In the past, family law was closely connected with the law of property and succession (see property law), and, judging from the records available, it must have originated principally in the economic and property questions created by the transfer of a female from her father’s family to the power and guardianship of her husband. Even with regard to the relationship between parent and child, legal concepts such as guardianship, custody, and legitimacy were associated with family power structures and family economic interests. Family law also traditionally has to do with matters of personal status—for example, the question of whether a person is to be considered married or single, legitimate or illegitimate—though the incidents and importance of these distinctions often derive from the law of property.
Family law shares an interest in certain social issues with other areas of law, including criminal law. For example, one issue that has received considerable attention since the late 20th century is the very difficult problem of violence within the family, which may take the form of physical violence by one adult member on another or by an adult on a child or some other violent or abusive conduct within a family circle. In serious cases the only real solution may be to terminate cohabitation or to remove an abused child from the family unit into some form of public or foster custody.
This article is not a treatise on the family laws of the world (which would require at least a volume) but a general survey of the common legal problems associated with the family.
A family group has a certain internal structure as well as relationships between itself and third parties. Family groups in some societies have tended to be complex, as, for example, the Roman paterfamilial group, the Chinese upper-class family, the Indian joint family, the samurai family in Japan, and many customary family structures in Africa. The family may be a part of a larger group such as the tribe or clan.
At present the dominant form of the family group consists of two spouses and the children they have produced or adopted. The law, therefore, is concerned mainly with the rights of the couple and their children and the duties of the couple to the children and to each other. In a strictly monogamous society, for example, the law will forbid a person to be married to more than one other person at the same time, while in other societies it will regulate the number of wives a man may simultaneously have (as Islamic law does).
Traditionally, family law has not concerned itself much with unions that are not commenced by legal marriage, though some systems of law have permitted the recognition of a “natural” child by a father for purposes such as inheritance and support. More recently, the family law of several European countries and of some jurisdictions in the United States was amended to recognize civil unions or domestic partnerships, which created many of the legal incidents of marriage for same-sex couples.
Since the 1970s, one-parent families have acquired an importance not adequately reflected in traditional law. It may be necessary to adapt the law to a greater extent to the needs of one-parent families in areas such as the organization of family and child-welfare services and the legal and administrative machinery for family support, employment assistance, day nurseries, and the like. The head of a single-parent household may have difficulty affording the high cost of child care while working or training, especially on a modest or low income.
Two persons might produce the economic incidents of marriage by executing appropriate contracts or settlements. In some legal systems, a contract in conventional form is the core of the constitution of marriage. The contract may be complex, with a variety of clauses, as in Islamic law (Sharīʾah). In most countries today, however, the legal documentation of a marriage is mainly a registration of the event. Basically, then, marriage in the legal sense is the implied creation of certain rights or obligations such as maintenance, marital property and succession rights, and the custody of minor children.
In modern systems, the parties to a marriage can usually create the economic incidents of the marriage by a separate agreement. In some early legal systems and in present systems in which customary family law pertains, there is little choice as to the economic incidents of marriage because these are fixed by custom. In legal systems that allow substantial scope for personal independence, the spouses can take up a position of their own as to the economic basis of their family group by means of a marriage contract or a will.
One feature that distinguishes marriage from a simple contract is that, in many countries, the parties cannot release themselves by mutual agreement. But some legislation in North America and western Europe comes close to permitting this; the grounds of divorce have been so widened that the marriage can be terminated, for example, after a period of separation (see below Divorce).
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, though examples may be found of groups rearing their children in common (usually in tribal societies). The parental system also has been justified on religious grounds.
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 its absence. 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 systems—those derived from Roman law—have 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.
The ordinary legal principle is that the consent of a natural parent (or guardian) is required for an adoption order by a court. This consent may be dispensed with if the natural parent or guardian cannot be found or has proved to be uninterested or cruel.
