Private bill for ‘equal parenting’ goes on Parliament’s order

Has support from Laval-les Îles Liberal MP Raymonde Folco
Published July 15 , 2009
By Martin C. Barry • TLN

‘This law if passed would make it mandatory for two parents who are divorcing to discuss with either a mediator or a judge how they would divide the time with the children’ – Raymonde Folco

In the weeks preceding this past Fathers’ Day, there were so many different interpretations of who is a dad, some may have found it difficult to distinguish just what is a father these days. Oprah featured a single dad with nine children, and the National Post didn’t do much for the idea of fathers as role models when it ran an article on the importance of sperm in child development.

Divorce Act amendments

Now a small group of legislators from different sides of the House of Commons in Ottawa have gotten together in an attempt to address some of the real issues. Bill C-422, to amend the Divorce Act in favor of a presumption of equal parenting, has been tabled by Saskatchewan Conservative MP Maurice Vellacott, with the support of Laval-les Îles Liberal Raymonde Folco and Lévis-Bellechasse Conservative Steven Blaney.

At least one purpose of the proposed amendment would be to counter an overall bias many people feel currently exists in divorce and child custody law which generally favours women. “I had already met with a group that was trying to get a private member’s bill on this,” Folco said in an interview with TLN.

‘No hesitation’: Folco

“They thought I would be interested because of some of the other things I’d done in Parliament. So I said I would be very happy to second it. This is the kind of bill where I felt no hesitation at all. If he hadn’t tabled it, I would have. This law if passed would make it mandatory for two parents who are divorcing to discuss with either a mediator or a judge how they would divide the time with the children.

“Equal parenting means that 50 per cent of the time a child would be with one parent and 50 per cent with the other,” she continued. “That’s so that the two parents can come together for the good of the child. If one of the parents felt that during the week it was impossible for him or her to have the child and they would rather have him or her on the weekend, that would be something to be discussed between the two parents with a mediator. But the basic line is a 50-50 proposition, and this is to help the child grow up with the help of both parents.”

Supporters pleased

The Canadian Equal Parenting Council, a coalition of 40 member organizations and worldwide affiliates pushing for the recognition of presumptive equal parenting as being in the best interest of the child, is pleased with the proposed amendment. “We have had the real pleasure of working on this legislation with Mr. Vellacott who truly has the same interests as our coalition ― protecting the best interests of children after divorce,” said Kris Titus, co-president of the CEPC.


The CEPC says it agrees with Liberal leader Michael Ignatieff’s position on the issue and has called on all parties and their leaders to stand by their commitments to the United Nations Convention on the Rights of the Child, ratified by Canada in 1992, and to follow recommendations made in the For the Sake of the Children Parliamentary report of 1998.

Fathers 4 Justice

Regarding the move to shared parenting legislative changes, Ignatieff wrote in his 2002 book The Rights Revolution, “These are sensible and overdue suggestions.” Fathers 4 Justice Canada, a controversial group that has attracted a fair bit of media attention in recent years with tactics such as scaling tall structures like bridges where they hang banners, fully supports the proposed changes.

"Men in Canada need to quite literally start protecting themselves from the flawed family law system,” the group said in a statement reacting to Bill C-422. “Right now the focus is on litigation not restoration. Money talks and Dads are forced to walk away because they cannot afford to fight for their children any longer. We need to start asking why they should even have to. Dads are just not seen as important."

Source: http://www.lavalnews.ca/articles/TLN1714/parentingBill171408.html

How divorce affects children

This is a slideshow I put together to show the affects divorce has on children. This is a teen's first video on how divorce affects children.

"It is horrible to be forced to choose who are you going to live with, but it is worse when the decison depends on a court. The ugliest thing."

N.B. family court procedural snarls cause lengthy delays: report

Last Updated: Tuesday, June 2, 2009 4:46 PM AT Comments3Recommend8CBC News

A task force report on New Brunswick's family courts says the system is in disarray, as workers are bogged down with paperwork and the interests of children have become secondary to procedural requirements.

Justice Raymond Guerette, the chairman of the Access to Family Justice Task Force, released the report on Tuesday, which states the family court system has been suffering for years.

"For some time, now, perhaps going back 15 years, the court has steadily deteriorated in giving appropriate and expeditious service to the public."

The report says the court system has worsened because of a variety of factors, including an almost 50 per cent jump in people without lawyers, an escalation in the number and complexity of hearings in child protection cases, and "perceived procedural requirements."

"In the last few years, especially, the lack of money, resources and attention has resulted in reduced service to the public," the report says.

"This situation has arisen from inordinate delays in obtaining a hearing date, far too numerous adjournments, the inability to provide expeditious and proportionate resolution to relatively minor problems and the failure to keep up with progressive changes in other jurisdictions."

Justice Minister T.J. Burke said overhauling the system will be his most important task as minister, but it won't be quick or easy.

He has appointed a committee to look at how to implement the report's recommendations and to launch a pilot program this fall.

Ordinary motions can take months
Even a routine motion for interim relief can take four to six months to be heard, according to the report.

Last year, the provincial government spent $900,000 to hire 20 assistants to help social workers clear a backlog of paperwork.

The report says that the interests of children are now secondary to "excessive procedural demands."

It also recommends replacing the "adversarial system" with one that lets families break up with dignity and respect.

It suggests adopting a triage system that would quickly assess new cases and route them toward appropriate services such as mediation.

Source: http://www.cbc.ca/canada/new-brunswick/story/2009/06/02/nb-family-court-task-force-404.html

Burke accepts report on N.B. family court system, promises action

Burke accepts report on N.B. family court system, promises action
Last Updated: Wednesday, June 3, 2009 11:01 AM AT Comments4Recommend4CBC News

Justice Minister T.J. Burke said he accepts the findings of a scathing report that says the family court system is dysfunctional — and he is promising action.

'I have no doubt in my mind that we are make our best efforts to adopt as many of them as we possibly can over the next 24 to 48 months.'
— T.J. Burke, justice ministerThe Access to Family Justice Task Force report said families are facing unacceptable delays in seeing their cases resolved because the system is overwhelmed by paperwork and by procedure.

Burke said he is striking a committee which will look at how to implement the recommendations from the report. As well, a pilot project will start this fall intended to ease the pressure on the family court division.

"I have no doubt in my mind that we are make our best efforts to adopt as many of them as we possibly can over the next 24 to 48 months," Burke said.

Burke said he accepts the report's main point that spending a bit more on alternatives at the outset will cost the system less overall.

Justice Raymond Guerette, the task force's chairman, said in the report —which was released Tuesday and includes 50 recommendations — that the family justice system has deteriorated over the last 15 years.

The report attributed the worsening state of the system to a variety of factors, including an almost 50 per cent jump in people without lawyers, an escalation in the number and complexity of hearings in child protection cases, and "perceived procedural requirements."

"The object is to keep the case moving through the system, because right now it takes too long to get anything done," Guerette told reporters.

Court workers spend too much time on paperwork
The report said court workers, including social workers, spend most of their time on paperwork, rather than resolving family disputes.

'Being a single parent is bad enough as it is, without this family court adding to their problems.'
— Judge Raymond GueretteThe best interests of children are secondary to what the report calls "excessive procedural demands."

The report proposed a triage model that would divert some cases to mediation or to other services to lower the court's caseload.

Guerette said that recommendation will save money in the long run.

"Our finding is that the longer a case remains in the judicial system, the more it costs," he said.

However, the province recently cut some of the very services in the recent budget that the task force report says are needed, such as mediators.

With the problems facing the court process, Guerette said the system is insensitive to what families are going through.

"It's insensitive, because it doesn't take into account the anguish and the anxiety of single parents who have to go through the system to obtain a remedy or some relief. Being a single parent is bad enough as it is, without this family court adding to their problems."

Source: http://www.cbc.ca/canada/new-brunswick/story/2009/06/03/nb-burke-family-justice-959.html

CHILD VISITATION INTERFERENCE IN DIVORCE

CLINICAL PSYCHOLOGY REVIEW, VOL. 14. NO. 8, pp. 737-742, 1994

CHILD VISITATION INTERFERENCE IN DIVORCE
IRA DANIEL TURKAT, PH.D.
Florida Institute of Psychology and University of Florida College of Medicine

ABSTRACT. Divorce related child visitation interference is a national problem, affecting six million children. Such interference may be acute or may represent chronic disorders, such as Parental Alienation Syndrome and Divorce Related Malicious Mother Syndrome. In certain cases, visitation interference is accompanied by vicious behaviors toward the noncustodial parent, including violence and violations of law. The present paper describes the problem of child visitation interference, associated clinical syndromes, and attributes of the legal system that perpetuate the problem. Absence of scientific research devalues psychological input to the courtroom. It is hoped that the present paper will contribute to the development of a body of scientific literature in this area.

