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1946 results in Family Law

Page 41 of 98

  • Poland Supporting Elderly Persons in Polish Family and Succession Law

    • By Małgorzata Balwicka-Szczyrba, Professor of Law, Faculty of Law and Administration, Department of Civil Law, University of Gdańsk, Poland, Anna Sylwestrzak, Professor of Law, Faculty of Law and Administration, Department of Civil Law, University of Gdańsk, Poland, Marcin Glicz, Assistant Professor, Faculty of Law and Administration, Department of Civil Law, University of Warmia and Mazury in Olsztyn, Poland
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 425-440

  • Summary

    INTRODUCTION

    The legal rights of elderly persons as embedded within human rights arise from international conventions. Clear trends can be identified in Europe towards a further strengthening of the legal situation of this social group. Research on the laws regarding maintenance of elderly persons who cannot support themselves is consistent with that trend.

    In the context of Polish civil law, the need for providing elderly persons with tangible support, on the grounds that their ability to earn a livelihood declines and their health condition deteriorates in the course of time, is justifiable by strong ethical considerations. The fact that seniors in Poland are entitled to file claims for maintenance under the provisions of the Polish Civil Code and the Polish Family and Guardianship Code demonstrates a cross-generational solidarity grounded in a fundamental principle whereby the working-age population lends the elderly a helping hand in exchange for their experience and assistance. Family bonds play a crucial role in that context because they give rise to the maintenance obligation as well as provide grounds for quasimaintenance claims to which the decedent's grandparents are entitled.

    The object of this chapter is to discuss the question of maintenance for elderly persons in Polish family and succession law and determine whether the adopted solutions provide adequate protection to the legal interests of this growing social group. Owing to increased cross-border migration, the chapter also raises issues of conflict of laws to the extent that they relate to maintenance.

    THE RELEVANCE OF RESEARCH ON THE PROBLEM OF OLD-AGE MAINTENANCE

    Taking into consideration the current demographic situation, there are a number of phenomena related to maintenance in its wide sense, which used to be quite negligible in the past, but which are now emerging with growing frequency. Owing to a lengthening of the average human lifespan, old age is now becoming an increasingly longer stage in life, thereby giving rise to maintenance obligations enforceable not only against adult children, but also grandchildren or even great-grandchildren.

  • Myanmar Marriage under Myanmar Customary Law

    • By Khin Khin Oo, Professor, Department of Law, University of Mandalay, Myanmar
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 357-372

  • Summary

    INTRODUCTION

    Every citizen of a country has the right to freely follow one's customs, culture and traditions and profess the religion of their choice subject to certain limitations. These fundamental rights are expressly declared by the respective constitutions. The Myanmar Constitution of 2008 clearly recognises the citizens ‘right to freely develop the literature, culture, arts, customs and traditions they cherish. The Myanmar Laws Act 1898 vests force and validity in customary law if it is necessary to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution – the Buddhist Law in cases where the parties are Buddhists, the Muhammadan Law in cases where the parties are Muhammadan, the Hindu Law in cases where the parties are Hindus. However, this law naturally states nothing about the law applicable to Christians, as most family law matters for Christians are regulated by enacted laws, such as the Christian Marriage Act, Succession Act and Divorce Act. Family laws in Myanmar, therefore, can be grouped as four major different family laws, namely, Myanmar customary law (for Myanmar Buddhists), principles of Hindu law (for Hindus), Mohammedan law (for Muslims), and various family statutes applicable to Christians (for Christians). This chapter will discuss marriage under Myanmar Customary law.

    NATURE AND SOURCES OF MYANMAR CUSTOMARY LAW

    Before beginning the main discussion of the marriage systems of Myanmar's people, it is essential to discuss the nature of Myanmar customary law and its sources. Myanmar customary law has applied to all Buddhists in Myanmar as their personal law since the ancient times of Myanmar kings; and it may primarily be gathered from the Dhammathats, thus standing on its own legal system.

    Myanmar, formerly known as Burma, was formed as one of the provinces of British India after the three Anglo-Myanmar Wars in 1825, 1852 and 1885. After the annexation of Myanmar by the British Government, many principles of British common law were initiated and introduced to establish a uniform system of laws throughout the country. The impact of British law, however, has not much affected the ancient Myanmar customary law.

  • China Child Sexual Assault in China and Preventive Education

    • By Xia Li, Professor of Law and Director of the Center of Family Law and Feminist Legal Theory, Law School, East China University of Political Science and Law, Shanghai, China
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 165-176

  • Summary

    This report was published by the Center of Family Law of East China University of Political Science and Law (Center of Family Law of ECUPL). The statistical data on sexual abuse on children was collected from public reports (including official websites of courts and procuratorates at all levels and their published accounts). The statistical data on children's education concerning the prevention of sexual assault came from online and paper questionnaires distributed over 32 provinces.

