Tuesday, March 27, 2018
Congratulations on your engagement! Now, let’s talk about divorce.
I know, I know. This is a time for celebration and excitement, not pragmatic pessimism. Right now you want to plan the cake (vanilla buttercream, if I get a vote), not a hypothetical division of assets. I get it, I do. But give me three minutes to try to persuade you (I do that for a living) that talking about divorce, right now, is the most romantic, committed thing you and your fiancé could be doing.
Brenda Cossman & Bruce Ryder have posted Beyond Beyond Conjugality, (2017) 30(2) Canadian Journal of Family Law 227-263. Here is the abstract:
In 2001, the Law Commission of Canada released its report Beyond Conjugality: Recognizing and Supporting Close Adult Relationships. The Report questioned whether marriage and conjugality should have any relevance as legal categories, and considered whether the state should get out of the business of regulating marriage altogether. The Report advocated a systematic rethinking of the way in which close adult relationships are regulated and recognized. In particular, it argued that conjugality - long used as the criteria for recognizing and regulating relationships - is ill-suited to achieving governmental policy objectives. The Beyond Conjugality report has been extensively debated and cited in the past fifteen years. Even though it is too early, from the Law Commission’s long-term perspective, to come up with a final assessment of the success of the Beyond Conjugality report, our paper assesses its impact on scholarly and political debates thus far. We consider whether the assumptions and methodology underlying the report remain valuable. By stopping short of recommending that the state cease to regulate marriage altogether, and by not recommending the repeal of conjugal offences such as polygamy, did the report not go far enough? With the benefits of hindsight, would we write the Report differently now? To what extent did the recognition of same sex marriage in Canada in 2005 limit further reconsideration of adult personal relationships? Is the model of conjugality that the Report criticized more entrenched today? Is there a way that we would write the report differently today that would give further political and legal resonance to alternatives to conjugality? Specifically, how might we have better looked beyond the dyadic couple to consider multiple party relationships as well?
Monday, March 26, 2018
Erez Aloni has posted to SSRN The Marital Wealth Gap, Washington Law Review, Vol. 93, 2018. Here is the abstract:
Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata.
How can the state restructure the law to alleviate the marital wealth gap? The Article proposes a fundamental shift in the way the state treats wealth and family status. It advances a theory grounded in transformative “recognition and redistribution” that decentralizes marriage’s monopoly on wealth-related benefits and simultaneously aims to reduce wealth concentration among the richest households. Principally, since marriage is the preserve of the well-off, the state should decouple wealth benefits from marriage. At the same time, it should combat the structures that enable wealth concentration among affluent married couples, thereby dismantling the architecture that supports the marital wealth gap.
From ABC News:
A child-custody case in Florida has erupted into a battle between state officials and a Native American tribe after a couple complained that their newborn was snatched from a hospital by tribal police based on bogus accusations made by the grandmother, who allegedly does not like the father because he's white.
Rebecca Sanders, a member of the Miccosukee tribe, and Justin Johnson say tribal police came to Baptist Hospital in Kendall, Florida, and took their baby girl, Ingrid Ronan Johnson, two days after her birth on March 16.
A tribal judge granted custody of the baby and Sanders' two other children to Sanders' mother, Betty Osceola.
Read more here.
Adekile: "Towards the Development of a Marital Property Regime for Nigeria: A Case for Socio-Legal Research for Gender Justice"
Oluwakemi Mary Adekile has posted to SSRN Towards the Development of a Marital Property Regime for Nigeria: A Case for Socio-Legal Research for Gender Justice. Here is the abstract:
This work interrogates research needs for the development of marital property rights in Nigeria and raises the question of whether there shouldn’t be a move into socio-legal investigations of social norms through family market research with a view for law to internalize family realities. It is an effort to stimulate a different approach to imperative legal reform. It suggests that doctrinal legal research may not be adequate to provide an acceptable inclusive marital property regime. Socio-legal research might help Nigerian law reflect the de facto financial/property arrangements in marriage. The objective is to move questions and concerns of property rights from doctrinal content analysis into quantitative empirical evaluation. It argues that social dialogue and family market research into the developmental implications of the absence of a cohesive property regime in Nigeria and the form of legal intervention in a culturally and religiously diversified society is needed. The research finds while culture and customary laws recognize separate property rights and no spousal interests, modern legal systems including human rights regimes and national laws stipulate equality of rights in marriage. Without empirical social-legal research which documents marriage and social realities through family market research there will continue to be a gap between the law in the books and the law in practice. The paper concludes that culture and gendered definitions of the division of marital work are limiting factors to the scope of property rights, but the dynamism of culture is a call for its constant interrogation.
