The Outlawed Family: How Relevant is the Law in Family Litigation?

Abstract

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 – that of divorce. Divorce cases are composed of three sub-cases: 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, do courts and legal rules decide family disputes. It argues that with the rise of personal considerations such as autonomy and best interest of the child, the law has become almost irrelevant to divorce, and 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, the law manages to merge family-related considerations with 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 re-consideration of the regulation of these issues.

Keywords: family law, divorce, custody, matrimonial property, law and social change, family litigation, comparative family law