Family law (also known as matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations. Its scope is really wide and for the purpose of presenting the most common family law issues, we have identified four key themes: marriage (and divorce), family finances, family violence, and neglect, and autonomy. We could perhaps add access to justice as a separate theme since it is one of the crucial issues facing many family law systems around the world, but for the time being, we will focus on the aforementioned four themes.
There are other themes that appear as cross-cutting issues. Cultural and religious diversity, for example, is an issue that has a particular impact on marriage and divorce. Likewise, informal relationships are relevant to family finances, while child arrangements on separation appear in relation to family violence and neglect. So, let’s take a look at the most common family law issues.
Marriage (and divorce)
The most common issues related to this theme are those concerning civil partnerships and the granting of religious divorces by sharia councils. Civil partnerships are a relatively recent addition to family law, introduced in response to pressures for the formal recognition of same-sex relationships.
They can be seen as “marriage in all but name”, but the fact that in most countries same-sex couples enter civil partnerships, which denies them the same rights as heterosexual couples who have access to marriage. Likewise, in some countries same-sex couples, unlike heterosexual ones, have two options to formalize their relationships. Therefore, whether civil partnerships will be phased out or remain an alternative to marriage remains to be seen.
On the other hand, there are countries where religious divorce is a necessity for those who believe civil divorce is not sufficient in the eyes of God and/or their community. Even though religious divorces are dealt with by a variety of faith bodies, including Roman Catholic and Jewish tribunals, it is the practice of Muslim divorce that has attracted the greatest public attention. Bodies known as sharia councils have developed in local areas to deal with matters of religious law, and especially family law.
Council members are generally self-appointed volunteers, respected persons in the local community, and almost exclusively men. These councils aren’t nationally or regionally coordinated. While they assist women to escape their marriages, there are cases where women feel pressured into taking this route by their communities, thus feeling they have little choice in the matter. This parallel legal system is a great obstacle and it seems unlikely a solution will be found any time soon.
In most countries, assets acquired during the marriage are jointly owned if the parties so specify. Otherwise, parties to a marriage maintain their own separate property. On divorce, however, all of the parties’ individual and jointly owned property becomes available for redistribution, which tries to achieve overall fairness between the parties. According to experts in Australian family law from Sydney, the fact that only married couples are entitled to enjoy the benefits of the relative merits of discretion is one of the burning issues.
It’s common for women and the children to end up in post-divorce poverty as a result of an equal split of marital assets. Many couples find themselves in an unequal financial position following a divorce. The breadwinner (usually the man) still has his income, earning capacity and pension savings throughout the marriage. On the other hand, the homemaker (usually the woman) finds herself in a position of continuing economic dependence, either on her former husband or the state.
Family violence and neglect
Conflicting trajectories have been noticed in relation to policy attention to child abuse and neglect and family violence. The state feels the need to be seen to be doing something in these areas, but at the same time trying to minimise public sector spending. That’s why there are so many symbolic gestures, such as criminalisation and child-protection performance targets, instead of real resources for dealing with abuse and providing safety for its victims.
Also, we can rightfully say that there is a disconnect between taking abuse seriously in public law domains and the pro-contract culture in private family law proceedings, which has resulted in claims that domestic abuse is ignored or minimised in such cases.
Autonomy and family law
Autonomy has become a rather prominent element of family law. It is promoted as an unqualified good without critical scrutiny as to its operation and its effect, especially for children. Two major areas in which autonomy has been promoted are out-of-court dispute resolution and prenuptial agreements.
Although alternative dispute resolution (ADR) has been an integral part of the family justice system, traditionally it took the form of out-of-court negotiations between solicitors, with an aim to broker a resolution on behalf of their clients. However, the “A” in ADR has come to stand for “autonomous” dispute resolution, where parties hope to settle post-separation issues between themselves without the assistance of either courts or lawyers.
When it comes to prenuptial agreements, many national laws used to hold them unenforceable on the basis that by contemplating the possibility of divorce, they were undermining the notion of marriage as a lifetime commitment, thus being contrary to public policy. However, this position came under increasing pressure in the context of wealthy individuals looking to protect their assets.
Commitments to the value of marriage, private ordering and minimising public sector spending dominate family law policies around the world. The focus on efficiency, rationalisation, and modernisation are currently much stronger than the one on equality and justice. Consequently, we can expect family law to remain an area of controversy and contestation in the years and decades to come.