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.
Currently, the term “family law” is an almost oxymoronic fusion between the situs of emotion and love on the one hand and duties and rights on the other. This was not always the case. Only a century ago, the family unit was considered the nuclear building block of society and very relevant to the law. But over time, new principles were adopted and old ones discarded. Changes such as the rise of autonomy, individualism within the family, and the best interest of the child have altered the center of gravity within the field.
Despite these changes, for the most part, the understanding of “the family” as a matter for law and adjudication has remained broadly accepted and even desired. This Paper discusses the extent to which changes in Western family law and practice have pushed the law away from “the family.” While some legal debates over the definition of “the family” and familial relationships (who is a parent, who is a spouse, what rights, if any, do grandparents have, etc.) still invite broad legal intervention, others might not.
This Paper examines these changes through the lens of a typical family law case, composed of three main familial disputes: spousal relations, parental relations, and marital property. Analyzing these three issues, this Paper argues that in the first two matters, family considerations overshadow the law to the point that they no longer pose real legal issues requiring court decisions. In contrast, the third issue demonstrates a modern compromise between the family and the law. It affords more room to civil law considerations by balancing them with family needs. The Paper substantiates this argument by contrasting traditional and current attitudes towards these matters, as well as by addressing their regulation in different legal systems.
The Paper does not purport to offer a comprehensive comparative review, but rather, it demonstrates the prevalence of the phenomenon discussed. Though no one legal system is discussed in detail, the findings of this Paper are generally relevant to all Western legal systems. Further, since the Paper is restricted to only three familial matters, it makes no statement regarding family law as a whole. Instead, it calls attention to changes to several core family law issues and suggests that these changes warrant a reconsideration as to how “the family” and the law interact.