    This chapter aims to draw public attention towards the serious situation regarding sexual assault on children and the lack of relevant education. Reports have been issued by the Center of Family Law of ECUPL for four successive years, with statistical data based on the reported cases. That is to say, the real figure was likely bigger than the reported one. It is difficult for us to discover all the cases, so a large number of cases are still undisclosed.

    Even with under-reporting, the Center of Family Law of ECUPL demonstrates from the statistical data from local courts and procuratorates in 2016 that over 80 per cent of assaults were perpetrated by acquaintances, and that the lack of education about child sexual abuse was highly consistent with the previous reports published by the Center of Family Law of ECUPL. The Center of Family Law of ECUPL opines that relevant departments and institutions should increase the publicity concerning this kind of crime under the laws and opinions protecting juveniles rights. This chapter can serve as a warning, provide data for other relevant studies and further improve our laws and systems.

    STATISTICAL DATA OF SEXUAL ASSAULT ON CHILDREN IN 2016

    AN UNFORTUNATE INCREASE IN REPORTED CASES

    The four summaries show an average of over 1.1 reported cases per day, with an unfortunate increase of about 20 per cent per year.

    According to the public reports for 2016, there were a total of 433 cases and 778 victims of child sexual assault (those under 14 years old), with an average of 1.12 cases noted daily. This figure was 27.35 per cent higher than in 2015, when 340 cases were reported, with 0.95 cases exposed daily. In 2014, a total of 503 cases were reported, with 1.38 cases reported daily.

  • India Family Privacy in India

    • By Sayali Bapat, Doctor of Juridical Science Candidate, Emory University School of Law, Atlanta, United States of America
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 253-270

  • Summary

    INTRODUCTION

    Family privacy in India is a complex subject. This chapter aims to give readers an overview of family privacy under Indian law through the lens of two decisions passed by the Supreme Court of India in 2017.

    First, it describes the implications of the Supreme Court's decision in K.S. Puttaswamy v. Union of India for family privacy. In Puttaswamy, the Supreme Court of India authoritatively held that the right to privacy is a fundamental right protected by the Constitution of India. In its decision, the Court analysed the concept of privacy in detail. The plurality opinion also highlighted several decisions of smaller benches that recognised privacy as a constitutionally protected right. This analysis of precedent included discussions of decisions that had recognised personal autonomy and bodily integrity as important aspects of women's right to privacy. The plurality's analysis in Puttaswamy is interesting when placed within the context of a traditional narrative in India that views the family as sacrosanct. This narrative is based on a presumed existence of a family ‘unit’ whose privacy is in tension with the rights of individuals to personal autonomy and bodily integrity. A prominent example of this traditional narrative is precedent governing the constitutionality of section 9 of the Hindu Marriage Act, related to restitution of conjugal rights. According to this provision, a court may order a spouse who has withdrawn from the society of the other without reasonable excuse to resume cohabitation. Non-compliance with a decree of restitution may lead to financial sanctions, either in the form of attachment of property or periodical payments by the judgment debtor to the decree holder.

    It is widely believed that the Puttaswamy judgment will have important implications for gender equality. At the time of this writing, there are two separate petitions that have been filed in the Delhi High Court, urging it to declare provisions related to restitution of conjugal rights and marital rape as unconstitutional. However, this chapter will highlight how the decision of the Supreme Court in Puttaswamy has only reduced the ambiguity related to the concept of family privacy to a certain extent.

  • England and Wales To Procreate, or Not, That is the Question

    • By Mary Welstead, CAP Fellow, Harvard Law School, Harvard University, Massachusetts, United States of America; Visiting Professor in Family Law, University of Buckingham, England, United Kingdom
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 177-210

  • Summary

    There is a general assumption that human beings have an innate desire, and a natural ability, to conceive, give birth and care for their offspring, a view which is backed up by the European Convention on Human Rights (the Convention). Article 12 includes the right to found a family. There are, however, a significant number of would-be parents of either gender who are infertile, or biologically incapable of having children and, in a world where significant advances have been made in technological reproduction, these would-be parents may well believe that they have a right to procreate by whatever means they choose and join the ranks of those who have become parents by natural means.

    In contrast to those who long for children, there are those who do not share their desires and who wish to avoid being encumbered with a child or who seek compensation in circumstances in which they would have been unwilling to conceive a child had they been given correct medical information.

    A third category of persons exists which consists of those who are deemed to lack the capacity to make decisions about procreation and the court may be asked to make orders to prevent them from having a child when it would be in their best interests not to procreate.

    In this chapter, I propose looking at a number of recent legal decisions in the jurisdiction of England and Wales relating to these three categories.

    THE DESIRE TO PROCREATE

    Three of the decisions in this first section relate to women who wanted to undergo fertility treatment to fulfil their desire to have a child. The fourth decision concerns a man who was deceived by his wife into believing that he was the biological father of a child conceived by way of IVF.