In recent years, the divorce rate has been similar to the rate of new marriages. Approximately one million divorces occur each year in the United States alone. The children involved in marital dissolution are commonly acknowledged as a vulnerable group (Hetherington & Arasteh, 1988). As parents often fight over custody and visitation, the demands placed on these children increase significantly.

To aid in the decision regarding custody and visitation, each state has developed guidelines for legal proceedings. Generally, these guidelines reflect the best interest of the child principle (Keane, 1990). It is assumed that frequent visitation with the noncustodial parent is an important right to both parent and offspring (Hodges, 1991). The overwhelming majority of custodial parents are female.

Unfortunately, the desire for ongoing and liberal visitation between child and nonresidential parent has frequently not kept pace with actual practices. The Children's Rights Council (1994) estimates that six million children in the United States have their visitation interfered with by the custodial parents. Two surveys support the range of this problem. Arditti (1992) reports that approximately 50% of divorced fathers relate that their ex-wife has interfered with visitation with their offspring. Similarly, approximately 40% of custodial mothers admit denying their ex-husband visitation in order to punish him (Kressel, 1985). In some cases, visitation interference has been associated with malicious unlawful acts against the father of such children (Turkat, in press). On rare occasions, a parent may actually kidnap the child.

The problem of child visitation interference has yet to be adequately addressed in the national media. Relatedly, there is an absence of research on the nature of child visitation interference, its etiology, or treatment. The purpose of the present paper is to raise awareness of the child visitation interference problem among psychologists. The first part of this article will describe some of the common types of child visitation interference situations that exist. The second part of the manuscript will discuss associated difficulties in handling this problem in the legal system.

TYPES OF VISITATION INTERFERENCE

Before discussing specific types of visitation interference, it is important first to describe "noninterference." Here, a child's patents divorce but the child is not estranged from either parent. The residential parent (typically the mother) encourages the child and the nonresidential parent to interact frequently and to be fully involved in each other's lives. The noninterference situation usually involves joint custody, which functionally results in joint decision-making by the parents in regard to their offspring. The child visits frequently with the nonresidential parent, speaks on the phone with the parent whenever needed or desired, and enjoys the benefit of that parent's involvement in school, extracurricular, religious, and other activities. State laws, reflecting the best interest of the child principle envision the noninterference situation in divorce involving children.

Unfortunately, it is becoming increasingly apparent that millions of children and parents are suffering from the problem of child visitation interference. From the clinical and legal literature, there appear to be at least three types of situations related to child visitation interference: (1) acute interference; (2) Parental Alienation Syndrome (Gardner, 1987); and (3) Divorce Related Malicious Mother Syndrome (Turkat in press).

ACUTE INTERFERENCE

The custodial parent who engages in acute interference has no systematic or devious plan for ongoing disruption of the relationship between child and nonresidential parent. Rather, the custodial parent intermittently or transiently denies visitation either through direct action (e.g., informing the nonresidential parent that his or her visitation is being denied) or passively (e.g., the nonresidential parent arrives to meet with his or her child and neither the custodial parent or the child are at home). Such instances of child visitation interference are typically associated with anger at the nonresidential parent for some matter (e.g. lack of payment of child support), poor advice by a friend, or other reasons (e.g. abusive behavior by the father toward the custodial mother -- see Shepard, 1992).

PARENTAL ALIENATION SYNDROME

In certain cases, child visitation interference is a direct result of a custodial parent suffering from a Parental Alienation Syndrome (Gardner, 1987, 1989). Here, the custodial parent engages in a variety of direct and indirect methods designed to alienate the child from his or her nonresidential parent. The result is that the child becomes preoccupied with unjustified criticism and hatred of the nonresidential parent.

Gardner (1989) has outlined four factors that he believes contributes to the development of Parental Alienation Syndrome. These include: (1) brainwashing, (2) subtle and unconscious parental programming, (3) factors arising within the child, and (4) situational factors.

Gardner (1989) uses the term brainwashing to refer to "...conscious acts of programming the child against the other parent" (p. 233). Examples include accusing the father of being an "adulterer" and "abandoner." Typically, the father is unjustifiably accused of providing too little money, sometimes to the point that the mother misleads her children to believe that terrible things will happen to them. When the father leaves the home, the mother may make statements such as, "your father has abandoned us," to teach the child that the rejection extends not only to the mother but to the offspring. Minor negative attributes of the father are exaggerated greatly. For example, the father who occasionally has an afterdinner drink is described as an alcoholic. Sarcastic comments are common, including statements to the child such as, "your wonderful generous father is finally going to spend a few dollars and take you to the movies!"

More subtle attempts to program the child against the nonresidential parent include comments such as, "there are things I could say about your father that would make your hair stand on end, but I'm not the kind of person who criticizes a parent to his children" (Gardner, 1989, p. 239). Clearly, statements such as this create much negative emotion in the child. In regard to visitation, the child in such a home becomes astutely aware of the mother's desire for the child to hate the father. To gain her acceptance, the child makes statements suggesting uncertainty or lack of desire to visit with the nonresidential parent. The mother suffering from Parental Alienation Syndrome may act in a "neutral" manner by communicating to the child that it is the child's decision whether or not to visit with the nonresidential parent. This "neutrality maneuver" helps to further alienate the father from his offspring by passively discouraging visitation; the child knows not to express desire to visit the "hated" parent.

Engendering guilt in the offspring is another common maneuver. A child who desires visitation with the father might be told, "how can you leave your poor old mother!" (Gardner, 1989, p. 241).

In regard to factors arising within the child, Gardner notes that the child's predivorce psychological bond with the residential parent is typically stronger than that with the nonresidential parent. Fearing potential abandonment from the residential parent, the child is more prone to join the mother in the parental alienation attempt. Gardner also believes that psychodynamic factors such as reaction formation and oedipal attributes sometimes are contributing factors to the development of alienation.

Finally, a variety of situational factors contribute to the development of the syndrome as well. For example, a child who views a sibling being punished for having expressed positive feelings towards the father will learn quickly not to express such feelings openly. A child who observes the mother verbally abuse the father may declare emotional preference for the mother for self-protection purposes.

Gardner notes that the Parental Alienation Syndrome varies in degree from case to case. While the overwhelming majority of adult cases are female, he believes that 90% of all custody battles reveal some aspects of the Parental Alienation Syndrome.

DIVORCE RELATED MALICIOUS MOTHER SYNDROME

Some cases of chronic visitation interference go beyond attempts at alienating a child from a parent. Turkat (in press) has reported on cases where the divorcing wife has attempted to get her divorcing or divorced husband fired from work, investigated for (falsely alleged) sexual abuse, publicly ridiculed, or physically harmed. From a variety of clinical and legal cases, Turkat (in press) has identified the Divorce related Malicious Mother Syndrome. The specific criteria for this disorder can be seen in Figure 1.

The disorder is characterized by the mother: (1) attempting to unjustifiably punish her divorcing husband; (2) interfering with the father's visitation and access to the child; and (3) engaging in a variety of malicious acts towards the husband, including lying and violations of law.

Turkat (in press) provides some dramatic examples of the kind of behavior engaged in by individuals suffering from Divorce Related Malicious Mother Syndrome: burning down the house of the ex-husband; falsely accusing the father of sexual abuse; manipulating mental health professionals to testify in court that the divorcing husband is in need of therapy (even when the mental health professional has never met the father); manipulating a secretary at a school to participate in kidnapping the child; informing her offspring that their father is not really their father; telling the father's boss, at his work location, that the father has abused his children; breaking into the residence of her divorcing husband and stealing important papers; and one woman who intentionally drove her car into the house of her divorced husband.

Divorce Related Malicious Mother Syndrome is a serious disorder. Turkat (in press) has noted that such individuals rarely see themselves as having a problem, are adept at manipulating others in the campaign against the father, and are skilled fabricators. The classification, etiology, and treatment of such cases is unknown.

FIGURE 1. Diagnostic criteria for Divorce Related Malicious Mother Syndrome. (Adapted from Turkat, in press, with permission of the publisher, Plenum Publishing, New York.)
A mother who unjustifiably punishes her divorcing or divorced husband by:

Attempting to alienate their mutual child(ren) from the father
Involving others in malicious actions against the father
Engaging in excessive litigation

The mother specifically attempts to deny her child(ren):

Regular uninterrupted visitation with the father
Uninhibited telephone access to the father
Paternal participation in the child(ren)'s school life and extracurricular activities


The pattern is pervasive and includes malicious acts towards the husband including:

Lying to the children
Lying to others
Violations of law


The disorder is not specifically due to another mental disorder although a separate mental disorder may coexist.


VISITATION INTERFERENCE AND THE JUDICIAL SYSTEM

The reader unfamiliar with divorce and custody proceedings may be perplexed as to why behaviors such as the ones cited above are permitted. Technically, they are not permitted. However, from a practical perspective, there is little that can be done to prevent such actions.

