Most people whose relationships breakdown are able to reach agreement about parenting and financial matters outside the Australian family court system. Even for those parties who commence litigation, the emphasis remains on reaching an agreement with the vast majority of matters being resolved by consent orders rather than judicial determination. Reaching agreement in relation to parenting and property matters is stressful, and this stress is exacerbated once legal proceedings have commenced. Drawing on data from a large study that explored the experiences of self-represented litigants (SRLs) in Australian family law proceedings involving allegations about family violence, this article examines the pressures experienced by female SRLs, who are victims of family violence, to consent to orders. These pressures include: judicial pressure, lawyers’ practices, fear of their former partner, and the financial and emotional costs of litigation. These pressures are significant and can impede the extent to which these agreements can be viewed as consensual. Participants reported that these significant and intersecting pressures resulted in them ‘agreeing’ to orders that they saw as unsafe, or financial orders that were less than they were entitled to. Whilst these orders are subject to judicial scrutiny; this study raises questions about the quality and utility of resultant consent orders.
{"title":"Compromised ‘consent’ in Australian Family Law Proceedings","authors":"M. Kaye, T. Booth, J. Wangmann","doi":"10.1093/lawfam/ebab033","DOIUrl":"https://doi.org/10.1093/lawfam/ebab033","url":null,"abstract":"\u0000 Most people whose relationships breakdown are able to reach agreement about parenting and financial matters outside the Australian family court system. Even for those parties who commence litigation, the emphasis remains on reaching an agreement with the vast majority of matters being resolved by consent orders rather than judicial determination. Reaching agreement in relation to parenting and property matters is stressful, and this stress is exacerbated once legal proceedings have commenced.\u0000 Drawing on data from a large study that explored the experiences of self-represented litigants (SRLs) in Australian family law proceedings involving allegations about family violence, this article examines the pressures experienced by female SRLs, who are victims of family violence, to consent to orders. These pressures include: judicial pressure, lawyers’ practices, fear of their former partner, and the financial and emotional costs of litigation. These pressures are significant and can impede the extent to which these agreements can be viewed as consensual. Participants reported that these significant and intersecting pressures resulted in them ‘agreeing’ to orders that they saw as unsafe, or financial orders that were less than they were entitled to. Whilst these orders are subject to judicial scrutiny; this study raises questions about the quality and utility of resultant consent orders.","PeriodicalId":51869,"journal":{"name":"International Journal of Law Policy and the Family","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48974030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Love, Labour and Law: Early and Child Marriage in India, edited by Samita Sen and Anindita Ghosh","authors":"S. Chaudhary","doi":"10.1093/lawfam/ebab024","DOIUrl":"https://doi.org/10.1093/lawfam/ebab024","url":null,"abstract":"","PeriodicalId":51869,"journal":{"name":"International Journal of Law Policy and the Family","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47143458","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
With the legalisation of same-sex marriages by more states, it is a matter of time before jurisdictions that have yet to do so will need to decide on the recognition of foreign same-sex marriages and divorces. Public policy – the unruly horse – peers its head out again even if these marriages and divorces pass the muster of the common law private international law rules. This article explores the role of public policy in such situations and proposes a framework for the balancing of the claimed rights, comity, and public policy. Applying the proposed framework, even if there is a public policy against same-sex marriage, this public policy should play a diminished role in private international law such that foreign same-sex marriages and divorces can be recognised by the forum.
{"title":"Taming the Unruly Public Policy Horse in Private International Law in Family Law: A Pragmatic Singaporean Approach to the Recognition of Foreign Same-Sex Marriages and Divorces","authors":"L. Chan","doi":"10.1093/lawfam/ebab010","DOIUrl":"https://doi.org/10.1093/lawfam/ebab010","url":null,"abstract":"\u0000 With the legalisation of same-sex marriages by more states, it is a matter of time before jurisdictions that have yet to do so will need to decide on the recognition of foreign same-sex marriages and divorces. Public policy – the unruly horse – peers its head out again even if these marriages and divorces pass the muster of the common law private international law rules. This article explores the role of public policy in such situations and proposes a framework for the balancing of the claimed rights, comity, and public policy. Applying the proposed framework, even if there is a public policy against same-sex marriage, this public policy should play a diminished role in private international law such that foreign same-sex marriages and divorces can be recognised by the forum.","PeriodicalId":51869,"journal":{"name":"International Journal of Law Policy and the Family","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45867077","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2010 the Republic of North Macedonia began the process of drafting the Civil Code, which will be the most significant reform in the field of civil law since its independence in 1991. This reform is expected to include important amendments of the family law, including the regulation of the exercise of parental responsibilities after divorce. The authors in this article make a thorough analysis of the current legal framework in regard to the exercise of parental responsibilities after divorce in the Republic of North Macedonia (RNM). Their main purpose is to detect all legal solutions that are outdated and lead to a serious violation of the rights and interests of children. In the text, the authors provide an overview of the historical development of the legal regulation of the exercise of parental responsibilities after divorce, as well as an analysis of sociological research related to the consequences of divorce on the psychosocial development of children. In addition, the authors provide an overview of research on the impact of joint physical custody on children after divorce. Taking into consideration the importance of the best interest of the children, this article aims to point out the positive effect of joint physical custody on children. In the conclusion, the authors provide recommendations aiming towards a better regulation of the exercise of parental responsibilities after divorce in the new Civil Code of RNM which is now being drafted.