Adoption in the older legal systems (as in Roman law) was treated mainly in terms of the law of inheritance and succession. It provided a way of introducing an outsider into a family group and so bringing him within the scope of the succession rules. In modern systems, succession rights and other obligations and rights in cases of adoption are usually treated by analogy with those of unadopted children, and in some systems there is an explicit equation with such children.
The rapid development of education in the 19th and 20th centuries dramatically affected the family and the rights and obligations of family members. Until the latter part of the 19th century, even in highly developed countries, the organized education of children in the poorer classes tended to be casual or nil. Subsequently, the powers of parents to determine the educational upbringing of their children declined before the advance of public education and the complex legislation and financing on which it rested, though alternative systems of religious and other private education continued to exist for families who could afford them. In the late 20th century, increasing numbers of families in the United States and elsewhere chose to educate their children at home. Today the pattern in most of the industrialized world is compulsory education up to the late teens with opportunities for higher education into the early 20s and perhaps later.
The older law in many countries treated decision making with regard to children as a private family matter in which the courts should not intervene except in cases of serious child abuse or the like. In the English common law, for example, decisions of the latter part of the 19th century carried this doctrine of the “family veil” to considerable lengths by granting the father an autocratic position during his lifetime and even after, if a testamentary guardian was appointed upon his death. In most undeveloped societies, customary law gave similar authority to the father, though sometimes the custody and training of girls was the special province of the mother. In modern law, the power of the father has yielded to the principle that the welfare of the child is paramount; but this relaxation has raised important and difficult questions. The prevailing view is that the courts should take jurisdiction and intervene in family decision making when injustice, oppression, or cruelty might result if they did not. The consensus seems to be that it would be an extreme and undesirable principle to make parent-child relations wholly private and exclude the jurisdiction of the courts, but that it would also be extreme and undesirable to have no private domain of decision making and to bring all family disputes to court. The practical rule lies between the extremes; the application of such a rule is uncertain, and there are bound to be differences of opinion.
Questions of custody cannot be determined solely by deduction from a rule of law. They require the exercise of judicial discretion that takes account of all the relevant circumstances, which may be very complex. In divorce cases the situation is often a de facto one: separation of the parents has taken place some time before the legal proceedings, and the child is already in the custody of one of them, so that the divorce decree may do no more than regularize in law what has already happened in fact. Some common-law courts have on occasion ordered joint custody, whereby the noncustodial spouse is involved, together with the custodial spouse, in decision making regarding the welfare and upbringing of the child. Another development of growing importance is the use of some form of family counseling in questions of custody of children. The basic argument in favour of this approach is that a custody plan worked out with the help of mediation and agreed to voluntarily by the parents is likely to have greater success than a custody judgment imposed on the parents after litigation.
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 systems in which females are legally and economically dependent within a family hierarchy, the juridical essence of marriage is the transfer of the female 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 Islamic 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 responsibility for and power over the woman (bridewealth) and for a settlement on the groom by the bride’s family (dowry). 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 wedding service in the Church of England, 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 (Old English: “hand”) to the bridegroom. In some systems the marriage forms may have a “bride purchase” origin, in the sense of compensation to her family (though 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 bride’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 Sakha [Yakut]).
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 East Asia. The go-between and the professional marriage broker still have a role in some countries. The giving of dowries remains an important custom in some areas, especially South Asia.
The widespread modern idea of marriage is a voluntary exchange of promises between two people, usually a man and a woman. Even though a marriage may involve substantial decisions as to property, these matters now tend either to be automatic (when there is no marriage contract) or to be formalized separately from the marriage ceremony. The ceremony itself is normally an exchange of consents accompanied by religious observances or a civil ceremony (or both). The purpose of the legal formalities is to differentiate the relationship from concubinage and to create certain legal incidents such as maintenance, custody of children, rights under matrimonial regimes, intestate succession, and claims under health and life insurance policies and pension funds. Civil unions or domestic partnerships, in the jurisdictions where they are recognized, also create many of these incidents.