The legal system has a variety of attributes that unfortunately help to perpetuate child visitation interference by a parent who is dedicated to such interference. For example, most judges will demonstrate significant patience and "bend over backwards" to allow each side to adequately present the case at it's own pace. Unfortunately, the benefit of giving everyone his/her "day in court" slows the process considerably. Attorneys who wish to stall, postpone, or delay hearings have little difficulty doing so in most cares. Often, these are deliberate tactics utilized in a custody battle. Thus, a parent who might be charged with visitation interference may not have to appear before the judge on the issue for months after the fact.

An additional complicating factor is the expense. Attorney fees can run as high as $300 per hour or more. Few individuals can afford repeated appearances in court as the bills mount exorbitantly. This proves especially straining to a family that must now divide it's income and assets into two separate households.

A further complicating factor is that the court system can be powerfully manipulated by a good liar (Snyder, 1986). Research shows that detection of fabrication is generally poor (Ekman & O'Sullivan, 1991), and this provides an additional problem when it comes to child visitation interference. For example, a father who accuses the other parent of interfering with visitation may find that the other parent not only denies such interference but accuses the nonresidential parent of not appearing at designated visitation times. As there are typically no witnesses, the court is left in a quandary. Relatedly, a parent who has continually interfered with visitation may state in the courtroom that he or she will comply with the nonresidential parent's visitation request. Immediately following the hearing, the custodial parent returns to the visitation interference pattern, knowing that months may go by before a return to court.

An additional difficulty is that there is often a lack of potent consequences for custodial parents who engage in child visitation interference. A mother who interferes with visitation typically will be warned by the judge that she will be held in contempt of court. Unfortunately, this does not really amount to much more than merely "slapping her wrists." Rarely are custodial parents who interfere with child visitation imprisoned, penalized financially, or forced to lose primary residential custody of the children. As such, many parents who are aware of the court's ineffectiveness take full advantage. It should be noted that the judicial system is well aware of its own inadequacies in this area (see the Commission on Gender Bias in the Judicial System, 1992).

In recent years, the courts have facilitated growth of mediation either by mental health professionals or by attorneys as an alternative to the adversarial process of the courtroom. Unfortunately, it only takes one unreasonable or uncooperative parent to sabotage the mediation effort. The parent who utters words of cooperation and then violates these words by actions outside of the mediation room frustrates the process.

Finally, when mental health experts are asked to provide input to the court on visitation matters, the absence of sound scientific research findings hampers the contributions that such experts can make. Accordingly, judges often receive widely varying opinions which sometimes serves to depreciate the value of mental health input in the courtroom. At times, the mental health "expert" is in fact, incompetent (Turkat, 1993).

CONCLUSION

Each year millions of children are denied visitation with their nonresidential parent. Little is known about the nature of such interference, the causes of such interference, or how to treat such interference. Until this issue becomes the focus of scientific research, it would appear that psychologist input into the courtroom is significantly compromised. Given that millions of individuals are suffering, it behooves the profession to begin to address this important and perplexing problem.

REFERENCES

Arditti, J. A. (1992). Factors relating to custody, visitation, and child support for divorced fathers: An exploratory analysis. Journal of Divorce and Remarriage, 17, 23-42.

Children's Rights Council. (1994). Annual convention brochure. Washington, DC: Author.

Commission on Gender Bias in the Judicial System. (1992). Gender and justice in the courts: A report to the Supreme Court of Georgia. Georgia State University Law Review, 8, 539-807.

Ekman. P, & O'Sullivan, M. (1991). Who can catch a liar! American Psychologist, 46, 913-920.

Gardner, R. A. (1987). The parental alienation syndrome and the differentiation between fabricated and genuine child sex abuse. Creskill, NJ: Creative Therapeutics.

Gardner, R. A. (1989). Family evaluation in child custody mediations, arbitration and litigation. Creskill, NJ: Creative Therapeutics.

Hetherington, E. M., & Arasteh, J. D. (Eds.) (1988). Impact of divorce, single parenting and step-parenting on children. Hillsdale, NJ: Lawrence Erlbaum.

Hodges, W. F. (1991). Interventions for children of divorce (2nd. ed.) New York: John Wiley.

Keane, G. (1990). Florida divorce handbook. Sarasota, FL: Pineapple Press.

Kressel, K. (1985). The process of divorce. New York: Basic Books.

Shepard, N. (1992). Child-visiting and domestic abuse. Child Welfare, 71, 357-367.

Snyder, S. (1986). Pseudologia Fantastica in the borderline patient. American Journal of Psychiatry, 143, 1287-1289.

Turkat, I. D. (1993). Questioning the mental health expert's custody report. American Journal of Family Law, 7, 175-179.

Turkat, I. D. (in press). Divorce Related Malicious Mother Syndrome. Journal of Family Violence.

Correspondence should be addressed to Ira Daniel Turkat, PhD, Florida Institute of Psychology and University of Florida College of Medicine, 1225 Avenida Del Circo, Venice, FL 34285.


PDF version

Rights for Children of Divorce

by Pamela Espeland

Rights for Children of Divorce
If you are divorced or in the process of separating, you already know your kids are having a hard time. It's your responsibility to put their needs—physical and psychological—before your own. You can help your child through a divorce and their resulting reality by respecting their rights.

As a child of divorce, your child has the right to:

Be free of your conflicts and hostilities.
When you badmouth each other in front of your child, it tears them apart inside. Don't put your child in the middle or play them against the other parent. And don't burden them with your relationship problems. Those problems are yours, not theirs.

Develop a relationship with both parents.
Your child loves you both. They know you'll sometimes be jealous about that, but you need to deal with it because you're the adult.

Information about things that will affect their life.
If you're planning to divorce, your child has a right to know, just as soon as is reasonable. Likewise, if you're planning to move, get remarried or any other major life change, they have a right to know about that, too.

Be protected from bad information.
This means you shouldn't tell your child about sexual exploits or other misbehavior by the other parent. And don't apologize to them—for the other parent—because this implies a negative judgment of the other parent. If you apologize to your child, apologize for yourself.

Their own personal space in both homes.
This doesn't mean your child can't share a room with a brother or sister, but it does mean that they need you to give them some space and time of their own. Your child also needs some special personal items in his or her own space. And this might include a picture of the other parent. Don't freak out about it.

Physical safety and supervision.
You may be very upset about your divorce, but that doesn't mean you should neglect your child's needs. Your child doesn't want to be home alone all the time, while you're out dating someone new.

Spend time with both parents, without interference.
Your child's right to spend time with each of you shouldn't depend on how much money one of you has paid the other. That makes your child feel cheap, like something you might buy in a store.

Financial and emotional support from both parents, regardless of how much time your child spends with either one of you.
This doesn't mean your child expects twice as much as other kids get. It just means you should stop worrying about what they got from the other parent and focus on what you're providing.

Firm limits and boundaries and reasonable expectations.
Just because he or she is a child of divorce doesn't mean your child can't handle chores, homework or other normal responsibilities. On the other hand, keep in mind that even though there may be younger siblings (or stepsiblings), your child is not the designated baby-sitter.

Your patience.
Your children didn't choose to go through a divorce. They didn't choose to have their biological parents live in two different homes, move away, date different people and in general turn their world upside-down. More than most children's, your children's lives have been beyond their control. This means they'll need your help and support to work through any control issues.

Be a child.
Your child shouldn't have to be your spy, your special confidant or your parent. Just because you and your ex now hate to talk to each other, your child shouldn't have to be your personal message courier. Your child has a right to be more than a child of divorce. Your son or daughter has the right to be a child whose parents love them more than they've come to hate each other.

Source: http://www.parentsconnect.com/articles/rights_for_children_of_divorce.jhtml

Taken Into Custody By Divorce

BY Jennifer Roback Morse

November 25 - December 1, 2007 Issue | Posted 11/19/07 at 3:13 PM

Most Americans have made their peace with no-fault divorce, believing easy divorce to be an enhancement of individual liberty. But a new book by Stephen Baskerville argues that permitting unilateral divorce allows an unprecedented scope for government intrusion into ordinary people’s lives. Taken Into Custody has several breakthrough insights.

First, no-fault divorce frequently means unilateral divorce: One party wants a divorce against the wishes of the other, who wants to stay married. This fact means that the divorce has to be enforced. The coercive machinery of the state is wheeled into action to separate the reluctantly divorced party from the joint assets of the marriage, typically the home and the children. Involving the family court in the minutiae of family life amounts to an unprecedented blurring of the boundaries between public and private life.

People under the jurisdiction of the family courts can have virtually all of their private lives subject to its scrutiny. If the courts are influenced by feminist ideology, that ideology can extend its reach into every bedroom and kitchen in America.

Thus, the social experiment of no-fault divorce, which was supposed to increase personal liberty has had the unintended consequence of empowering the state.

