Family Law Exceptionalism in Comparative Law

Today, family law is, to a surprising degree, at the center of comparative law inquiries committed to legal unification. Comparative family law projects range from analyzing convergence and harmonization proposals in the West, to law and development schemes in the rest of the world. The most salient reforms of abortion, same-sex marriage, transsexual, and adoption rights are increasingly promoted at the transnational level through international human rights and antidiscrimination principles. Regional and international human rights tribunals in Europe and Latin America are called upon to interpret the right to family life, non-discrimination, and freedom of movement principles to redefine the contours of domestic family, immigration, and employment law regimes. While comparative lawyers are increasingly involved in shaping these transnational family law regimes, they present their choices as reflecting objective scientific knowledge that they have acquired through the comparative law method. This consensus about a single comparative law method is troubling because it allows comparison between abstract family law regimes that bear little relevance to what happens in practice or to the proposal of a “best” family law regime for unification purposes, while obscuring the political and economic implications of adopting one particular family law regime over another. Since the early 1900s, however, two conflicting methodologies have characterized the work of Western comparative lawyers addressing the family: social-purpose and positive-sociology functionalism. These Western comparative lawyers separated the individualist and universal sphere of the market from the altruistic, organic, and traditional sphere of the family. Because of this market/family dichotomy, family law was marginalized by those interested in the harmonization of the market, while the family remained, by contrast, central to the work of those interested in legal pluralism. Today, the reproduction, and subversion, of the family/market dichotomy has lead toward methodological agreement over social-purpose functionalism for projects committed to unification, convergence, and harmonization of Western family law. In contrast, and in order to address some of the pressing questions arising in comparative family law, I suggest revamping positive-sociology functionalism, especially for those projects committed to the harmonization of European family law. By explaining the meaning of family law exceptionalism in comparative law, my goal is to make explicit the family/market dichotomy so that lawyers will openly assess the economic consequences of family law reforms on the household and the market

Contracting out Rules for Family Income Sharing Arrangements: Providing Certainty and Protecting the Vulnerable

Despite equal division of assets at the end of a relationship, residual economic disparity often remains. This is especially common when one partner has left the workforce to care for children. Addressing such divergent economic prospects at the end of long-term relationships has been a perennial policy challenge. In 2019, the Law Commission completed its review of the Property (Relationships) Act 1976 (PRA). The Commission recommended replacing the current economic disparity compensation and maintenance regimes with an income pooling mechanism: Family Income Sharing Arrangements (FISAs). It also recommended that couples be able to contract out of FISAs. This article explores the rationale for changing the current regime and the conceptual underpinnings of the proposed FISA regime, using human capital as a framework. The article proposes a detailed policy regime for FISA contracting out. The proposed rules consider the needs of couples with children, where a partner has left the labour force, or where lived reality has not met the couple's ex ante expectations. The resulting rules meet the policy goal of allowing couples to contract out of FISAs, but only where their contract causes no hardship. Additional disclosure is also recommended for contracting out of the other provisions of the PRA, with greater deference recommended for such private arrangements as a result

International Human Rights Law, Co-parent Adoption, and the Recognition of Gay and Lesbian Families

Children would benefit substantially if governments legally recognized same sex marriages and parenting. This article analyzes international human rights law, co-parent adoption, and the legal recognition of gay and lesbian families. It addresses civil marriage and adoption challenges for same sex families and assesses European Court of Human Rights jurisprudence relating to same-sex adoption. This Article considers the international community\u27s efforts to implement the best interest of the child standard concluding that recognition of same sex families is in the best interest of the child and should be facilitated in a timely manner by jurisdictions at all levels

Default matrimonial property regimes and the Principles of European Family Law – A European-South African comparison: Part 2

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