In earlier legal systems, especially in Asia, the woman’s consent was often unnecessary or of minor importance; the marriage negotiations took place between the woman’s father and the man or his family. Voluntary consent of the parties became important in Roman times. Roman law during the period of the empire distinguished between an agreement for present marriage and an agreement for future marriage (sponsalia per verba de praesenti and sponsalia per verba de futuro). This distinction was taken over by Christianity, and a promise for marriage per verba de futuro was supported by a guarantee or “deposit” payment or by a penalty clause in a marriage contract.
The view of the canon law of Christianity was that an engagement incapacitated a person from marriage to a different party and consequently provided ground for annulment of a marriage. This raised an issue that has troubled the civil lawyer but apparently not the common lawyer—i.e., whether penalties, forfeiture provisions, damages, and the like for breach of engagement or betrothal are consistent with the exchange of voluntary consent at the marriage ceremony. Thus, French law has been led to reject an action of breach of promise (while permitting an action in delict—that is, on the ground that one party has been wronged). The common law, on the other hand, allows claims for breach of promise, though the modern tendency is to eliminate this form of action by statute.
It has been difficult to delineate the boundaries between public and private interest in marriage law. The public interest is involved in the prevention of clandestine marriages; in requiring a license or the publication of banns as a condition precedent to marriage; in requiring parental consent for marriages between persons of certain ages; and in providing for the registration of marriages in a public manner. In practice, however, the marriage laws are often a mixture of functional administrative provisions (such as the requirement for registration and health certificates), old customs, and religious ceremonies. Marriage statutes were introduced in modern times to combat the danger of clandestine marriages, which were possible under the old law in Europe and England by some form of mutual consent. In addition to direct proof of consent, a clandestine marriage could be established by engagement followed by sexual intercourse (matrimonium subsequente copula) or by habit and repute marriage (evidence of acceptance in the community as being married persons). Clandestine marriage was significant at a time when a man could acquire control over the property of a woman, including absolute ownership of much of it. The emancipation of women has put an end to the economic advantages of the clandestine marriage, but the legislation to which it gave rise has left an impress on the statute books.
In order to satisfy the requirement of a voluntary consent to a marriage, a party must have reached an age at which he or she is able to give meaningful consent, and it is also implied that a person may be legally disqualified on mental grounds from having capacity to marry. Marriages of young children, negotiated by their parents, are prohibited in most modern societies. Historically, the attitude of the English common law was that a person under seven years of age lacked the mental ability to consent to marriage, and that between seven years and puberty there could be consent but not consummation. At common law, therefore, the marriage of a person between the ages of seven and 12 or 14 was “inchoate” and would become “choate” on reaching puberty, if no objection was raised. Most modern legal systems provide for a legal minimum age of marriage ranging from 15 to 18 years. Some systems require parental consent to marriage when the parties are above the minimum age but below some other age, and failure to obtain this may be a ground for annulment. Parental consent has a long historical tradition, and there have been systems in which the girl’s consent was virtually unnecessary. It is difficult to say, therefore, whether modern provisions have a valid social function or are the flotsam of older ideas on marriage.
Other laws forbid marriage between persons having certain ties of relationship, either of blood or of marriage. “Forbidden degrees” of one sort or another exist in most social groups. The rules against marrying close relatives are sometimes said to be directed against the dangers of inbreeding, but this does not explain the prohibition against unions between persons who are related only by marriage. In classical Chinese society, marriage was regarded as a linking of different families, and the traditional pattern was exogamy (marriage outside the family). In ancient Egypt, on the other hand, where the pharaoh was deified, marriages within the blood were considered desirable in order to preserve its purity. Marriages between cousins are apparently encouraged in some Arab countries, perhaps to strengthen family ties and to keep property together.