Sunday, March 25, 2018
Hunter: "Varieties of Constitutional Experience: Direct Democracy and the Marriage Equality Campaign"
Nan D. Hunter has posted to SSRN Varieties of Constitutional Experience: Direct Democracy and the Marriage Equality Campaign, UCLA Law Review, Forthcoming. Here is the abstract:
Beginning in the 1970s, the overwhelming success of anti-gay ballot questions made direct democracy the most powerful bête noire of the LGBT rights movement. It is thus deeply ironic that, more than any other factor, an electoral politics-style campaign led to the national mandate for marriage equality announced by the Supreme Court in Obergefell v. Hodges. This occurred because marriage equality advocates set out to change social and constitutional meanings not primarily through courts or legislatures, but with a strategy designed to win over moveable middle voters in ballot question elections. Successful pro-gay litigation arguments, followed by supportive reasoning in judicial victories, grew directly out of the messaging frames that tested best with voters. A new variation on popular constitutionalism was born.
The lawyers who led the marriage equality campaign succeeded by decentering litigation until after opinion polls registered majority support for allowing same-sex marriage. In developing and implementing this strategy, they were assisted by professionals skilled in communications research and enabled by large-scale, coordinated funding. These dimensions of the marriage equality effort both validate and contradict much of the law and society scholarship predicting that court-centered rights discourse will inevitably dominate law reform campaigns.
In this Article, I argue that the same-sex marriage campaign is likely to foreshadow sophisticated social change efforts in the future that look less like traditional impact litigation strategies and more like social marketing campaigns, one component of which may be constitutional interpretation. Whether this model has major potential for significantly progressive change will turn on its effectiveness for issues that involve claims for redistribution of material resources or greater openness in governance, challenges with which the marriage equality effort was not forced to engage.
In the marriage campaign, voter-tested messaging led to two major discursive innovations. The first was the jettisoning of rights arguments in favor of storytelling models that were grounded in emotions rather than rights. Advocates stopped enumerating the legal benefits of marriage and talked more about the bonds of commitment exemplified by same-sex couples. Second, ballot question campaign ads increasingly featured the construction of a storytelling arc centered on how opposition to same-sex marriage of older or more conservative voters could morph into acceptance (even if not endorsement) of it. These narratives guided conflicted, moveable middle voters (and others) along a path toward a different sense of moral awareness about homosexuality and same-sex marriage than the manichean version of morality arguments used by conservatives. The new approaches were calibrated, tested, and refined for particular audiences, producing empirical evidence to support a new addition to the language of law: data-driven arguments.
The most significant limitations of this approach operated at the level of social and constitutional meanings. Several discursive pivot points that emerged from the messaging strategy led to the shrinkage of what might have been greater emphasis on the pluralism of family forms as the foundation for equality and liberty in the realm of personal relationships.
- The shift from an equality frame based on analogies to other social minorities to a universalized sameness approach;
- The shift from an emphasis on the material consequences of being denied access to the legal incidents of marriage to an emphasis on commitment, child raising, and the relational and emotional motivations for wanting to marry; and
- The avoidance of arguments for “expanding” or “changing” marriage and the stress of the desire for “joining” marriage.
This new frame reassured moderate voters and judges that the traditional norms and practices associated with marriage were not being threatened, producing a kind of cultural interest conversion. This was brought about through a discourse that was mined from the rhetoric of popular constitutionalism but suffused with the resonance of respectability.
