinds of Roman marriage, in marriages among the Japanese samurai, in the traditional Chinese marriage, in the Hindu marriage based on the joint family, in rabbinical law, in Muslim law, and in Germanic and Celtic customary law. The Germanic traditions were imported into England, where they combined with Norman concepts to become the basis of the English common law of marriage. The Germanic law provided, at least in higher class families with property, for a payment by the bridegroom for the transfer of the Mund (responsibility for, and power over, the woman); for a settlement on the groom by the bride's family; and for a so-called Morgengab, which may have represented the completion of the settlement. The giving of a ring had a symbolic role in many kinds of wedding and betrothal ceremonies. The word wed derives from the Anglo-Saxon word for security given to bind a promise. The property used as security was not necessarily transferred but given symbolically ( i.e., the ring). In a modern Church of England wedding service, the giving of security is reflected in the words With this ring I thee wed, and the settlement of property in the words and with all my worldly goods I thee endow. The minister has previously asked, Who giveth this woman to be married to this man? and, on receiving the woman at her father's or friend's hands, proceeds with the ceremony. This giving away of the woman by her family reflects the transfer of the Mund to the bridegroom. In some systems the marriage forms may have a bride purchase origin, in the sense of compensation to her family (although there are differences of opinion as to the meaning of the customary forms); this was true in certain kinds of marriage in the earlier Roman republic, in Babylonian or Aramaic marriages, in early Arabic marriages, in certain Chinese unions (at least with regard to concubines, in which cases the transaction was more openly a purchase from the girl's parents), in customary marriage in some parts of Africa (e.g., Nigeria, Ghana, Kenya), and in customary marriage among the nomadic tribes of Siberia (e.g., the Kirgiz or Yakuts). The ancient concept of marriage in many legal systems is that of a transaction between families (and this has sometimes persisted to the present day). Although the consent of the bride and bridegroom was almost always formally required, it may be questioned how real the consent was in the case of a child bride or in marriages between parties who did not see each other beforehand. Go-betweens and marriage brokers have been part of the marriage customs of many countries, especially in the East. The go-between and the professional marriage broker still have a following in some countries. Some have suggested that computer matching for marriage may become a modern development of the go-between concept.