    DAMAGES TO FUND SURROGACY FOLLOWING INFERTILITY CAUSED BY NEGLIGENCE: XX v. WHITTINGTON HOSPITAL NHS TRUST (2017)

    The Facts

    Between 2008 and 2013, XX, a woman aged 29, had regularly complained of gynaecological symptoms to the medical staffat the Whittington Hospital NHS Trust (the Trust). Smear tests and biopsies were carried out but no diagnosis was made until the middle of 2013 when XX was told that she had invasive cervical cancer. She required treatment by surgery and radiotherapy.

  • Serbia The Case of ‘Missing Babies’ in Serbia before the European Court of Human Rights

    • By Melanija Jančić, Assistant Professor, Faculty of European Legal and Political Studies, Educons University, Novi Sad, Serbia
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 455-466

  • Summary

    INTRODUCTION

    In the case of Zorica Jovanovic v. Serbia, initiated before the European Court of Human Rights (ECtHR) in April 2008, the applicant complained of the continuing failure by the Serbian authorities to provide her with any information about the real fate of her son, who had allegedly died while in the care of a state-run hospital, or indeed with any other redress. Not only did the ECtHR decide that the applicant's right to family life guaranteed by Article 8 of the European Convention was violated, but it also held that the respondent state must, within a year from the date on which the judgment became final, take all appropriate measures, preferably by means of a lex specialis, to secure the establishment of a mechanism aimed at providing individual redress to all parents in a situation such as, or sufficiently similar to, the applicant's. 2 It is important to emphasise that hers was not a single case. According to some information, there are around 1,500 reported cases of babies missing from maternity wards, although there is no data on the exact number of cases. State authorities in Serbia, however, had still done nothing either to investigate and prosecute those cases or to adopt legal mechanisms to resolve them.

    THE CASE OF ZORICA JOVANOVIC v. SERBIA

    To begin with, I will summarise the facts of the only case against Serbia regarding the issue of missing babies. At the end of October 1983, Zorica, the applicant, gave birth to a healthy baby boy in a state-run hospital in Ć uprija, a town in central Serbia. For the next two days, she had contact with her baby on a regular basis, and on the second day doctors informed her that both she and her baby would be discharged the next day since her son had no medical problems. The following morning the duty doctor told Zorica that her son had died. In a state of shock and disbelief, she quickly went to the room where new-born babies are located, hoping to see her son.

  • Papua New Guinea Child Welfare and Protection Law Reform in Papua New Guinea: A Critique

    • By John Y-Luluaki, Professor of Law, School of Law, University of Papua New Guinea, Port Moresby, Papua New Guinea
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 399-424

  • Summary

    INTRODUCTION

    The issues of child welfare and their protection from physical violence as well as from social, emotional and psychological detriment continue to be issues of national concern in Papua New Guinea. The difficult social and economic context of being a child in the country today cannot be overstressed. There is still no government policy regarding the family or child. There is equally no government or official statement on the state of families and no data on the number or incidence of de facto families or even the number of children in the country. The last census was conducted in 2011. According to these figures, the total population of the country was 7,275,324. Of this, there was a total of 3,067,419 citizen persons under the age of 18 years, representing 42.3 per cent of the total population. That is seven years ago, meaning that the youngest, i.e. those born in 2011, would be seven years of age this year (2018). There is presently no relevant social demographic information concerning such matters as population groups, the number of families based on marriage, families based on de facto relationships, and births and deaths. However, while this information is difficult to ascertain, the incidence of child maltreatment continues unabated and is increasing. If the high incidence of physical and sexual violations against children, especially young girls, reported by the daily newspapers is any indication, such violations must be reaching crisis proportions. In a recent report for example, the Metropolitan Superintendent of Police of the nation's capital, Port Moresby, is reported as saying that despite the awareness against such crimes, they continue to be committed and increasing against children ‘especially against teenage girls ’.

    Until very recently, the government response over the years since independence to the need to provide for children and protect them from harm and abuse has largely been a failure. Compared to changes in many other areas of the law in the country since independence in 1975, reform in the laws relating to family matters generally, including child welfare and protection in particular, have continued to receive little to no serious attention from the legislature.

  • New Zealand A Review of Relationship Property and the Māori Way of Life in Parenting Disputes: Changes Afoot

    • By Mark Henaghan, Professor of Law, Faculty of Law, University of Otago, Dunedin, New Zealand
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 373-384

  • Summary

    THE NEW ZEALAND LAW COMMISSION'S REVIEW OF RELATIONSHIP PROPERTY

    The New Zealand Government asked the New Zealand Law Commission (the Law Commission) (a body charged with carrying out research and consultation into areas of laws that potentially need reform) to carry out a review into relationship property law in New Zealand. As a result, the Law Commission produced a comprehensive Issues Paper which forms the basis for consultation and submissions on whether or not changes are needed to the law. This chapter will analyse four central issues pertaining to relationship property law: economic disparity, property held on trust, contracting out of the Property (Relationships) Act 1976, and children's interests in relationship property proceedings.