I had an unusual opportunity to see this first-hand last summer when I did a Continuing Legal Education workshop for judges. Most of the judges had significant experience with family courts, so they were unusually well-informed. My audiences are usually amazed when I point out that family courts perpetrate greater invasions of personal privacy than any other governmental agency. Not the judges. I had expected some resistance from them on this point. After all, they are the ones doing the intruding.

When I ran through my usual litany of courts telling fathers how much money they have to spend, how little time they get to spend with their kids and who gets to spend Christmas Day with the kids, the judges were all shaking their heads. I asked: “So, do you enjoy that part of your jobs?” The audible moaning said it all: They hate that part of their jobs.

Audiences are sometimes surprised to learn that women initiate most divorces. They are even more surprised when I tell them that women aren’t necessarily worse off economically after divorce. After all, “the most quoted demographic statistic of the 1980s” was the claim that women’s standard of living falls by 73% after divorce, while men’s rises by 42%.

I usually have to take some time to refute that claim. But the judges already knew that. They all started shaking their heads when I flashed those statistics on the screen for the purpose of refuting them.

One of the judges got exasperated. He stood up and said, with obvious disgust in his voice, “These women want me to throw their husbands out of the house, make him pay child support, while she keeps the kids to raise herself without interference from him.”

General nods of agreement all around the room.

No fathers’ rights advocate could have said it better.

But fathers’ rights advocate Stephen Baskerville has harsh words to say about the entire no-fault industry, including the judges. The court-appointed therapists, the domestic violence experts, the visitation supervisors, the teachers of parenting classes, all these experts seem to be there to help divorcing families. But on Baskerville’s telling, they simply extract additional payments from the family, and do nothing to save the marriage.

He reports that even mediators find that they are not allowed to try to preserve the marriage. Their role is simply to talk the reluctant party into acquiescing. Baskerville represents all these professionals, including the lawyers and judges, as having a self-interested motive in stoking the flames of personal resentments and maintaining the divorce industry.

What then, of my judges, who were obviously disgusted with the system and their role in it?

I have also talked to many family law attorneys who are fed up with narcissistic and myopic clients. How can it be that all these people are keeping the system going out of their own self-interest, and yet profess disdain for that same system?

I think the answer lies in what economists call perverse incentives.

No one likes the actual outcome of the system, but no one has an incentive or the ability to change it. So people go along, following the rules as laid down, trying to make marginal improvements to the best of their ability, and still being sickened by the whole sight. The incentives are so perverse that it is as if everyone were motivated by a desire to create as many divorces as possible.

Baskerville has done a great service in laying out these twisted incentives in detail. I hope that family law practitioners will read this book with an open mind, and not take it personally when Baskerville accuses them of bad faith. He may be over the top about people’s motivations. But his analysis is essentially correct.

The public is getting past the “happy talk” about “good divorces,” because the children of divorce are finally telling their stories. We desperately need to get past our fatalism about the inevitability of divorce.

Taken Into Custody makes it crystal clear that the law has created incentives to divorce. Therefore, the law can be changed to reduce those incentives. The publication of Taken Into Custody could be the turning point in restoring some balance to family law. If you care about the condition of marriage in America, read this book.


Jennifer Roback Morse is the senior research fellow in Economics at the Action Institute and the author of Smart Sex: Finding Life-long Love in a Hook-up World. Action Institute

Source: http://www.ncregister.com/site/article/7342

Marriage Breakdown Costs Taxpayers at Least $112 Billion a Year

First-Time Research Reveals Staggering Annual Taxpayer Costs for Divorce and Unwed Childbearing

WASH. D.C. In first-ever research, a new report quantifies a minimum $112 billion annual taxpayer cost from high rates of divorce and unmarried childbearing. It identifies national, state and local costs which account for more than $1 trillion in the last decade. This landmark scholarly study, entitled “The Taxpayer Costs of Divorce and Unwed Childbearing: First-Ever Estimates for the Nation and All 50 States,” was released on April 15th at the National Press Club by four renowned policy and research groups—Institute for American Values, Georgia Family Council, Institute for Marriage and Public Policy, and Families Northwest.

“This study documents for the first time, that divorce and unwed childbearing—besides being bad for children—are also costing taxpayers a ton of money,” said David Blankenhorn, president of the Institute for American Values. “Even a small improvement in the health of marriage in America would result in enormous savings to taxpayers,” he continued. “For example, a 1 percent reduction in rates of family fragmentation would save taxpayers $1.1 billion.”

“These costs are due to increased taxpayer expenditures for anti-poverty, criminal justice and education programs, and through lower levels of taxes paid by individuals whose adult productivity has been negatively affected by increased childhood poverty caused by family fragmentation,” said principal investigator Ben Scafidi, Ph.D., economics professor at Georgia College & State University.

“Prior research shows that marriage lifts single mothers out of poverty and therefore reduces the need for costly social benefits,” said Scafidi. “This new report shows that public concern about the decline of marriage need not be based only on ‘moral’ concerns, but that reducing high taxpayer costs of family fragmentation is a legitimate concern of government, policymakers and legislators, as well as community reformers and faith communities.”

“This report now provides the basis for a national consensus that strengthening marriage is a legitimate policy concern,” said Blankenhorn. “The report’s numbers represent an extremely cautious estimate, a lower-bound figure, and have been vetted by a group of distinguished scholars and economists who have attached their names as advisors to this report.”

“These numbers represent real people and real suffering,” said Randy Hicks, president of Georgia Family Council. “Both economic and human costs make family fragmentation a legitimate public concern. Historically, Americans have resisted the impulse to surrender to negative and hurtful trends. We fight problems like racism, poverty and domestic violence because we understand that the stakes are high. And while we’ll never eliminate divorce and unwed childbearing entirely, we can certainly be doing more to help marriages and families succeed.”


Fact Sheet

The Taxpayer Costs of Divorce and Unwed Childbearing
First-Ever Estimates for the Nation and All 50 States *

Long-standing Research Shows:

• Over the last forty years, marriage has become less common and more fragile. Between 1970 and 2005, the proportion of children living with two married parents dropped from 85 percent to 68 percent, according to Census data. (page 7*)

• More than a third of all U.S. children are now born outside of wedlock, including 25 percent of non- Hispanic white babies, 46 percent of Hispanic babies, and 69 percent of African American babies. (page 7*)

• Potential risks to children raised in fragmented families have been identified to include poverty, mental illness, physical illness, infant mortality, lower educational attainment, juvenile delinquency, conduct disorders, adult criminality and early unwed parenthood. (page 9*)

• To the extent that family fragmentation causes negative outcomes for children and adults, it also leads to higher costs to taxpayers through higher spending on antipoverty programs and throughout the justice and educational systems, as well as losses to government coffers in foregone tax revenues. (page 9*)

• Marriage can help to reduce poverty because there are two potential wage earners in the home, because of economics of scale in the household, and possibly also because of changes in habits, values, and mores that occur when they get married. (page 10*)

• The idea that family fragmentation contributes to child poverty has been studied extensively and is widely accepted. (page 10*)

• Earlier studies conclude that marriage would reduce poverty among single mothers substantially, between 65 to 80 percent. (page 10-11*)

Calculating the Taxpayer Costs

• This report adopts the simplifying and extremely cautious assumption that all of the taxpayer costs of divorce and unmarried childbearing stem solely from the negative effects family fragmentation has on poverty in female-headed households. (page 12*)

• Several calculations are used to estimate the taxpayer costs—foregone tax revenue in income taxes, FICA (commonly called social security) taxes, and state and local taxes as a result of family fragmentation, as well as direct costs to the taxpayers from increased expenditures on local, state, and federal taxpayer-financed programs, driven by increases in poverty, (page 12*), and costs to the justice system (page 16*).

• Assumption 1: Marriage lifts zero households headed by a single male out of poverty.

Assumption 2: Marriage lifts 60 percent of households headed by a single female out of poverty.

Assumption 3: The share of expenditures on government antipoverty programs that is due to family fragmentation is equal to the percent of poverty that results from family fragmentation. (page 13*)

These assumptions err on the side of caution, derived from earlier studies (among others, the Thomas and Sawhill study “For Richer or For Poorer.”) These assumptions are more likely to lead to an underestimate than an overestimate of actual taxpayer costs of family fragmentation. Details, footnotes, and graphs are located on pages 13-14 of the report.

