What did the scholars do in developing family law
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Whichever model of family law underpins the regulatory system of a particular country or state, there do seem to be some common directions for change. In the 1980s and 1990s, writers on family law identified what became known as the rolling back of family law, that is, the increased reliance on individual decision-making and the removal of a number of matters related to personal relationships from legal intervention. It became less common for legal rules to regulate choice of marriage partner (i.e., the old restrictions from the Judaeo–Christian tradition on marrying the dead wife's sister which conflict with the Moslem requirement to take on responsibility for a dead brother's wife). In many societies, no-fault divorce became a matter of personal choice. But although the couple relationship is coming to be seen more as a matter of choice, and to lie outside the boundaries of legal regulation, the relationship between parents and children becomes more exposed and subject to increasing legal intervention. Where children live in households with parents, the need for protective legislation remains, but the need for regulation of how the household sustains itself is minimal (see Children and the Law).
But as couple relationships become divorced from the parenting function, the need for legal regulation of the obligations of parents increases. If two people produce a child, and either never live together or separate, and either or both go on to have other children with other partners, the potentially conflicting obligations between this network of parents and children requires a regulatory structure. We referred earlier to the difficulty in the UK when the Child Support Act in 1991 required a change in the distribution of the assets of the absent parent, requiring him to give priority to the children born first, and not to children currently sharing the new household. This was a hard switch to make, and it aroused great public outcry.
But there is a further aspect of the parent–child relationship which may also give rise to legal regulation in the future. With an aging population, and the rolling back of welfare provisions, we may be looking to adult children to offer more support to their elderly relatives (see Law and Aging). After the establishment on a firmer footing of child support, we may need to consider legislating for parent support. Such a development manifests a view of family law as no longer concerned with moral codes of behavior or political ideologies, but as trying through basic human rights principles to deal as best it can with multicultural and multifaith societies. Family law is developing to deal with personal obligations such as material obligations to support and enable.
At the same time, as the thrust of legislative intent focuses on obligations, rather than on rights, so too there is a move away from lawyers and courts to enforce these obligations. We see a resurgence of interest in paralegal activity and in finding alternative methods of dispute resolution. Mediation and conciliation, which require the individuals concerned to take responsibility for arrangements made in family matters, are expected to reduce levels of hostility and to produce longer lasting settlement. Empowerment of the individual is thought to be well served by these means, together with improved ability to communicate, which will be increasingly important as parents continue to take long-term responsibility for their children while no longer sharing a household.
Finally, as family arrangements become more attuned to individual choices in societies with a more tolerant view of different ways of arranging personal life, the ability to negotiate and to adjust becomes more important than the ability to fight for a particular right. If we continue to move in this direction, then it is probable that family law will become less concerned with adjudication or settlement of disputes, and more concerned with the business of managing change. A separation or divorce will involve less acrimony, and there will be clear directives on how to allocate responsibility for children. Legal intervention in families may come to resemble the technical financial advice of the accountant, rather than the fighting spirit of the old divorce lawyer ‘taking the husband for all he's got’ or ‘making sure she doesn't get away with a penny.’ The family law of the past was prescriptive, derived from the allocation of property between marrying groups. The family law of the future will be grounded in human rights and will facilitate the maximization of individual choices about personal living arrangements. It will ensure protection for the vulnerable family member, who is likely to be defined by age and relationship to the labor market, rather than by gender.
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