    ECONOMIC DISPARITY

    In 1976, New Zealand passed the Matrimonial Property Act 1976 (the ‘original Act ’). The original Act applied only to married couples, although there was debate at the time as to whether or not it should apply to de facto couples as well. The original Act was based on the principle that marriage is a partnership of equals, with each partner contributing in different but equal ways to the acquisition of what was then called ‘matrimonial property ’. The parties ‘home and family chattels were to be divided equally, no matter when they were acquired (whether before or after the marriage) unless extraordinary circumstances made equal sharing repugnant to justice, or in circumstances where the marriage was for less than three years in duration. Other assets acquired during the marriage also had to be divided equally, unless the contributions of one spouse were clearly greater than the other. The original Act set out the financial and non-financial contributions to a marriage in the following exhaustive list:

  • (a) The care of any child of the marriage or of any aged or infirm relative or dependant of the husband or wife:

  • (b) The management of the household and the performance of household duties:

  • (c) The provision of money, including the earning of income, for the purposes of the marriage partnership:

  • (d) The acquisition or creation of matrimonial property, including the payment of money for those purposes:

  • Japan The Japanese Supreme Court should Promote Family Law Reform More Drastically

    • By Fumio Tokotani, Professor of Law, Osaka School of International Public Policy, Japan
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 321-332

  • Summary

    INTRODUCTION

    On 16 December 2015, the Supreme Court of Japan made two important and impactful decisions relating to marriage law. In the first case, the Court held that the provisions of Article 733 of the Japanese Civil Code, which prescribes a waiting period of six months for women only as a requirement of remarriage, violated the equality principle of the Japanese Constitution. The Court held that the waiting period of 100 days would be constitutional, however. Many scholars hold that the waiting period for a woman to remarry should be totally abolished.

    In the second case, the Court held that Article 750 of the Civil Code, which prescribes the mandatory common family name for the married couple as an effect of a marriage, does not violate the equality of husband and wife. In Japan about 96 per cent of married couples choose the name of the husband as a common family name. Many wives must bear the practical and emotional burden as the result of the change of their name. Most of the Supreme Court justices, 10 of 15 justices, held that the common family name system has been established for a long time in Japanese society and that a common family name is rational for a natural and basic unit of society. With a common family name, one can recognise oneself as a member of a family. Furthermore, a legitimate child can have the same name as both parents.

    Japan's ruling party (LDP) and conservative people believe that the common family name is one of the beautiful traditions of Japanese society, a tradition worthy of preserving, although such a mandatory common family name is seldom seen in foreign countries. They also point out especially that a different name of a husband (father) and a wife (mother) could inflict harm upon their children. Many Japanese scholars, however, have strong opinions that both the husband and wife should be able to preserve their names as they wish, so that a common family name should not be mandatory

  • Africa Children and Informal Justice Systems in Africa

    • By Julia Sloth-Nielsen, Professor, Faculty of Law, University of the Western Cape (UWC), South Africa; Professor of Children's Rights in the Developing World, University of Leiden, The Netherlands
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 1-22

  • Summary

    This chapter draws from a larger study titled ‘Achieving child-friendly justice’ in Africa. The study aimed to assess the state of child friendly justice in Africa. Part of the work sought to explore the extent to which children encounter informal justice systems in juvenile justice, child protection, family law matters, and as victims of criminal offences. Although reflecting mostly on the paucity of literature available, the work was bolstered by seven country studies which were undertaken in parallel with the preparation of the main work, which contribute to the understanding of children's contact with informal justice systems. The characteristics of informal justice processes are discussed, as well as the reasons for communities’ continued reliance on them, in preference to formal justice systems. The challenges facing the implementation of children's rights principles in informal justice processes is scrutinised. Finally conclusions and recommendations for strengthening the linkages between formal and informal justice systems, and for infusing a more child rights orientation, are put forward.

    INTRODUCTION

    Africans perceive conflict as the motor and engine of relationships. This is because it is impossible to speak of a relationship without conflict and it is impossible to speak of conflict without a relationship. Being a social phenomenon, the general intention of conflict resolution … is to mend broken or damaged relationships, rectify wrongs, and restore justice and harmony between individuals, families and the community at large. The traditional concept of conflict resolution is to reconcile and make peace between disputing parties, ensure the reintegration of the disputing parties into the society and to promote co-operation and harmony between them that may help improve their relationship.

    The continued use of informal justice mechanisms must be seen in both historical and contemporary contexts. Sidelined and regarded as backward during the colonial era, informal justice systems were regarded as an impediment to development. Upon liberation from colonial rule, it was thought that they would simply die out. However, for reasons set out below, this did not occur and they continued to form the backbone of access to justice for citizens in an estimated 70 per cent to 90 per cent of instances, according to some sources.