• Family fragmentation costs U.S. taxpayers at least $112 billion each year, or over $1 trillion
dollars per decade. This estimate includes the costs of federal, state, and local government
programs and foregone tax revenues at all level of government as seen itemized in Table 7.
(pages 17*)

Report Conclusions

• Public concern about the decline of marriage need not be based only on the important
negative consequences for child well-being or on moral concerns, as important as these
concerns may be. High rates of family fragmentation impose extraordinary costs on
taxpayers. Reducing these costs is a legitimate concern of government, policymakers, and
legislators, as well as civic leaders and faith communities. (page 20*)

• Even very small increases in stable marriage rates would result in very large returns to taxpayers. For example, a mere 1 percent reduction in rates of family fragmentation would save taxpayers $1.1 billion annually. (page 20*)

• Texas, for example, recently appropriated $15 million over two years for marriage education and other programs to increase stable marriage rates. If such a program succeeded in increasing stably married families by just three-tenths of 1 percent, it would still save Texas taxpayers almost $9 million per year. (page 20*)

• Because of the very large taxpayer costs associated with high rates of divorce and unwed
childbearing, and the modest price tags associated with most marriage-strengthening initiatives, state and federal marriage-strengthening programs with even very modest success rates will be costeffective for taxpayers. (page 21*)

• For total poverty, child poverty, family structure and cost estimates by State (see Report* pages 39, 40 and 41).


Source: The Taxpayer Costs of Divorce and Unwed Childbearing First-Ever Estimates for the Nation and All Fifty States.

Timmy Visits Daddy - Parental Alienation Animation

Divorce truly harms a child forever. This BBC 3 episode of an animated television series called “Monkey Dust”, an English satirical cartoon, shows how parental alienation is becoming a mainstream societal issue.

Parental Alienation is grossly de-emphasized in family court. Our hope is that equal parenting will minimize a child’s anxiety and psychological damage. This is clearly shown in the video.

Warning: Parental Advisory

The pain we suffer from Parental Alienation

THE PROCESS OF MODERNISATION OF FAMILY LAW IN EASTERN AND WESTERN EUROPE

THE PROCESS OF MODERNISATION OF FAMILY LAW IN EASTERN AND WESTERN EUROPE: Difference in Timing, Resemblance in Substance

EJCL
Vol. 4.2 September 2000

by Masha V. Antokolskaia(1)



Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use.



Contents
Introduction
1. The Catholic West and the Orthodox East: The formation of a uniform medieval canon of family law
2. From pre-Christian law via canon unification to modern times: A helical process?
3. The medieval dogmas: Obstacles to modern person-orientated family law
4. From the medieval uniform law to the diversity of modern times: Difference in timing, resemblance in substance
Conclusion
Notes
Literature


Introduction

Last year, I was asked to make a contribution to a report for the Netherlands Comparative Law Association on the prospects for the harmonisation and unification of family law in Europe.(2) This obliged me to scrutinise the stereotype argument that harmonisation and unification of family law is unfeasible because of unbridgeable historical and cultural differences between the various European countries. Going back in time in search of the roots of the diversity of current family law in Europe, I became highly interested in the correlation between the level of modernisation of family law and the influence of concepts inherited from medieval canon law. This correlation has been noticed by several scholars, on whose work I strongly rely.(3) What I suggest in this article is that this correlation is the key to important insights into the historical development of family law in Europe that allow a fundamental re-evaluation of the aforementioned argument of unbridgeable differences. I will devote some special attention to the post-Revolutionary reforms in Russia, because I have noticed that many attempts to explain the development of family law do not include them, or treat them as excesses, and place them outside explanatory theories. I think that Russian post-Revolutionary developments can and should be placed within an explanatory framework , and I will try to show how they can fit within such a framework. I should mention that, at the moment, my work on this subject is in a rather preliminary stage. The suggestions I make in this article are based on a preliminary study which has inspired me to undertake more extensive research in the coming years.

What I will submit can be summarised as follows:

1. The family law of the whole European continent before the Reformation was mainly uniform canon law. It consisted of two separate systems, Catholic and Orthodox, which in fact were very much alike. The unification of canon family law in the Catholic part of Europe was achieved around the 12th century, and brought about dramatic changes. In Orthodox Europe, the process of unification, although more spread out in time, led to almost the same results.

2. The development of family law from the end of the Middle Ages until today can be seen as the gradual abandonment of concepts of canon family law. Pre-ecclesiastical family law and current family law have more similarities between them than both have in relation to ecclesiastical family law. In a way, the process of distancing from the canonical heritage can be seen as a return to the informality of pre-ecclesiastical family law.

3. The process of gradually abandoning the concepts of canon law was essentially the same in all European countries, and took place under the influence of the same liberal ideas. The general trend can be described as the gradual change from a transpersonal to a personal approach. This process, however, did (and still does) not take place simultaneously. The major differences in the history and current state of the family law of the European countries can be considered differences in the timing and in the extent of this process. In countries with a persisting strong religious influence, such as Greece, Italy and Ireland, this process has plodded along wearily and slowly. In Scandinavia and Eastern Europe, where secularisation took place at an earlier stage and canonical concepts did not obstruct reform, the process was speedier and more radical. But the general direction of the changes was and is undoubtedly the same everywhere.

4. The composition of the group of countries where family law had already been radically revised at in the beginning of the 20th century - Scandinavia, the Soviet Union and Portugal - reveals a discrepancy between the level of economic development and the modernisation of family law,(4) and suggests a primary role of ideological factors such as breaking with religious concepts and the influence of liberal ideas.


1. The Catholic West and the Orthodox East: The formation of a uniform medieval canon of family law


In Western Europe, the formation of uniform canon rules on marriage and divorce had been completed by the beginning of the 12th century by the reforms of Pope Gregory VII (1073-1084). In spite of the schism of 1054 that separated the Orthodox countries from the West, a comparable formation process took place in the Orthodox world around the same time. The ecclesiastical unification concerned mainly the rules on marriage and divorce, but because of the crucial importance of those institutions for the determination of the legal position of offspring, for inheritance and for the rights to family property, the whole area of family law was influenced. Therefore it is possible to speak, with some reservations, of medieval canon family law in general.

The Gregorian reform was in many aspects the final point in the formation of uniform ecclesiastical family law,(5) but the beginning of the formation process was almost 600 years earlier. In the first centuries of Christianity, the Church did not pay much attention to marriage. The dominant ascetic and eschatological attitude in the early Church led to the disapproval of sexuality and the appreciation of celibacy above marriage.(6) The early Church did not have its own rules on marriage but tolerated the marriages entered into according to the secular law of the spouses (Roman law, Jewish law or Barbarian customary law).(7) Although different in many aspects, Roman and customary law had at that time as a common feature the absence of any obligatory civil or religious formalities for the conclusion of a marriage. Marriage was a matter for the family and did not fall under the competence of the state or of religious authorities. In Roman law, legal marriage was created by the mutual consent of the spouses (in the absence of marriage impediments).(8) As Christianity, originating as the religion of a small group of dissidents, eventually became the state religion of the Roman Empire, the ascetic disapproval of marriage gradually diminished.(9) The ascetic attitude came into conflict with a more worldly trend that strived towards the sacralisation of marriage, and this finally became the predominant attitude.

The contradiction between these two approaches may explain the slow pace with which ecclesiastical marriage law came to be formulated. In the 4th century, the tradition of blessing 'perfect' marriages by a priest came into existence.(10) Initially, that rite was of no significance for the lawfulness of the marriage. Later, it became one of the possible forms of the formation of a marriage. In Byzantium, Church solemnisation became obligatory in 893 by an Act of Emperor Leo VI. Around the 12th century, this rule was accepted in the whole Orthodox region.(11) The Roman principle of consensus facit nuptias was maintained, but Church solemnisation was added as a second constitutive element of a valid marriage. At the same time, the Orthodox Church proclaimed marriage to be a sacrament. Consensus and Church solemnisation together made marriage a sacrament.(12)

In the Catholic part of Europe this process took even longer. In post-Roman times and even in Carolingian times (8th to 10th century), the Church blessing was unusual and marriages were celebrated according to local customs.(13) At the time of Pope Gregory VII, the development of the concept of marriage as a sacrament was completed(14) and the Church ceremony was prescribed, but it was only after the Council of Trent that Church solemnisation actually became a prerequisite for the legal validity of a marriage. The difference with the Orthodox doctrine was that it was not blessing and consensus together, but rather consensus alone which made marriage sacred. The priest was more a witness than a main actor in the ceremony.(15)

The same picture arises if we look at the changes in the attitude towards concubinage. In Roman society, concubinage was accepted for unmarried persons as a secondary form of conjugal union. Among some peoples that inhabited Europe in post-Roman times concubinage was accepted even for a married man.(16) The early Church was also tolerant of concubinage. The concubine was a member of the household of the man, and her children were not entirely excluded from the family structure.(17) In Western Europe, the Church only started to oppose concubinage in the Carolingian era. Concubinage occurring simultaneously with marriage became impossible, and the children of a concubine could only inherit in the absence of offspring from the lawful marriage.(18) Around the 11th and12th centuries, the rules on marriage law became so imperative in both parts of Europe that concubinage left the stage completely. The concubine became no more than a mistress, and her children were bastardised.(19)