Religion has had a strong influence on marriage law, often providing the main basis of its authority. Hindu family law, which goes back at least 4,000 years (and may be the oldest known system), is a branch of dharma—that is, the aggregate of religious, moral, social, and legal duties and obligations as developed by the Smṛti Smritis, or collections of the law. Islamic and Jewish family law also rests on spiritual authority. Religious courts have had jurisdiction over family matters in various countries, and in some countries they still possess it. Some modern religious courts retain only their spiritual jurisdiction over marriage and divorce; their judgments have no standing in the secular law. In some Roman Catholic and Greek Orthodox Christian marriages and also in Muslim and Jewish marriages, the application of the religious law is regarded as binding upon persons belonging to the faith. Where religious texts provide the literal authority for legal principles, as in Islamic law, it may be necessary to reinterpret the texts in order to reform the law. This raises complex issues in those Muslim countries where there are movements for greater equality of the sexes.
At the beginning of the 21st century, marriage between people of the same sex was legally recognized in two countries, The the Netherlands and Belgium (the Belgian law limited marriageable partners to those whose national laws allowed such marriages—i.e., to Belgians and Netherlanders), as well as in some Canadian provinces. In the United States, marriage was defined in federal law—the Defense of Marriage Act (1996)—as a legal union between one man and one woman only. Beginning in the mid-1990s, more than 35 states passed similar laws or equivalent constitutional amendments, though many of these laws were challenged.
The comparative legal history of marital property, viewed in broad perspective, covers a period of about 4,000 years, during most of which a husband was generally regarded as a quasi-guardian of his wife, who was dependent upon him economically and legally. The English common law, for example, removed the separate legal personality of a woman when she married and merged it in that of her husband, though she regained it if she became a widow. Her husband acquired extensive rights to the administration and ownership of her property, including full ownership of any moneys she received from employment or business, with no obligation even to give an accounting.
The emancipation of women, which occurred in many countries during the late 19th and early 20th centuries, profoundly affected family law and marital property. The Scandinavian countries made radical reforms in their marital property laws in the 1920s, introducing a new type of matrimonial regime in which the spouses retain independent control of their property except for some items for the disposal of which the consent of the other spouse is required. This arrangement was influential in the reforms of other countries.
In the 1970s, laws governing marital property came under increasing scrutiny in England, Belgium, Israel, Canada, and other countries. In the United States, the right of cohabitating but unmarried couples to property settlements and even to monetary support from each other at the termination of their relationships was established in a series of court cases. Property settlements also now typically take into account the non-monetary contributions of the woman as homemaker and mother, the emotional support she provides to her husband, as well as the professional or educational sacrifices her role in the marriage may entail.
The law of maintenance and support has differed from that of marital property in most countries. A widow, for example, normally receives some share in her husband’s estate upon his death. Some systems of law require that dependents receive a compulsory share in the estate or dependent’s relief or family provision (that is, financial support out of the estate for a dependent in straitened circumstances). Most systems of law have traditionally regarded financial support as the responsibility of the husband and father, though this is no longer automatically the case.
Social welfare legislation and the principle that a child’s welfare is paramount have added a dimension and an inconsistency to the traditional principle of paternal responsibility. The new dimension is a public one and implies that society has an ultimate responsibility to see that children receive at least a minimum standard of maintenance. In some countries—for example, the United States, Canada, and various European countries—attempts have been made to combine parental and public responsibility for the child’s welfare.
The enforcement of the legal obligation of a parent to maintain a child runs into a number of difficulties in law and practice. The non-custodial parent may be too poor to support his child, or he may be impossible to locate, or he may be in prison (perhaps for his refusal to pay). The custodial parent may be reluctant to sue for child support. Where there are social welfare programs supported by taxes, efforts may be made to protect the tax revenues by, for example, requiring the custodial parent to sue as a condition of receiving welfare payments. Sometimes the authorities institute criminal or contempt proceedings against the delinquent parent. In the United States, state laws passed in the 1980s aimed to crack down on so-called “deadbeat dads” by providing for the garnishment of wages of parents who were delinquent in their child-support payments. Other measures included the imposition of liens on property and the withholding of unpaid support from federal and state income tax refunds.