  • Hong Kong Cutting Our ‘Children's’ Coats According to Our Cloth: Hong Kong Family Mediation Regarding Children's Arrangements in the Context of Culture and Law

    • By Sala Sihombing, Family and General Mediator, Hong Kong; Non-Practising Solicitor in England and Wales and Hong Kong; Adjunct Lecturer, University of Hong Kong
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 221-252

  • Summary

    As a famous centre of tailoring expertise, Hong Kong is well versed in cutting our coats to suit our cloth. Family mediation provides a process option which is both tailored and responsive for Hong Kong families experiencing the transition through family separation. Hong Kong family mediation practice to help parents construct new realities for their children has evolved to take into account the cultural context in Hong Kong and the legal parameters of family law.

    In Hong Kong, a family mediator may work with married parties as they divorce or separate to make arrangements in respect of their children and finances (asset division, spousal maintenance (if any) and children's maintenance). For unmarried parties, it is not unusual for family mediators to work with parents in relation to their children and any joint assets/child maintenance arrangements. In either case, the court will consider the arrangements for children and, if approved, these will be converted into consent orders both in relation to custody/access and also maintenance. For married parties the financial arrangements (asset division/spousal maintenance (if any)) will also be turned into a separate consent order in respect of finances. Therefore, the legal framework in Hong Kong informs and delineates the parameters for the work of family mediators.

    How does the legal and cultural landscape in Hong Kong shape the experience of parties in family mediation when seeking to resolve arrangements for their children? Although society and family life is changing, Hong Kong's legislation regarding custody and access remains the same, and recent attempts to modernise the regime in respect of children have met with resistance (section 1). This has led to stasis in the law affecting children in Hong Kong and has directly impacted the way in which family mediators must work with parties.

    The peculiar circumstances of Hong Kong's history and population, and the existing legal framework have produced a unique blend of modernity and anachronism (section 2). What do mediators need to take into account when supporting families through transition, and how do these considerations impact the practice of family mediation in Hong Kong in relation to arrangements for children? (section 3).

  • Belgium Belgian Family Law Anno 2018

    • By Elisabeth Alofs, Professor of Law and Managing Director of the Master of Laws in Notarial Studies, Faculty of Law and Criminology, Vrije Universiteit Brussel (Free University of Brussels), Belgium, Anne-Sophie Vandenbosch, Doctoral Student, Faculty of Law and Criminology, Vrije Universiteit Brussel (Free University of Brussels), Belgium
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 99-118

  • Summary

    INTRODUCTION

    Families and family realities are constantly evolving, and so does family law itself. Over the last decade Belgian family (property) law has been subject to many reforms. The legislator has made important changes in the field of parentage (2006), divorce and post-divorce maintenance (2007), child maintenance (2010), family and juvenile courts (2013), co-motherhood (2014), naming law (2014), foster care (2017) and inheritance law (2017). Through an analysis of the existing legal provisions and the relevant case law of the Belgian Constitutional Court and the Court of Cassation, this contribution aims to offer an overview of Belgian family law as of 2018. This contribution offers a view of the various aspects of Belgian family, such as marriage and divorce (section 2), cohabitation outside marriage (section 3), filiation (section 4), and parental responsibilities and child maintenance (section 5).

    MARRIAGE AND DIVORCE

    ENTERING THE MARRIAGE: BASIC AND FORMAL REQUIREMENTS

    Marriage is the most formalised form of cohabitation in Belgium, with many basic and formal requirements. Marriage stands alongside the less formalised forms of partnership, namely legal cohabitation and de facto cohabitation, which are covered in section 3.

    In Belgium, a marriage can be entered into by two adults (Article 144 Civil Code) of the opposite or same sex (Article 143, paragraph 1 Civil Code). Consent of both spouses is essential; absence of consent leads to the annulment of the marriage (Article 146 Civil Code). Another basic requirement to marry is that a second marriage cannot be entered into before dissolution of the first marriage (Article 147 Civil Code). Finally, the spouses may not be related within the prohibited degrees of kinship, the so-called ‘impediments to marriage ‘(Articles 161 – 163 Civil Code and Article 353-13, 1 ° –5 ° Civil Code).

    Alongside the aforementioned basic requirements to marry, there exist some formal requirements. A person wishing to enter into a marriage must first make a declaration to the Registrar (Article 63, section 1, paragraph 1 Civil Code), which will be followed by a waiting period of 14 days (Article 165, section 1 Civil Code) during which the Registrar checks whether the basic requirements to marry are met and verifies, among other things, the (non-)existence of a marriage of convenience or so-called'sham marriage ‘. Moreover, the marriage itself must be concluded in public (Article 166 Civil Code).

  • Singapore The Evolution of the Singapore Family Justice Courts: A Journey to Serve Families and Children Responsibly

    • By Yarni Loi, District Judge, Family Justice Courts, Singapore, Sylvi Tan, Principal Court Family Specialist, Counselling and Psychological Services Division, Family Justice Courts, Singapore
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 467-492

  • Summary

    INTRODUCTION

    As the family goes, so goes the nation and so goes the whole world in which we live.