As marriage became more and more institutionalised, divorce law became more and more restrictive. In pre-Christian times, there was a considerable freedom to divorce. In classic Roman law, divorce, as well as marriage, was a private, informal transaction.(20) Before the restrictive rules of Augustus and the subsequent reform by Constantine, both divorce upon mutual consent and unilateral divorce were possible. Divorce upon mutual consent survived the reforms, the grounds for unilateral divorce were strictly limited.(21) The Christian Church has shown an aversion towards divorce from the very beginning. Initially, the Church refused to bless all second marriages because it was held that the spiritual ties created by marriage survived not only divorce but also the death of one of the spouses. Although the New Testament mentions the possibility of repudiating an adulterous wife,(22) there was no uniformity on this point in the Catholic and Orthodox worlds. The Orthodox Church accepted, under pressure from the Byzantine emperors,(23) a limited possibility for divorce and remarriage. The Catholic Church tolerated divorce and remarriage until deep into the Middle Ages. The indissolubility of marriage was declared for the first time in the 8th century. But until the Gregorian reform, there was no clear border between annulment and dissolution of marriage. Only around the 12th century did the indissolubility of marriage become really enforced. At that time, the divorce and annulment of marriage became the exclusive affairs of the Church. In the case of adultery, separation was the only option, with no possibility of remarrying. In the case of violation of the prohibited degrees of consanguinity, the marriage was null and void. This meant that it was considered never to have taken place, and the sacrament was considered never to have been given. That is why in such a case (re)marriage was possible.(24) This was more than a technicality. In the course of the Middle Ages, the prohibited degrees of consanguinity, affinity and spiritual affinity (created by baptising) were extended in such a manner(25) that most noble families were related to each other within a prohibited degree.(26) Although the priests were obliged to make a genealogical inquiry before celebrating marriage, the prohibitions were often violated.(27) Sometimes this was wilfully done to ensure the possibility of dissolving the marriage. Duby cites an illustrative letter from a 12th century knight who remarks about his prospective wife: 'Without any doubt she is related to me within the third degree. That is not close enough to stay away from her. But if I want, and if she does not suit me, I can, on the basis of this relationship, obtain a divorce.'(28) As a result, the difference between the Catholic and Orthodox canon rules on the termination of marriage was less significant than it seems. The possibility of annulling an endogamous marriage in Western Europe had almost the same practical meaning as the limited possibility of divorce in the case of adultery in Eastern Europe.

As this brief summary of the formation of medieval ecclesiastical marriage law shows, Catholic and Orthodox canon marriage law was, in spite of a formally different approach to the constitutive elements of marriage and to the admissibility of divorce, in effect very much alike. Both gave marriage a closed, strongly institutionalised character.


2. From pre-Christian law via canon unification to modern times: A helical process?


In a way, the comparison of medieval ecclesiastical marriage and divorce law with pre-Christian law and current law evokes the image of a circular movement, or better still, of a spiral. Pre-Christian family law, with its informal rules on the formation of marriage, easy divorce, tolerance towards concubinage and acceptance of illegitimate children, resembles modern family law much more than medieval law. The difference between pre-Christian and modern law is of course tremendous because we are talking about completely different societies, but still the similarities are striking. The development of marriage and divorce law from the Middle Ages to the present can be seen as the gradual return to the informality of pre-Christian times, but on a different level; thus the use of a spiral as a metaphor. The most illustrative examples of this return to informality are some radical changes introduced during the French and Russian Revolutions.

What is the place of the medieval canonical unification in the overall line of the development of family law? What were the reasons for the unification? Should it be seen as a temporary regress or a necessary step forward? There is no simple answer to these questions. It was a crucial period in the history of family law, a time of unity when there were as yet no significant differences, a kind of ius commune of family law. It was also the period in which many concepts were formed that have been dominating family law almost until the present. That is why medieval law is so often, consciously or unconsciously, used as a point of reference in debates about the modernisation of family law.(29) I think that medieval family law should certainly not be seen as a kind of degradation or regress. It perfectly suited the medieval society of the time. The political background of the formation of this law was the political power of the Church that was strong enough to introduce and to enforce uniform rules. The ideological background of the unification was the - at that time still almost undisturbed - unity of the Christian belief. Mystique and dogmatism were inherent to the society of that time. As soon as the canon concept of marriage as a sacrament had taken root, it was accepted by the population as self-evident.

The political and ideological influence of the Church may explain the fact of the unification, though not the substance of the uniform law. To explain this substance is not easy. For some innovations the background is more or less clear. To declare marriage a sacrament granted it an appropriate position in the set of values of that time. The institutionalisation of marriage, the banning of concubinage and the bastardisation of children born outside wedlock cannot be understood apart from the so-called feudal revolution: the introduction of the feudal system with the right of succession belonging to the first-born as its corner stone. Around the 11th century, the horizontal, cognate family structure of Carolingian times, in which male and female heirs were equal, was replaced by the vertical, agnate family structure, in which only the male line was important and male heirs were privileged.(30) The goal of this change was to limit the amount of heirs in order to prevent the further division of land. The restrictions of family law served the same purpose.

Other features of canon law are more difficult to explain. Upholding the requirement of free consent to marriage clearly ran against the interest of the feudal families to have as much room as possible for the arrangement of strategic marriages between the noble clans. The only explanation I can suggest lies in Christian ideology on the issue of free consent. The free will as one of the central concepts of Christian philosophy was required for the other sacraments, baptising and communion. It seems logical that marriage, once proclaimed as a sacrament, also fell under this requirement. The impossibility of repudiating a childless wife and to remarry, or to conclude endogamous marriages, also ran against the crucial needs of the feudal families, because it made it more difficult to keep the land within the clan. In this light, the - to my taste, a bit too cynical - explanation by Goody, who suggests the Church's craving for power behind these changes,(31) is not convincing. By declaring marriage to be indissoluble, the Church diminished its own possibilities of profiting from its prerogative to grant or refuse divorce. The only explanation I can suggest is that the concept of marriage as a sacrament compelled the Church to consider it to be indissoluble.

Though the background of the medieval unification leaves us with more questions than answers, one can observe that it was rather multicoloured. Economic and ideological factors were interweaving and complementing one another.


3. The medieval dogmas: Obstacles to modern person-orientated family law?


The uniformity of canon marriage and divorce law only lasted until the Reformation. From then on, the regulations of the various Protestant Churches and the secular laws of the advancing national states led to increasing divergence, although the direction of the changes was essentially the same. The end of uniformity did not mean the end of the dominance of the ecclesiastical concepts of the Middle Ages. Although the Protestant countries rejected the sacral character of marriage and the principle of its indissolubility, most of the canon heritage survived. As Glendon puts it: '[S]ecular government simply took over much of the ready-made set of the canon law.'(32) With the differentiation within the Church and the Enlightenment, ideological pluralism increased, and it became more and more difficult for the state to justify the canonical concepts it had taken over. The unity of ideology and belief, so typical for the Middle Ages, was now gone. Canonical concepts such as marriage as a monogamous union for life, the unacceptability of concubinage, the prohibition of consensual divorce and the exclusion of illegitimate children from the family structure, gradually lost their self-evidence. Nonetheless, they were upheld for a considerable time, much longer than other medieval political and religious dogmas. Subject to serious discussion for the first time during the French Revolution, they again ruled almost uncontested for a long time thereafter. They remained an inseparable part of the status quo. In the absence of a rational explanation (apart from an appeal to religion), these concepts were partly accepted as self-evident because of an unawareness that they had not always existed; they were partly seen as features of a highly developed civilisation. They only came seriously under fire towards the end of the 19th century.

One of the possible reasons for this late liberalisation of family law is the remarkable time difference between the progress of liberal ideas about public life and the progress of the same ideas about life in the private sphere. The ideas of the Enlightenment were primarily focused on the rights and freedoms of the individual as a citizen, not of the individual as a private person. The family remained part of the private domain where individualism, personal freedom and equality were acknowledged much later. As O'Donovan observes: 'Readings of the major social contract theorists from Hobbes to Rousseau confirm that the family is taken as natural, as pre-given. Marriage, foundation of family, ensures the subordination of women, which is presented as inevitable. The free individuals who contact in the social contract are male.'(33)

On the same grounds, Okin doubts the universalism of Kant's ethic. Kant's use of 'gender-neutral terms' serves, in her eyes, only to cover the fact that he did not extrapolate his conclusions to women.(34) The same applies to classical liberalism.(35) Although Locke was one of the first to defend the contractual nature of marriage, he thought it to be self-evident that women and children fell under the authority of men.(36) Only in the 19th century did Mill explicitly apply liberal ideas to women. But even he remained reticent about one of the most prominent dilemmas of that time: the admissibility of consensual divorce.(37) Feminist writers criticised Mill because his striving for female equality still mainly concerned public life. Private life and the family remained largely on the periphery of his attention.(38)

Feminist criticism of liberalism usually focused on the fact that the inequality of women was generally neglected. But when things went wrong, the family was a cage for two. Conservatism in family and private life was perhaps more to the detriment of women than of men, but it did affect men too. The man was equally deprived of the possibility of escaping a broken marriage or to legitimise children born out of wedlock.

