Hybrid journal (It can contain Open Access articles) ISSN (Print) 1360-9939 - ISSN (Online) 1464-3707 Published by Oxford University Press[406 journals]
Authors:Worugji I; Ndukwe O, Endeley I. Pages: 123 - 138 Abstract: This contribution is a response to the continued contention that single dissolution of a subsequent statutory marriage by the same parties does not terminate the preceding customary law marriage. The co-existence theorists argued that the two systems of marriage (customary law marriage and statutory marriage), though decked together, co-exist with independent rights and obligations; and that the subsequent statutory marriage does not convert the preceding customary law marriage into a monogamous marriage in spite of the Supreme Court’s pronouncements to the contrary in Okotie-Eboh’s case. They further maintained that the High Courts have no jurisdiction over customary law marriage issues, hence cannot provide the legal platform upon which the appellate courts could entertain the appeal in the above matter; and that so long as the bride price is not refunded by the woman to the erstwhile husband, the marriage remains in existence. An additional argument from the same theorists has it that the Supreme Court showed some inconsistencies and contradicted itself in Okotie-Eboh’s case. It is our submission that the contentions of the co-existence theorists are misplaced and places marriage outside its social relation context. The learned authors seem to express the marriage issues and divorce in particular in a simplistic way, thus losing its human relations content and contemporary realities under the present human rights regime and women’s rights in particular. We submit that the legal plank upon which the conversion approach rests and the fact of the dissolution of the subsequent statutory marriage brings the ‘double deck’ relationship to an end is correct. Any other interpretation short of automatic simultaneous dissolution in the face of the crisis of divorce will lack practical legal reasoning and social sustainability in contemporary society. The Supreme Court’s view in support of the conversion theory is, therefore, valid, correct and in accord with contemporary realities. PubDate: Fri, 04 Jan 2019 00:00:00 GMT DOI: 10.1093/lawfam/eby020 Issue No:Vol. 33, No. 1 (2019)
Authors:Doughty J; Meakings S, Shelton K. Pages: 1 - 23 Abstract: The rights of children who are adopted in England and Wales, their birth parents, siblings and extended family, and their adoptive parents are considered in this article. This includes the rights of parents and children regarding consent to adoption; their rights to post-adoption contact; children’s rights to develop an understanding of their identity as an adopted person; and adopters’ rights to support in helping their children – in the framework of domestic law and human rights conventions. The article draws on findings from the Wales Adoption Cohort Study to inform the discussion. This study included a case file study of 374 children’s adoption records, surveys of newly adoptive parents (96) and interviews with them (40). These findings included that, generally, adoptive parents had respect for the child’s previous family ties. Adopters had a positive attitude toward helping their children with contact (especially with siblings) and making sense of their identity, but often struggled with a lack of professional support. There was a tendency amongst agencies towards a blanket policy on indirect contact, rather than planning more flexible individual arrangements. PubDate: Fri, 28 Dec 2018 00:00:00 GMT DOI: 10.1093/lawfam/eby016 Issue No:Vol. 33, No. 1 (2018)
Authors:Hitchings E; Miles J. Pages: 24 - 50 Abstract: This article draws on data from a recent empirical study to examine the role of discretion in financial remedy cases on divorce, particularly in the ‘everyday’ needs-based cases that constitute the bulk of the caseload in England and Wales. It explores practitioner and judicial experiences and perceptions of the discretionary Matrimonial Causes Act 1973 regime to inform current debates about potential law reform in this area. In particular it provides findings on the issue of geographical variation in outcome as a lens through which to examine the rules versus discretion conundrum. The central argument made is that (i) the rules-discretion question is not a stark choice between opposites, but rather requires a decision about where along a spectrum between those poles to place a given legal regime; and (ii) the issue must be addressed in terms of both (a) substantive principle, where clarity and consistency about what the financial settlement should be seeking to achieve is vitally important, and (b) the law’s practical operation – the fashioning of particular packages of orders transferring value between the spouses – where greater discretion may be necessary to ensure fairness. PubDate: Fri, 28 Dec 2018 00:00:00 GMT DOI: 10.1093/lawfam/eby017 Issue No:Vol. 33, No. 1 (2018)
Authors:Hull K. Pages: 51 - 74 Abstract: This article uses in-depth interview data to examine the meanings of marriage for lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the US context. The politics of recognition and rights consciousness provide the theoretical frames for the study. The interview data indicate broad support for legal recognition of same-sex marriage among LGBTQ individuals, but more mixed views of marriage as a social institution and uneven personal aspirations to marry. Respondents fall into three broad categories: marriage-positive, marriage-ambivalent, and marriage-negative. The fact that LGBTQ respondents favour marriage more in principle (as a right) than in practice (as an actual social institution) suggests that marriage holds multiple meanings for them. I discuss these meanings in relation to the politics of recognition and the political effects of rights. I conclude that the tension between marriage in principle versus practice signals both a desire for recognition and a critical perspective on law. PubDate: Wed, 12 Dec 2018 00:00:00 GMT DOI: 10.1093/lawfam/eby018 Issue No:Vol. 33, No. 1 (2018)
Authors:Harada A. Pages: 75 - 103 Abstract: This article analyses the effectiveness of the Japanese court-annexed family conciliation mechanism in resolving divorce disputes involving conflicts pertaining to minor children, particularly child visitation, and discusses potential future directions for the family law system. Japanese family conciliation deals with many family disputes, including divorce disputes involving children. Although family courts have recently begun promoting more visitation agreements than in the past, they continue to face difficulties in facilitating workable agreements for families. An interview-based research project conducted by the author involving active conciliators revealed the unique strengths of conciliators’ efforts in supporting the involved parties, as well as the systemic limitations of family conciliations in effectively navigating parties undergoing family transition. The research found that such limitations are related to the lack of clear legal rules as a guiding norm for negotiations between divorcing parents. This finding leads to the question of how we should develop legal norms for visitation and post-divorce family relationships. The author draws two possible scenarios and argues that both raise difficult questions that should be answered using knowledge acquired from social science research about the reality of current family relationships and the daily functioning of family law systems, including family conciliation. PubDate: Thu, 27 Dec 2018 00:00:00 GMT DOI: 10.1093/lawfam/eby019 Issue No:Vol. 33, No. 1 (2018)
Authors:Ní Shúilleabháin M. Pages: 104 - 122 Abstract: Contracting States of the European Convention on Human Rights (ECHR) are bound to secure the rights guaranteed by the Convention. Article 8 ECHR, which guarantees the right to respect for private and family life, has been interpreted as importing extensive obligations to recognize parent–child relationships created through overseas surrogacy arrangements. These ECHR obligations (first articulated in 2014) signify an acceleration in the privatization of family law and in the legitimatization of system shopping. While the EU institutions had previously indicated a willingness to accommodate party autonomy and system shopping in its private international law instruments, these accommodations were carefully calibrated, in particular where children were concerned. This article critiques the Article 8 ECHR jurisprudence on international commercial surrogacy and the role of the child’s ‘best interests’. It questions the desirability of the Strasbourg Court’s interventions in a domain where human rights considerations are so conflicted. It is argued that the European Court of Human Rights (ECtHR) has facilitated untrammelled system shopping in a very sensitive field of child law, and has dismantled domestic legislative choices, without providing a convincing alternative analysis. PubDate: Mon, 17 Dec 2018 00:00:00 GMT DOI: 10.1093/lawfam/eby021 Issue No:Vol. 33, No. 1 (2018)
Hybrid journal (It can contain Open Access articles)
[406 journals]