    Pope John Paul II

    Family is the building block of society. The institution of marriage as a legal construct is integral to enforcing the family structure and stipulating the obligations and duties of husbands and wives, parents and children. The greatest concern when a marriage falls apart is the potentially profound negative impact not only on parents but especially on children. Studies have shown that divorce is one of the most stressful life events that can confront an individual. Further, developmental outcomes for children are adversely affected when they are exposed to persistent parental conflict and violence. Such children may carry difficulties into adulthood that range from feelings of sadness and vulnerability, to more serious mental health issues, which translate into deeper issues for society as a whole.

    It is imperative that society should take care of families, especially the vulnerable and the young, and the courts play an important role in this regard. The courts represent a fundamental institution of government, set up to perform the judicial function of helping parties resolve their disputes by upholding the rule of law. However, family disputes are unique. Unlike ordinary commercial disputes, underlying many family disputes are deeper emotional and psychological wounds, as well as fractured family ties and relationships that often have to endure long after the legal dispute has ended. More fundamentally, family disputes often involve vulnerable children who require special protection.

    There has been growing awareness that courts cannot simply dispense ‘justice’ simpliciter when handling family disputes, without any regard to the deeper underlying issues. Since the mid-1990s, the Singapore courts have been drawing on the insights gleaned from related social science disciplines, to enhance the way family disputes are resolved and ‘justice’ dispensed, whilst upholding the law. Innovations and initiatives (e.g. court mediation and counselling) have been incrementally injected into the court system, to shift the courts away from a purely adversarial court model which has the potential to inflict even greater harm on parents and children, given its tendency to aggravate rather than ameliorate conflict.

  • Ireland Sheltering the Homemaker in Irish Family Law: Ireland's Failure to Evolve with the Shifting Social and Family Norms

    • By Louise Crowley, Senior Lecturer in Family Law, School of Law, University College Cork, Ireland
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 271-296

  • Summary

    INTRODUCTION

    Family law in Ireland is premised upon absolute respect for the marital family. The family is accorded an elevated status in the Irish Constitution, where it is expressly regarded as a unit that is superior to all positive law with inalienable and imprescriptible rights. This marital union is founded upon the express constitutional preference for the wife and mother to remain in the family home to fulfil her duties to the family as a whole. Article 41.2.1 of the Irish Constitution critically outlined below, obliges the state to take the steps necessary to ensure that no woman is forced through economic necessity to work outside the home. The normative importance of the married family in Irish society simply cannot be overstated, and this absolute preference for the family unit founded upon marriage has in turn hugely influenced the state's approach to regulating marriage breakdown. Whilst facilitating the remedy of divorce, the state has retained this protectionist approach and has enacted a statutory framework which normalises life-long interdependence, placing such financial obligations on the breadwinner (former) spouse, making it impermissible to seek or secure individual financial freedom. As a means of influencing social policy and directing individual behaviour and choice, Irish lawmakers have elected to permanently protect the homemaker rather than mandate any expectation of, or right to post-divorce independence.

    In creating the necessary legal framework which operates to dissolve the union, lawmakers have resolutely maintained this marital fiction by refusing to permit any scenario where spouses can be deemed to have definitively severed their financial ties, thereby insulating the position of the homemaker, irrespective of the individual financial circumstances of the former spouses. These deep rooted inter-spousal obligations exist to incentivise marital commitment and serve to ensure the imposition of entitlements should the parties divorce. This community, lifetime-based, view of financial obligations maintains an expectation of inter-spousal responsibilities post-divorce, creating a marital union that is not necessarily binding, but a financial commitment that is. The heterogeneous nature of modern Irish family life mandates that Irish family law move away from its long held aspiration of a family based on heterosexual marriage with idealised gender-specific roles.

  • Norway The Strengthening of Fathers’ Rights in Norwegian Child Law and Other Recent Reforms

    • By Tone Sverdrup, Professor of Law, Department of Private Law, University of Oslo, Norway
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 385-398

  • Summary

    INTRODUCTION

    Ideas of equality between family members have received strong support in Norway, equality between children born in and out of wedlock, between husband and wife and between fathers and mothers. In recent years, fathers have strengthened their position in child law and same-sex couples have attained equality in marriage law. At the same time, child law has become an arena for political disputes, often pitting mothers ‘rights against the rights of fathers and biological parenthood against social parenthood (section 2). Marriage law, on the other hand, has seldom been at the centre of political debate, with the exception of equal rights for same-sex couples. Recent changes have concerned the legal age of marriage and wedding ceremonies (section 3).

    RECENT REFORMS IN CHILD LAW

    Norwegian child law has experienced frequent legislative amendments in the last decade. An important goal of the latest legislative changes in 2016 and 2017 has been to ensure the rights of fathers with regard to paternity, parental responsibility, custody and access. Another purpose has been to safeguard children's rights in areas where they look good on paper, but where reality tells a different story.