The long-standing disregard of the family and the private sphere by liberal philosophy was part of the ideological background of the phenomenon that medieval concepts prevailed much longer in family law than in society in general. It also probably forms at least a part of the explanation for the fact that the first and most radical reforms of family law did not take place in the countries that were most influenced by classical liberal philosophy.(39)

Also illustrative of the late liberalisation of family and private life is the development of the ideas about the place of romantic love. In days gone by, the family was the domain of duties, not of feelings. Affection was desirable but not necessary. With the growth of prosperity and the change of the social function of the family, which no longer formed the basic economic unit,(40) the pressure imposed by duties diminished and more room was given to personal freedom. For the first time in history, romantic love entered the family. Before that time, the place for romantic love was normally envisaged outside the family. The courtly love of the troubadours was not directed towards one's own spouse. Tristan and Isolde, Lancelot en Guinevere were lovers, not spouses. Only in the 19th century did romantic love raise its banner within the family. The literature of that century shows a wide range of desperate conflicts between romantic love and one of the central canonical dogmas: the inadmissibility of consensual divorce. Galsworthy's Forsyte Saga, Flaubert's L'Éducation sentimentale and Tolstoy's Anna Karenina and The Living Dead are just a few well-known examples. This conflict raged for 150 years until only in the 1960s, with the acceptance of consensual divorce, love became the true basis for the family.

With individualism and personal freedom invading the family, the ideas concerning its social function and its whole image changed. The family came to be regarded as a union based on love, its primary purpose being to serve the happiness of its members. This change from a transpersonal to a personalistic approach is, to my mind, the most important transformation that has occurred in family law over the last two centuries. The essence of transpersonalism is the sacrificing of the interests of individuals to abstract values. This attitude was typical of medieval society, but in the private sphere it has dominated well into modern times. Family law was one of its last resorts. An everyday example of the endurance of transpersonalism can be found in the words of the Dutch Minister of Justice delivered in 1947, who stated that '[t]he acceptance of a monogamous marriage as the socially recognised form of cohabitation of man and woman, logically brings about that a difference must be made between children in and out of wedlock . . . Not because the legislator does not have any compassion with these indeed innocent children . . . but because the interest of society as a whole in the preservation of the respect for the institution of marriage, has priority over the individual interests of those persons'(41). The abstract interests of society as envisaged in this purely moral judgement concerning monogamy is given priority over the interests of innocent children. That is transpersonalism pur sang. This approach, prevailing until so recently, is still based on the medieval concept of marriage, although the author himself will hardly have been aware of this link.

The personalistic approach is also as old as the world itself. It is one of the cornerstones of Christian philosophy.(42) The essence of personalism is that the interests of the individual receive priority over abstract moralistic values. Because the abstract values in question were based on the old patriarchal family morals inherited from the Middle Ages, the shift to the personalistic attitude is often described as the liberalisation of family law from the influence of morality.(43) In fact, family law was merely released from the old family morals in favour of a new, person-orientated morality, based on an ideology of tolerance.(44) The moral dimension of family law is inevitable: the choice for the individual and his/her interests is the choice for a morality of another kind.(45)


4. From the medieval uniform law to the diversity of modern times: Difference in timing, resemblance in substance


The liberation from the medieval heritage took place in all European countries without exception, and is not entirely complete even today. The driving forces (notions of personal freedom, autonomy and the equality of men and women) and the direction (towards a person-orientated family law) were the same everywhere, but the process was far from being synchronised in the various countries.(46) The beginning of the 20th century witnessed an accelerating process of liberalisation of family law that had previously dragged on so slowly. From that time onwards, a distinction can be made between countries in the vanguard and those in the rearguard. The Scandinavian countries, the Soviet Union and the Eastern European countries led the way, the South European countries held up the rear, and the rest of Europe can be placed somewhere in between.(47)

The countries where a radical reform of family law took place earliest were Portugal, Scandinavia and the Soviet Union. For those who try to explain the development of family law by way of economic advancement, the composition of this group of countries must be something of a mystery. Of all places, it was in agrarian Catholic Portugal that, after the Revolution of 1910, the first radical changes to marriage law were introduced.(48) The reforms were overturned during the Salazar dictatorship and had no lasting influence in Portugal nor in that region generally. I think it is noteworthy that these reforms were brought about by a revolution that temporarily diminished the influence of the Church and the ecclesiastical concepts of family law.

Scandinavia

Another region where a far-reaching transformation of family law took place early on is Scandinavia. During the first stage of reform, approximately from 1909 until 1929, the rules regarding divorce, matrimonial property and the position of illegitimate children were substantially modernised.(49) In contrast to French, Portuguese and Soviet revolutionary law, the transformations that took place in the Scandinavian countries were not the result of a social revolution, but rather the product of a gradual, evolutionary process of liberalisation. By the end of the period mentioned above, the family law of the Scandinavian countries was significantly more modern than in most other Western European countries. Several authors have tried to explain this phenomenon. This is not made any easier by the fact that the Scandinavian countries did not have the most developed economy, nor the strongest liberal influence.(50) A possible factor could have been the relatively high level of secularism.(51) The ideological basis for the reforms was formed by the combination of two dominant ideological movements: the liberals and the social democrats.(52) Rheinstein typifies the Scandinavian legislation of that time as 'typical products of liberalism'.(53) Bradley, in his extensive work on Scandinavian Legal Culture,(54) elaborates on the impact of the ideas of equality, of liberalism and of the first wave of feminism. Although to me it seems something more than coincidence that powerful expressions of these ideas such as Ibsen's A Doll's House and The Lady from the Sea originated from that very region, these ideas were definitely not unique to Scandinavia. Noteworthy in this respect is that the ideals of the liberals and the social democrats, so divergent when it comes to politics and economics, were so much alike when it came to family policy and the emancipation of women.(55) Typical is also that in Scandinavia the liberal ideas at that time were not confined to public life but already involved private life, and the reform of the family was considered a matter of high political priority.(56) Perhaps a combination of these factors, together with a favourable political climate, made Scandinavia one of the first regions where family law was radically modernised.

The Soviet Union

Another region where early and radical transformations of family law took place was the Bolshevik Soviet Union. The modernisation of family law was considered so urgent that reforms were initiated immediately after the 1917 Revolution, in the middle of the turmoil of the civil war. In pre-Revolutionary Russia, civil marriage and divorce did not exist. People were subjected to the ecclesiastical rules of their confession. For the largest part of the Russian population this meant the canonical rules of the Orthodox Church. In 1917, the Bolsheviks introduced civil marriage as the only legal form of marriage, together with the most undemanding divorce procedure of that time, proclaimed the full legal equality of women, abolished all distinctions in the legal status of legitimate and illegitimate children, and introduced the paternity action.(57) It was as if the prison gates had been opened: during the first months after these reforms, in Moscow alone 5,000 divorce petitions were filed.(58) Later on, the reforms went even further. In 1926, informal marriage was given the status of a legal marriage. The official registration of marriage was not abolished but lost its constitutive meaning and was considered merely a formality that was not indispensable for the creation of a legal marriage.(59) The only constitutive element of marriage was, as in Roman society and in the early Middle Ages, the consensus of the parties. Marriage became a private formless transaction, as it had been in Roman law since the classical period. This, of course, had a great impact on divorce procedure. Divorce before the registration officer (the only form of divorce at that time) was considered just a formality: an optional form for the termination of both registered and unregistered marriages. Marriage came to an end not by the pronunciation of divorce by an official, but rather by the declaration of the will of one or both of the spouses. This very much resembles pre-Constantine Roman law. Neither the summoning nor the appearance of the other spouse was considered essential. If one of the spouses did not show up at the registration office, divorce was not suspended, but the absent spouse was simply informed about the termination of his or her marriage by letter (the so-called 'divorce by postcard'). This brings to mind the Roman divorce letter (repudium).