{"title":"Parental Responsibility after Divorce: the Case of North Macedonia","authors":"Dejan Mickovik, Arta Selmani-Bakiu","doi":"10.1093/lawfam/ebab018","DOIUrl":"https://doi.org/10.1093/lawfam/ebab018","url":null,"abstract":"\u0000 In 2010 the Republic of North Macedonia began the process of drafting the Civil Code, which will be the most significant reform in the field of civil law since its independence in 1991. This reform is expected to include important amendments of the family law, including the regulation of the exercise of parental responsibilities after divorce. The authors in this article make a thorough analysis of the current legal framework in regard to the exercise of parental responsibilities after divorce in the Republic of North Macedonia (RNM). Their main purpose is to detect all legal solutions that are outdated and lead to a serious violation of the rights and interests of children. In the text, the authors provide an overview of the historical development of the legal regulation of the exercise of parental responsibilities after divorce, as well as an analysis of sociological research related to the consequences of divorce on the psychosocial development of children. In addition, the authors provide an overview of research on the impact of joint physical custody on children after divorce. Taking into consideration the importance of the best interest of the children, this article aims to point out the positive effect of joint physical custody on children. In the conclusion, the authors provide recommendations aiming towards a better regulation of the exercise of parental responsibilities after divorce in the new Civil Code of RNM which is now being drafted.","PeriodicalId":51869,"journal":{"name":"International Journal of Law Policy and the Family","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46878468","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Following the enactment of the Marriage (Same Sex Couples) Act 2013, same-sex couples in England and Wales have the same opportunities as different-sex couples to marry by way of a civil ceremony. However, same-sex couples who wish to marry by way of a religious ceremony are at a significant disadvantage to different-sex couples because only a small number of religious organisations, and a tiny number of places of worship, permit same-sex marriage. Drawing on semi-structured interviews, this article provides the first analysis of the experiences of same-sex couples who have married in a certified place of worship that has been registered for same-sex marriage. We argue that these experiences are shaped in complex ways within an environment in which same-sex religious marriage is lawful but nevertheless difficult to access. The analysis examines the experiences of couples at different stages of the marriage process, including the decision to have a religious marriage, seeking a place of worship, and negotiating the form of the ceremony. We show how many couples, unable to marry within the religious traditions with which they are most familiar, are effectively ‘funnelled’ towards particular traditions about which they have little prior knowledge. The article offers a unique insight into how English marriage law sustains faith-based discrimination against same-sex couples, and how some couples are able to overcome this.
{"title":"The Experience of Religious Same-Sex Marriage in England and Wales: Understanding the Opportunities and Limits Created by the Marriage (Same Sex Couples) Act 2013","authors":"S. Falcetta, Paul Johnson, Robert M. Vanderbeck","doi":"10.1093/LAWFAM/EBAB003","DOIUrl":"https://doi.org/10.1093/LAWFAM/EBAB003","url":null,"abstract":"Following the enactment of the Marriage (Same Sex Couples) Act 2013, same-sex couples in England and Wales have the same opportunities as different-sex couples to marry by way of a civil ceremony. However, same-sex couples who wish to marry by way of a religious ceremony are at a significant disadvantage to different-sex couples because only a small number of religious organisations, and a tiny number of places of worship, permit same-sex marriage. Drawing on semi-structured interviews, this article provides the first analysis of the experiences of same-sex couples who have married in a certified place of worship that has been registered for same-sex marriage. We argue that these experiences are shaped in complex ways within an environment in which same-sex religious marriage is lawful but nevertheless difficult to access. The analysis examines the experiences of couples at different stages of the marriage process, including the decision to have a religious marriage, seeking a place of worship, and negotiating the form of the ceremony. We show how many couples, unable to marry within the religious traditions with which they are most familiar, are effectively ‘funnelled’ towards particular traditions about which they have little prior knowledge. The article offers a unique insight into how English marriage law sustains faith-based discrimination against same-sex couples, and how some couples are able to overcome this.","PeriodicalId":51869,"journal":{"name":"International Journal of Law Policy and the Family","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/LAWFAM/EBAB003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41381131","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Safeguarding Children’s Rights in Immigration Law, Klaassen, M., Rap, S., Rodrigues, P. & Liefaard, T","authors":"S. Lembrechts","doi":"10.1093/lawfam/ebaa016","DOIUrl":"https://doi.org/10.1093/lawfam/ebaa016","url":null,"abstract":"","PeriodicalId":51869,"journal":{"name":"International Journal of Law Policy and the Family","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44956773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is widely recognized that the 1980 Hague Convention on the Civil Aspects of International Child Abduction ('the Convention') is invoked in types of cases which were not envisioned by the drafters and which might not naturally be classified as abduction cases. This article provides detailed consideration of one such type of case, which will be referred to as "re-relocation disputes." Such disputes arise when, following a temporary/ conditional move or a recent permanent move to a 'new' country, one parent wishes to return to the 'base' country', while the other insists on staying in the new country. The purpose of this article is to consider the impact and policy implications of using the Convention's mandatory return mechanism to resolve these disputes. Reframing these situations as re-relocation disputes facilitates analysis of the phenomenon from a broader perspective, including consideration of tools designed to create certainty and to produce result consistent with policy objectives. This discussion is particularly timely in the light of global jurisprudential developments over the last few years in relation to the test for determining the child's habitual residence and the implications of the recent decision of the English Court of Appeal in the case of Re NY[2019]UKSC 49 for consensual removals or retentions.