    CONTESTATION OF PATERNITY

    Paternity rules have been the subject of several amendments in the last decades, and new provisions allowing legal action on paternity were introduced in 2016.

    The husband of the mother is automatically established as a child's father. If the mother is unmarried at the time of the child's birth, paternity is determined either by the father's declaration or by court judgment. Declaration by a father is only valid with the consent of the child's mother. In cases where the child does not have a legal father in accordance with these provisions, the authorities are responsible for establishing paternity. The authorities may require that the mother, the child and the man or men who may be the father of the child shall provide suitable samples for DNA analysis.

    Between 2005 and 2013, cohabiting fathers were allowed to register paternity without the consent of the child's mother.

  • China A Survey on the Intestate Succession Views and Relevant Habits of Private Entrepreneurs in Contemporary China and its Legislative Implications

    • By Chen Wei, Professor, Civil and Commercial Law School and Director of the Foreign Family Law and Women Theories Institute, Southwest University of Political Science and Law, Chongqing, China, Shi Lei, Lecturer, Civil and Commercial Law School, Southwest University of Political Science and Law, Chongqing, China
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 145-164

  • Summary

    Inheritance involves the vital interests of thousands of families, the interests of any spouse's creditor(s) and ensuring that property and assets are transferred securely. Unlike other jurisdictions where testaments are widely used, the Chinese are still reluctant to use wills or other testamentary dispositions to deal with property problems after one's death. Therefore, the intestate succession system continues to be an important way of dealing with inheritance disputes in many provinces in China. With the development of China's economy and the generally increasing wealth of its people, private enterprises, including self-employed households, have become an important force in economic development. The owners of these enterprises, that is, private entrepreneurs, tend to have even more wealth. They have more inheritable interests than others, and their heirs are more likely to fall into succession disputes. Civil law codification is currently underway in China. Therefore, we carried out a survey on the property ideas and inheritance habits of Chinese private entrepreneurs during the first two months of 2017. Owing to limited funds and the general Chinese tendency to avoid any discussion of property problems with strangers, we had to conduct this survey in a comparatively unusual way to discover entrepreneurs ‘attitudes. The responses came from students’ face-to-face interviews, which to some extent might influence the scientific validity of the survey. But they are indeed suggestive of what this special group of people with property might think. Owing to space limitations, we only present the data on the intestate inheritance system part of the questionnaire, analyse their responses on intestate inheritance and inheritance habits, summarising the characteristics of the respondents and analysing the main reasons given for their choices. From the analysis of this survey and studies of scholars ‘legislative proposals, we put forward suggestions on intestacy legislation for the Succession Part of the Civil Code based on Chinese individuals’ positions.

    BASIC INFORMATION ABOUT THE RESPONDENTS

    The survey was carried out by investigators from the Southwest University of Political Science and Law, China. During their winter holiday break in 2017, investigators visited entrepreneurs in their respective hometowns and recorded the questionnaires, eventually collecting 179 sets of responses from Sichuan, Chongqing, Hebei, Fujian, and other provinces and cities.

  • Portugal Chronicle of a Legal Reform Foretold: The Shape of the Law to Come Regarding Incompetent Adults in Portugal

    • By Rute Teixeira Pedro, Assistant Professor, Law Faculty and Researcher, Centre for Legal and Economic Research (Centro de Investigação Jurí dico-Económica (CIJE)), University of Porto, Portugal
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 441-454

  • Summary

    INTRODUCTION

    A government bill has just been approved by the Portuguese Parliament which will introduce major amendments into the legal framework applicable to the guardianship of incompetent adults.

    There are many reasons why this legal reform has become urgent, as will be explained in section 2 of this article. On the one hand, sociological and demographical phenomena have occurred in recent decades, as well as significant developments in medicine; on the other hand, some reasons arise from the legal standard of protection that ought to be awarded in accordance with the Portuguese constitutional framework and in compliance with the international commitments on the safeguarding of human rights, to which the Portuguese state is duty bound to comply.

    The combination of those non-legal and legal factors led to the obsolescence of the legal framework currently applicable to incompetent adults. As will be described in section 3, the law on the books does not offer an appropriate response, nor does the law in action provide a suitable response to the problem of adults who require special protection, as they present a particular vulnerability that has to be properly addressed by the law.

    The new provisions that are included in the recently approved new Law (Law 49/2018, dated 18 August 2018) involve a paradigm change regarding the legal approach to this problem. The paternalistic intervention based on the restriction or deprivation of legal capacity will be replaced by a more supportive intervention based on the promotion of autonomy and inspired by the principle of proportionality. In section 4, the new legal framework will be considered in order to highlight the main traits of the law that will come into force in this area in February 2019.