Saturday, March 24, 2018
Witte: " The Nature of Family in Seventeenth-Century Liberal Protestant Thought: Hugo Grotius and John Selden"
John Witte has posted to SSRN The Nature of Family in Seventeenth-Century Liberal Protestant Thought: Hugo Grotius and John Selden, University of Illinois Law Review (2017): 1947-1969. Here is the abstract:
Our contemporary debates about the nature of sex, marriage, and family life are not new. A half millennium ago, the Protestant Reformation set off a comparably tumultuous sexual revolution that bitterly divided the Catholic and Protestant worlds. Over the next century, jurists and theologians used various natural lawtheories to develop a common foundation for Western family law. In this Essay, I sample the writings of Dutch jurist Hugo Grotius (1583-1645) and English jurist John Selden (1684-1654) — two leading Protestant natural law theorists whose seminal writings helped to shape the Continental civil law and the Anglo-American common law traditions respectively. These two scholarly giants knew and respected each other, but they differed on their approach to natural law and its applications to family law and other legal questions. Grotius based his theory of natural law on rational self-evidence — the rational inferences that can be drawn from human intuition and inclinations, common experiences and customs, and the nature of human sexuality and interaction. Selden based his theory of natural law on primeval divine commands, whose principles and precepts were worked out by great legal traditions with enlightened leadership, most notably by the Jewish tradition. Despite these different starting points and accents, both Grotius and Selden embraced a good number of traditional teachings on sex, marriage, and family life, albeit with non-traditional methods and rationales.
Friday, March 23, 2018
Fernando & Ross: "Stifled Voices: Hearing Children's Objections in Hague Child Abduction Convention Cases in Australia"
Michelle Fernando & Nicola M. Ross have posted to SSRN Stifled Voices: Hearing Children's Objections in Hague Child Abduction Convention Cases in Australia, (2018) 32(1) International Journal of Law, Policy and the Family. Here is the abstract:
In 2012, four Italian children unlawfully retained in Australia by their mother were sent back to Italy, even though they had been in Australia for over 2 years, all four objected to being returned and the two elder children were aged 12 and 14 years at the time of the first hearing. The High Court of Australia ruled that the children had been afforded natural justice and that their views had been appropriately heard and considered, despite the children not having had legal representation or the opportunity to express their views directly. This article examines the meaning and operation of the ‘children’s objection’ exception to a mandatory return order made in Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. While the general rule is that children unlawfully taken from their home country by a parent must be returned, Article 13 gives a court discretion to refuse to return a child if the child objects and is of sufficient age and maturity. In Australia, the child’s objection must also show a ‘strength of feeling’ beyond a mere preference or ordinary wishes. The authors discuss the limitations of the current procedures for hearing children’s objections in light of the child’s right to be heard pursuant to Article 12 of the United Nations Convention on the Rights of the Child, and advocate greater use of Independent Children’s Lawyers and meetings between children and judges in Hague Convention cases.
Courtney G. Joslin has posted to SSRN Nurturing Parenthood Through the UPA (2017), 127 Yale Law Journal Forum 589 (2018). Here is the abstract:
Same-sex couples now have the right to marry throughout the country. Douglas NeJaime’s insightful article carefully explains how LGBT parent-families remain vulnerable despite this important development. NeJaime demonstrates that while the law recognizes nonbiological parentage, it does so in asymmetrical ways that “reflect and perpetuate inequality based on gender and sexual orientation.” These asymmetries harm the adults and the children in these families, and violate core constitutional mandates.
This Response shows how the recently approved revisions to the Uniform Parentage Act (UPA)—UPA (2017)—address many of the critical gaps in parentage law identified by NeJaime. The UPA (2017) expands the ways in which a nonbiological parent may establish her or his parentage. The Act carries over the longstanding holding-out provision, but revises it so that it applies equally to men and women. The UPA (2017) also adds a new provision on de facto parents, under which someone who has been acting as a parent can legally establish his or her parentage, and expands the classes of people who can establish parentage through the voluntary acknowledgment process. The Act also updates the assisted reproductive technology (ART) provisions to permit individuals of any gender to establish their parentage based on proper consent to the ART procedure.
In addition, the UPA (2017) removes many gender-based distinctions that long have shaped parentage law. In so doing, the UPA (2017) helps states bring their parentage statutes into compliance with the Supreme Court’s decisions in Obergefell v. Hodges, Pavan v. Smith, and Sessions v. Morales-Santana. These Supreme Court decisions make clear that family law provisions that discriminate on the basis of gender or sexual orientation may be constitutionally suspect.
By adopting the UPA (2017) and making these changes, states can reform parentage law to more evenhandedly protect all parent-child relationships.