{"title":"The Hague Child Abduction Convention and Re-relocation Disputes","authors":"R. Schuz","doi":"10.1093/LAWFAM/EBAA021","DOIUrl":"https://doi.org/10.1093/LAWFAM/EBAA021","url":null,"abstract":"\u0000 It is widely recognized that the 1980 Hague Convention on the Civil Aspects of International Child Abduction ('the Convention') is invoked in types of cases which were not envisioned by the drafters and which might not naturally be classified as abduction cases. This article provides detailed consideration of one such type of case, which will be referred to as \"re-relocation disputes.\" Such disputes arise when, following a temporary/ conditional move or a recent permanent move to a 'new' country, one parent wishes to return to the 'base' country', while the other insists on staying in the new country. The purpose of this article is to consider the impact and policy implications of using the Convention's mandatory return mechanism to resolve these disputes. Reframing these situations as re-relocation disputes facilitates analysis of the phenomenon from a broader perspective, including consideration of tools designed to create certainty and to produce result consistent with policy objectives. This discussion is particularly timely in the light of global jurisprudential developments over the last few years in relation to the test for determining the child's habitual residence and the implications of the recent decision of the English Court of Appeal in the case of Re NY[2019]UKSC 49 for consensual removals or retentions.","PeriodicalId":51869,"journal":{"name":"International Journal of Law Policy and the Family","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/LAWFAM/EBAA021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43542192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Children’s Rights—the Convention on the Rights of the Child in Danish Law, edited by Trine Schultz, Anne Mørk and Hanne Hartoft, Djøf Forlag","authors":"Pernilla Leviner","doi":"10.1093/LAWFAM/EBAA020","DOIUrl":"https://doi.org/10.1093/LAWFAM/EBAA020","url":null,"abstract":"","PeriodicalId":51869,"journal":{"name":"International Journal of Law Policy and the Family","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43596561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There are two roads to divorce in China. One is registered divorce, the other is litigation divorce. When both parties have reached an agreement on whether to divorce, how to divide their common property, and raise children if necessary, they can apply for a registered divorce in a relevant authority. Before the promulgation of China’s Civil Code, both parties, with necessary personal certificates and a divorce agreement, could successfully register their divorce within an hour in the marriage registration authority with jurisdiction. Although a 1-month cooling-off period has been set up in the Civil Code, divorce petitioners can register their divorce on the first day of the second month after the cooling...
{"title":"Divorce in China: Institutional Constraints and Gendered Outcomes, Xin He","authors":"Lei Shi","doi":"10.1093/lawfam/ebab027","DOIUrl":"https://doi.org/10.1093/lawfam/ebab027","url":null,"abstract":"There are two roads to divorce in China. One is registered divorce, the other is litigation divorce. When both parties have reached an agreement on whether to divorce, how to divide their common property, and raise children if necessary, they can apply for a registered divorce in a relevant authority. Before the promulgation of China’s Civil Code, both parties, with necessary personal certificates and a divorce agreement, could successfully register their divorce within an hour in the marriage registration authority with jurisdiction. Although a 1-month cooling-off period has been set up in the Civil Code, divorce petitioners can register their divorce on the first day of the second month after the cooling...","PeriodicalId":51869,"journal":{"name":"International Journal of Law Policy and the Family","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44541189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"We Are Family: What Really Matters for Parents and Children, by Susan Golombok","authors":"A. Margaria","doi":"10.1093/lawfam/ebab007","DOIUrl":"https://doi.org/10.1093/lawfam/ebab007","url":null,"abstract":"","PeriodicalId":51869,"journal":{"name":"International Journal of Law Policy and the Family","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2021-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46346107","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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