    THE NEED FOR A REFORM OF THE LEGAL FRAMEWORK APPLICABLE TO INCOMPETENT ADULTS IN PORTUGAL

    As the data on demographic trends shows, the ageing of populations is a phenomenon perceptible worldwide; not only is there a rise in the number of older persons, but their proportion amongst the overall population is also increasing. Portugal is no exception – the population aged 60 years or over represents 28 per cent of the overall Portuguese population.

  • Canada Efforts to Address Intimate Partner Abuse and High-Conflict Custody Disputes in Canada

    • By Martha Bailey, Professor, Faculty of Law, Queen's University, Ontario, Canada
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 137-144

  • Summary

    INTRODUCTION

    Since the 1980s, Canada has made various efforts to modernise and better address the serious problem of intimate partner violence. In 2018, the Federal Government introduced revisions to the Criminal Code, including amendments aimed at increasing the effectiveness of the criminal justice response to the problem. As well, provinces have created specialised courts to deal with intimate partner violence. These initiatives are promising. Unfortunately, a continuing problem is inconsistency in the quality of responses to intimate partner abuse across the country and within provinces.

    Canada also has been challenged by the problem of high-conflict custody disputes. Ongoing serious conflict between parents compromises the best interests of the children and leads to disproportionately heavy use of the family justice system. Measures to address high-conflict cases have been identified, but their adoption across the country has been uneven.

    INTIMATE PARTNER ABUSE

    Intimate partner violence, including violence between those in a spousal, cohabitation or dating relationship, whether current or past, is a serious problem in Canada as elsewhere. In 2015, there were 92,000 victims of intimate partner violence, representing over one-quarter of all victims of police-reported violent crime. 80 per cent of these victims were women. Not all incidents of intimate partner violence are reported to the police and are therefore not captured in these statistics. However, virtually all homicides are identified by the police, and the homicide numbers show that women are at greater risk of being killed by an intimate partner. In 2015, the rate of intimate partner homicides of women was 4.5 per 1 million, and for men the rate was 0.9 victims per 1 million.

    In an effort to reduce intimate partner violence and increase the effectiveness of the criminal justice response to the problem, the Federal Government introduced mandatory charging and ‘no drop’ prosecution policies in the early 1980s. The provinces subsequently adopted the same approach. The policies signalled that intimate partner violence was not to be regarded as a private matter but as a serious societal problem and a violation of the law. The policies were also intended to protect victims by placing the onus for laying charges on the police and Crown. The risk of recrimination against victims was reduced because the decision to lay charges and proceed was no longer theirs.

  • Sweden, Norway and the USA Regulations of and Remedies for Corporal Punishment Against Children

    • By Elizabeth Perry, Doctoral Candidate and Lecturer in Comparative Family Law, Comparative Law and European Union Law, Department of Law, Umeå University, Sweden, Viola Boström, Senior Lecturer in Family Law, Department of Law, Umeå University, Sweden, Marie Nordvik, Doctoral Candidate and Lecturer in Children's Rights and Welfare Law, Department of Law, Umeå University, Sweden; Institute of Child Welfare and Social Work, Arctic University of Norway
  • Edited by Margaret Brinig
  • Book:
    International Survey of Family Law 2018
    Published by:
    Intersentia
    Published online:
    31 January 2019
    Print publication:
    28 September 2018, pp 527-556

  • Summary

    INTRODUCTION

    This comparative review briefly presents the legal positions of the UN Convention on the Rights of the Child (CRC) and of the Swedish, Norwegian and American legal systems with respect to parental corporal punishment of children (CP), then outlines and compares the available remedies and enforcement in practice when incidents of CP occur in each of the three countries.

    ‘Corporal’ punishment, for the purposes of this chapter, x2019 a physical touching of a child for the purpose of correcting the child's behaviour. In the term ‘parental ‘we include biological and adoptive parents and step-parents, but exclude consideration of violence committed by other caregivers or guardians, also to limit the scope of discussion.

    In the past century many legal regulators have moved from viewing ‘mild’ CP of children as a parental right or even duty to viewing it as a harmful and abusive practice. In a growing number of jurisdictions – including Sweden and Norway but not the United States – CP is now a crime.

    With this comparison, we test our hypothesis that actual legal consequences for various types of parental behaviour that can be defined as CP do not differ as starkly as one might initially expect when one knows only that CP of children is criminally punishable in Sweden and in Norway but lawful in all 50 states of the United States. We find this true to an extent, yet also describe significant differences in state actions taken when CP occurs in Sweden and Norway compared to in the US, including compensatory damages paid to children and potential criminal conviction of offending parents or removal of the child from the home. These consequences correlate with a much higher rate of CP occurring in the US than in these two Scandinavian countries today. We conclude with brief comments on the implications of our findings.

    LEGAL LIMITS ON PARENTAL DISCIPLINE

    Because of the widespread international approval of the UN's CRC, we begin with its position on the proper legal regulation of parents ‘behaviour as they guide the upbringing of their children, specifically its position on disciplinary practices collectively known as CP, then summarise the three studied countries’ approaches to CP regulation.

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