Thursday, March 22, 2018
Carbone & Madeira: "The Role of Agency: Compensated Surrogacy and the Institutionalization of Assisted Reproduction Practices"
June Carbone & Jody Lynee Madeira have posted to SSRN: The Role of Agency: Compensated Surrogacy and the Institutionalization of Assisted Reproduction Practices, Washington Law Review, Vol. 90, No. 7, 2015. Here is the abstract:
The surrogacy debate often conflates what should be seen as three distinct issues: the permissibility of the practice under any circumstances, the role of for-profit intermediaries in arranging surrogacy, and the role of compensation in influencing decision-making. For those who see surrogacy as intrinsically objectionable, nothing short of a total ban will suffice. For those who object to the commodification of reproduction or to the role of for-profit agencies in recruiting surrogates, however, the solutions lie in regulation rather than prohibition. Commercial agencies, unlike infertile couples who enter into arrangements with their friends and relatives, are repeat players. They are in a better position to institutionalize appropriate practices and instantiate acceptable norms than are parties driven by the desire to produce a child. We conclude that much of the objection to commercial surrogacy involves the practice’s growing pains. In the end, commercial agencies, particularly if they are subject to regulations that require transparency and provide oversight, may promote human dignity as well as, or better than, individually negotiated altruistic arrangements.
Margaret Ryznar has posted to SSRN Alimony in Tax Reform, Tax Notes, Vol. 157, No. 11, pp. 1629-1631, December 2017. Here is the abstract:
The proposed changes to the current tax treatment of alimony do not take family law into account and would have the unintended effect of reducing alimony transfers. Although the current tax treatment of alimony has a substantial influence over matters of family law, its impact on the public fisc is small. If the goal of the proposed modifications is to preserve revenue, enforcement of section 71 is a better approach than denying special tax treatment to alimony.
From New Haven Register:
No one can say with 100% certainty that a couple is heading for disaster.
But social scientists have gotten pretty good at predicting who's most likely to wind up there. These couples share certain commonalities — in the way they fight and the way they describe their relationship, but also in their education level and employment status.
Below, we've rounded up seven factors that predict divorce.
Read them here.
Wednesday, March 21, 2018
From Courthouse News Service:
The Supreme Court appeared unlikely Monday to strike down a Minnesota law that keeps people from collecting on their exes’ life-insurance policies.
Minnesota enacted the statute at issue in 2002 to address the tendency of couples unintentionally failing to update such documents after a divorce.
At a hearing on the law Monday, the Supreme Court noted that some people very well may prefer to keep former spouses as the beneficiaries of their life insurance policies, even after getting divorced. Justice Elena Kagan noted, however, that the Minnesota Legislature might be owed deference after using its judgment to finding that isn’t typically the case.
“If you’re saying really we look to the broad class of people, why shouldn’t we make the same judgment that the Legislature made, or at least accept that judgment, that if we look to the broad class of people, most of them would rather give their life insurance policy to their children than to their divorced spouse?” Kagan asked on Monday.
Read more here.
The Wisconsin State Senate has given the green light to 'Sara's Law' Tuesday night. Supporters say the bill, named after Sara Quirt Sann, one of four people killed in the March 22nd shootings in Weston, is designed to better protect family lawyers.
Read more here.
Lucinda Ferguson & Elizabeth Brake have posted to SSRN Introduction: The Importance of Theory to Children's and Family Law, in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children's and Family Law (OUP 2018). Here is the abstract:
What defines family law? Is it an area of law with clean boundaries and unified distinguishing characteristics, or an untidy grouping of disparate rules and doctrines? What values or principles should guide it – and how could it be improved? Indeed, even the scope of family law is contested. Whilst some law schools and textbooks separate family law from children’s law, this is invariably effected without asking what might be gained or lost from treating them together or separately. Should family law and children’s law be distinguished or treated together?
One would expect disagreement on these questions in any context. In bringing together theorists from multiple jurisdictions and at least two primary disciplines, we should not be surprised to find deep differences in approach reflecting different methodologies and foundational questions. The tension between them, we hope, can illuminate and enrich discussion on all sides. Further, through combining insights from law and philosophy, we also intend to add another layer to the current trend to focus on the empirical in family lawresearch, and highlight how critical debates in children’s and family law are at once theoretical and empirical in nature. Understanding the nature and content of a child’s “best interests” as contained in multiple jurisdictions’ legal frameworks regulating private and/or public law concerning children, for example, requires us to approach the matter both conceptually – in order to adjudicate between frameworks – and in terms of fit with evidence from research. This immediately makes any satisfactory resolution more uncertain, contested, and subject to criticism. It is in this context that we hope that the conversations between law and philosophy, their points of agreement and divergence, can advance stalled debates.