Reforms in marital property laws have tended to reflect the wishes of spouses and their families, rather than traditional customs, religious attitudes, and dogmatic formulas. The French civil code of 1804 began a European pattern of giving spouses a choice of matrimonial regime: the codifiers were confronted with a variety of customary laws in different parts of the country, and, not wishing to impose one of them, they included alternatives in the code, designating one, the Custom of Paris, as the legal regime that would apply if the parties did not select another in a marriage contract. In common-law countries, the tendency has been to favour separation of property—a tendency resulting more by accident than by intention. This has come about because most of these countries adopted married women’s property legislation that removed the incapacity of a married woman to make contracts and deal with her property, thus destroying the existing system by which the wife’s property passed into the control of the husband. No new matrimonial system was constructed, so that the spouses were placed in the position of separate individuals so far as property was concerned. They can, of course, draw up marriage contracts or settlements to express their own wishes. Beginning in the late 20th century, it became common for couples in the United States to use contracts known as prenuptial agreements to protect their individual property or to ensure themselves of support in case their marriages dissolved.
A marital property system should try to balance two sets of interests: the interests of the spouses and the interests of third parties such as purchasers, creditors, and business partners. Community-property regimes emphasize the first but are less attractive in terms of the second, because the property is tied up in the community and is subject to the interests of both spouses, whereas the third party may be dealing with only one of them. Separation of property gives property independence to each spouse, but it does not provide for sharing unless the spouses place items of property under joint ownership. Consequently, there has been a trend in many countries toward new regimes giving the husband and wife independence in dealing with property but also providing rules for a division of net assets on liquidation of the marriage.
In English common law, as amended by the property legislation of the 19th century, a husband could not sue his wife in tort (that is, for a wrongful civil act not arising from contract), and she could sue him only in respect of damage to her separate property. This has been variously explained as stemming from the doctrine of the unity of the legal personalities of husband and wife (so that the plaintiff and the defendant are the same legal person) or from the belief that it would be disruptive to the family to allow damage suits between spouses. The modern tendency is to permit delict or tort action between spouses. This seems consistent with the fact that many damage suits, such as automobile accident claims, are covered by insurance, and the litigation in such cases is therefore between two insurance companies with the spouses as nominal parties. Movements exist in North America and Europe favouring the recognition of a “no-fault” basis for certain delict or tort proceedings; this would transfer the emphasis in such actions to securing compensation for the person who suffered the damage, rather than determining whether the plaintiff can establish a cause of action (which usually means proving fault).
Some marital property systems that are basically separation of property have modifications for the situation in which, for example, an asset has been acquired by contributions from both spouses with the intention that both will benefit from its purchase—as with a home, furnishings, an automobile, a joint bank account, or joint investments. But the attitudes of the spouses as to their property after a marriage has broken down may be quite different from their intentions when an asset was acquired. There are decisions of the English courts that imply that in some of these circumstances, at least, the net value of the asset should be divided equally on the maxim that “equality is equity.” The boundaries of this principle, however, are not at all certain.
Japanese marital property law was revised in 1947, and the present legal regime is a modified form of separation of property. Under this regime, property to which only one spouse has title, but in the acquisition of which both have really cooperated during their marriage, is considered substantially co-owned. The civil code has been interpreted to the effect that substantially co-owned property is attributed to the title holder in a question involving third parties and to both spouses in a question between the spouses themselves.
A marriage can terminate as a human relationship before it is dissolved by law. Quite often the court rulings as to property and the custody of children will merely confirm arrangements that have already been made by the parties concerned. Before a union can be dissolved by divorce, there must have been a valid marriage. If a marriage has been imperfectly constituted in law, it may be annulled; grounds for annulment include lack of capacity, no reality of consent by the parties, a vitiating defect in the marriage ceremony, or the subsequent discovery of a “defect” such as inability to consummate the marriage.
