The involvement of the law in the family is generally considered inevitable and desirable. The family is often depicted as the locus of important and delicate problems, which demand legal intervention through designated tools commonly referred to as “family law.” This Paper questions the veracity of this depiction with regards to the paradigmatic family dispute—divorce. Divorce cases are composed of three sub-cases: the divorce itself (i.e., the legal separation of the parties), child custody, and the division of property. The Paper examines whether, and to what extent, courts and legal rules decide family disputes. It argues that, with the rise of personal considerations such as autonomy and the best interest of the child, the law has become almost irrelevant to divorce and that courts currently have little substantive influence over custody disputes. The diminishing importance of the law in these contexts is particularly striking when compared to the reality of matrimonial property issues. Family law addresses familial considerations, legal norms, and judicial procedures. Based on the shortcomings this Paper identifies in the regulation of divorce and child custody, namely the gap between the perceived and actual regulation of these matters, this Paper calls for reconsideration of the regulation of these issues.
The-Outlawed-Family_-How-Relevant-is-the-Law-in-Family-Litigation