International differences correspond, of course, to differences in law, policy, and procedure. Contrast, for example, England and Wales’ ‘single pot’ approach to the distribution of property and maintenance upon marriage breakdown to the more common, “pillarised” treatment of matrimonial property, pensions, and maintenance. The difference in system design necessarily affects the available potential justifications. As a more nuanced aspect of the impact of system design, one might consider the normative difficulties created by the variation in default regimes adopted in relation to matrimonial (or marital) property between US states. Facing jurisdictional differences – like considering historical changes within one’s own jurisdiction – can yield an awareness of the context-specificity of one’s own starting points. And awareness of how things are done differently can lead us to call into question our own ways of doing things. Such awareness might alert us to unintended consequences of legislation or to innovative solutions. And, more fundamentally, it might cause us to interrogate what we take as the core, the normal, or even the natural. This is where philosophical investigation becomes indispensable.
In Section II, we outline a number of respects in which the approaches taken by (academic) lawyers and philosophers writing in this field tend to differ, as well as how the structure of this collection seeks to cut across and highlight both these divergences and shared accounts. In Section III, we introduce the key themes that underpin the collection, which demonstrate the potential for cross-fertilisation between legal contexts as well as between legal and philosophical perspectives. When we refer to ‘lawyers’ and ‘philosophers’, we have in mind those working in family law and children’s law in particular.
Mothers in Saudi Arabia can now retain custody of their children after divorce without filing lawsuits, according to a Saudi Information Ministry statement Monday, meaning the kingdom is breaking ranks with several other countries in the region that heavily favor male guardianship.
Tuesday, March 20, 2018
From BBC News:
The Philippines' lower house of Congress has passed a divorce bill on the third reading, moving the country closer to legalisation.
The bill passed despite opposition from President Rodrigo Duterte, who had his own marriage legally annulled.
However, for divorce to become legal the Senate also has to pass a bill in favour, and even then Mr Duterte could still use his veto to strike it down.
Read more here.
Oluwakemi Mary Adekile has posted Human Rights Dimensions of Family Disputes Resolution, Essays in Honour of Prof Ogungbe (2017 ed. by Prof Sesan Oluyide). Here is the abstract:
Disputes in marriage have moved from localized to globalized standards in the face of human rights norms. Situated within international, regional and national legal systems, which are often pluralized, these human rights standards demand equality rights and non discrimination as well as the best interests of the child in the resolution of marital disputes, in sharp contrast with the traditional utilitarian mold which has the goal of preserving entrenched community, patriarchal, and religious interests. Drawing inspiration from different jurisdictions, this work investigates the gap between human rights standards and these traditional molds in disputes on access to divorce, property rights (maintenance, settlement of property, division of property) and custody of children. It finds that whilst formal equality and non discrimination is in positive law, substantial equality is still a far cry. It highlights State obligations in human rights standards towards the attainment of the goal of transformative justice. It concludes that since laws, religion and customs affirm discrimination and inequality most eloquently in marital disputes, human rights standards demand positive actions by State Parties towards the realization of justice.
Clare Huntington recently posted to SSRN The Empirical Turn in Family Law, Columbia Law Review, Vol. 118, No. 227, 2018. Here is the abstract:
Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families.
There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more fundamental problems: Using empirical evidence focuses attention on the outcomes of legal rules, discouraging a debate about contested and competing values. Reliance on empirical evidence overlays a veneer of neutrality on normative judgments. And uncritically adopting evidence about present conditions without interrogating the role of historical discrimination that continues to disadvantage some families can replicate that discrimination.
Given the promise and peril of the empirical turn in family law, this Essay proposes a framework to guide the use of this evidence. The framework preserves space for debating multiple values and advises decisionmakers when to use empirical evidence, with particular attention to the dangers for nondominant families. The framework also recommends strengthening evidentiary gatekeeping and elevating the potential for legal scholarship to serve as a bridge from the broader research base to the courts. With this guidance in place, empirical evidence can take its rightful place as a useful but cabined tool in the legal regulation of families.