In old legal systems, marriage was conceived as the transfer of a woman from the power of her family to that of her husband under terms usually specified in the marriage contract. The standard method of dissolving a marriage if both parties were alive was repudiation, resulting usually in the return of the woman to the power of her family. Repudiation has had a considerable history; it has strongly influenced marriage law in Muslim, Jewish, Chinese, and Japanese law. In Muslim law, repudiation can occur without proof of legally designated fault or a breakdown of the marriage. In practice, of course, there are checks on the too facile use of this power by a husband, such as objection from the wife’s family, the obligation to repay the value of a dowry, or religious disapproval. In Roman marriage law, unilateral repudiation at will was permitted, and this freedom existed for some time in the early Christian era. The concern of the Roman law was for solemnity rather than grounds, and unilateral divorce was by a notification of repudiation before seven witnesses.
At the other extreme from repudiation at will is the view of marriage as a sacrament (as in the teaching of certain Christian churches) that may not be dissolved during the joint lives of the spouses. Formerly, a Hindu marriage was indissoluble except by caste custom; remarriage, for instance, might be tolerated only for women of lower-ranking castes.
Between the extremes of repudiation at will and indissoluble marriage, there are various divorce formulas: divorce for fault, such as adultery, desertion, cruelty, alcoholism, or imprisonment; divorce on grounds analogous to frustration of contract, such as incurable insanity subsequent to the marriage or disappearance of the spouse; and, more recently, “no-fault” divorce, on grounds such as incompatibility, irreconcilable differences, and irretrievable breakdown of the marriage.
A complicating factor in divorce law is the question of giving recognition to foreign divorces. The divorce laws of countries and states differ, and so do their rules for recognition of divorces elsewhere. A person living in a jurisdiction in which divorce is difficult to obtain may be able to go to another in which divorce laws are more liberal and obtain a dissolution of the marriage that will be recognized in the first jurisdiction. A feature of private international family law is the “limping” relationship—when a person is regarded as married by one country and as single by another, or when a child is regarded as legitimate by one country and as illegitimate by another. One reason why a country may restrict the recognition of divorces is that there are a number of jurisdictions in which divorce is granted on liberal grounds and with only nominal connections between the spouses and the divorce-granting jurisdiction (sometimes giving the impression of “divorce mills” that are operated for commercial reasons).
Divorce stems from the desire to end an intimate human relationship that may have existed for some years. It is not an ordinary dispute at law; it has little in common with the interpretation of a business deal, a tax claim, a criminal charge, or other legal questions that can be presented fairly precisely. In a divorce, only the spouses can really know the differences between them, and neglect of this distinction can produce reasoning by false analogy.
In some countries there are special courts for family matters, set up in pursuit of religious, political, or social objectives; these include Christian, Muslim, and Jewish ecclesiastical courts.
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 services—social 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.
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 Régime matrimonial légal dans les législations contemporaines, 2nd ed. (1974); and the journal Revue internationale de droit comparé (quarterly).
Works dealing with civil-law systems include Virgilio De Sá Pereira, Direito de familia, 2nd ed. (1959); Marcel Brazier, Le Nouveau Droit des époux et les régimes 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 Réforme des régimes matrimoniaux, 4th ed., vol. 1, Statut fondamental et régime légal (1977); Joachim Gernhuber, Lehrbuch des Familienrechts, 3rd rev. ed. (1980); André Colomer, Droit civil: régimes matrimoniaux (1982); Günther Beitzke, Familienrecht, 25th ed. (1988); and José Castán Tobeñas, Derecho civil español, común y foral, vol. 5, Derecho de familia, 10th ed. rev. and updated by Gabriel García Cantero and José Ma. Castán Vázquez (1995).
General studies of common-law systems are Ronald H. Graveson and Francis R. Crane (eds.), A Century of Family Law, 1857–1957 (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).
Family law in Islamic society is explored in Joseph Schacht, An Introduction to Islamic Law (1964, reprinted 1982); Yvon Linant De Bellefonds, Traité de droit musulman comparé, 3 vol. (1965–73); Asaf A.A. Fyzee, Outlines of Muhammadan Law, 4th ed. (1974); B.R. Verma, Islamic Law—Personal, 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. (1976–78); 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 Régimes matrimoniaux du sud-est de l’Asie, 2 vol. (1952–55); 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).