What were the reasons for these rapid and radical reforms? Why did the Bolsheviks give such priority to the reform of family law? I would suggest two main explanations. The first is that the communists considered the Church to be their most dangerous rival in their struggle for the people's minds and souls. The secularisation of family law was considered to have the highest priority because it was a crucial instrument by which to roll back the influence of the Church. The militant atheism of the Bolsheviks may account for the radical character of the reform and the barbarian methods they did not hesitate to use for its implementation.(60)

A second observation that is important here, is that the reforms were not rooted in purely communist ideology alone, but fitted in well with ideas that were shared by the whole Russian opposition movement. The origin of the ideas on which the reforms were based was not communist or even socialist, but late liberal.(61) The absence of all political freedom had made political tension in Tsarist Russia in many respects greater than in most other European countries. Family law issues such as the equality of women, civil marriage and more liberal divorce had been perceived as matters of the highest political priority ever since the end of the 19th century. That was not so much because of the substance of pre-Revolutionary legislation, which was essentially no more conservative than in most West European countries. Family law issues stood relatively high on the political agenda because in the highly polarised pre-Revolutionary Russian society, all who strived for social change, from Marxists and anarchists to liberals and Leo Tolstoy, did not only consider change in the public sphere to be of the utmost importance, but also change in the private sphere. Just like in Scandinavia, family law was one of the few issues where all opposition forces met in the middle. The ideas behind the reforms that the Bolsheviks implemented were far from exclusively communist. It is better to say that at this time the communist ideas temporarily coincided with the whole opposition movement's liberal ideas about the family and the position of women.(62)

The radical Soviet reforms of the first decades of the 20th century can be appreciated in different ways. Some scholars typify them as excesses of a revolutionary period that have limited relevance for the overall development of family law and its explanation.(63) Although certain renovations could be characterised as excessive, such as the paternity action, which allowed little opportunity to contest the action,(64) the core of the reforms form a unique example of the creation of a modern family law in a backward agrarian country. The changes came about in an undemocratic way,(65) the methods of their implementation were often inhumane, but their substance was exactly in line with the mainstream of the historical development of family law. In this respect, the Soviet Union just ran ahead of its time. Countries with the most modern family legislation reached the same level of liberalisation of family law, consisting of the deinstitutionalisation of marriage and divorce, and the abolition of the whole notion of illegitimacy, only by the end of the 20th century. It is true that when the reforms were introduced, they did not correspond with the economic and social structure of the time. But the same is true for the bulk of Bolshevik policy, and these structures changed very rapidly. Dramatic changes in the economy destroyed the traditional family structure with unprecedented speed. In next to no time, the family ceased to be the basic economic unit that it had previously been.(66) Legislation that did not work well under the new circumstances was continuously amended.(67)

The informality of pre-Christian family law is clearly discernible in the new Russian legislation. With their radical rejection of the family law concepts based on the Christian tradition, the Bolsheviks reinstated concepts that had governed family law almost 2000 years before.

Stalin's contra-reform: The Ukase of 8 July 1944

During Stalin's reign, all more or less liberal legislation was abolished. The New Economic Policy (NEP) made way for the command economy. A similar process took place in the field of family law. In 1936, abortion was declared a criminal offence. As contraception was virtually unknown in the Soviet Union, abortion was the only means of family planning. As a result of the sudden prohibition, many women relied on clandestine abortion, which cost the lives of thousands of women.

The infamous Ukase of 8 July 1944(68) radically revoked several important previous innovations of family law. Informal marriage lost its legal status. The recognition of children born outside wedlock, the establishment of paternity by the courts and even a maintenance claim on behalf of a natural child were all rendered no longer possible. Even pre-Revolutionary legislation had been less harsh in this respect. Divorce proceedings became complicated and expensive: only in the second instance were the courts entitled to grant a divorce when they found that a marriage had irretrievably broken down. Many scholars, both Russian and foreign, have tried to explain this dramatic contra-reform.(69) As in my view this explanation is essential for the proper appreciation of the reforms of the first two decades of Bolshevik rule, I will devote special attention to this problem.

Rheinstein, and in his tracks Willekens,(70) see in the Ukase a logical measure of a period of economic stabilisation that took back 'radical reforms out of tune with socio-economic structures'.(71) Even to the extent that this correlation is so compelling, if anything was 'out of tune' with the newly created economic situation and family structures, it was the Ukase of 1944, not the rules of the Family Code of 1926 that it set aside. Also, the Ukase was not a concession to 'a popular and conservative current represented by peasant tradition' that wanted to return to more conventional forms of marriage.(72) At that time, the regime was less interested than ever in the wishes of the population. Moreover, the traditional patriarchal family structure was already very much dead. From a political point of view, there could not have been a less suitable moment to roll back the reform than in the middle of the Second World War, when families were separated on an unprecedented scale and the number of children born outside wedlock increased dramatically. The purpose of the prohibition of abortion was to stimulate the birth rate. The simultaneous abolition of the possibility to establish legal relations between a father and his natural child created a completely opposite incentive. The demographic disparity created by the War left many women no other opportunity for having children than to give birth when still unmarried, but the desire that their child should have a legal father and the impossibility of receiving any maintenance made many choose for an illegal abortion.

The official propaganda of the time gave as the purpose of the Ukase the 'strengthening of the socialist family'. This slogan could not justify the Draconian legislation, however. The family did not need to be strengthened. Although divorce had become quite common, its background was not the 'relaxation of morals',(73) but the flourishing economic independence of women. The lifelong marriage of pre-Revolutionary times had given way to a modern type of 'serial' monogamy. The communist perception of relations between men and women was quite ascetic. Mutual fidelity was self-evident and adultery was considered to be 'moral degradation'. Although family law as such was lenient,(74) other social regulators exercised a firm control over sexual morality and family stability. The Komsomol, the school, the trade unions, the labour collectives and other vehicles for social control that were plenty and powerful in the totalitarian Soviet state took care of that. As statistical data show, the Ukase in fact did not have any stabilising effect at all.(75)

I cannot pretend to know the true explanation for the contra-reform. The legislative history of the act is largely unknown. Studying that dark period of Soviet history is as problematic as studying the Dark Ages. One thing is certain: the initiative did not emanate from the kitchen of the legal profession, but directly from Stalin and his close environment. One can only speculate about Stalin's precise role, as has been done about Napoleon's intervention in the drafting of the family law provisions of the Code civil.(76) Was it an utterance of Stalin's frustration concerning his second marriage to Nadezhda Allilueva, whom he, like Napoleon in the case of Josephine, could never make to 'belong to him body and soul', and who committed suicide in 1932? Perhaps his Caucasus origins, a region extremely conservative in respect of family matters, played a role. Stalin's conservatism regarding women is well known: he considered it improper for his teenage daughter to wear the 'short' pioneer skirts of that time. From a feminist point of view, it is easy to see in the Ukase the revival of the patriarchal, male ideology that the man should not be responsible for his bastard children and all the consequences should be borne by the woman alone.

Although it is very well possible that the contra-reform was initiated by Stalin or his direct environment for no other reason than personal convictions, one can also imagine objective reasons for it. The advancing totalitarian state strived to penetrate all corners of society. The economy had already been brought completely under its control. The family, not being directly linked to the economy, was the next to be subjugated. The communist state did not want to tolerate a private place where men could find refuge from its pressure.(77) Family solidarity was perceived to be a threat to the devotion to communist ideals.(78) Not concern for the stability of the family, but rather the desire to make totalitarianisation complete could be seen to underlie Stalin's Ukase. Rheinstein was partly right when writing that '[c]onservatism in matters of marriage was thus demonstrated to be not simply a survival of Christian tradition but also a desideratum of purely secular statism'.(79) To my mind, 'a survival of Christian tradition' was completely out of the question. Stalin's policies were based on strictly secular ideas derived from Marxism and theories such as those of Léon Duguit, who was very popular in the 1920s, and Auguste Comte. The only thing that resembled the Christian tradition was the attempt to re-institutionalise marriage.


Conclusion


On the basis of this brief sketch of the historical development of family law in Europe I would like to make the following suggestions:

- If we do not place the early Soviet and Portuguese reforms outside an explanatory framework as temporary excesses of a revolutionary period, it becomes clear that the first family law reforms did not take place in the countries with the most developed economies and the most democratic political regimes. The countries with the earliest and most far-reaching transformations of family law seem to have followed more or less the same pattern: the consolidation of the whole spectre of the 'left' political forces around the late-liberal ideas concerning the family and the position of women, a high level of secularisation and a radical break with the canonical concepts of marriage, divorce and illegitimacy.

- Conservatism in family law does not primarily correlate with a less developed economy, but first and foremost with the measure of abandonment of the old canonical dogmas. This abandonment was slower in countries with a strong Church influence (such as Italy, Spain, Ireland and Greece).(80) Even economically less developed East European countries (such as Moldova, Romania and Serbia) have a fairly modern family law, due to the radical break with the canonical concepts that was imposed by the communists. The axis of the difference in the modernity of family law does not lie East-West, as is the case with other parts of civil law that are more directly linked with the economy, but instead in a general North-South direction.(81)

- Looking at the history of family law in Europe, it is possible to see that ever since the Middle Ages, when canon family law was uniform, all European countries were developing in the same direction. The substance, the tendencies and the driving forces of the reform of family law were essentially the same everywhere. The only true differences are in the timing. There are no unbridgeable historical and cultural differences that make family law eternally unsuitable for harmonisation and unification. That is not to say that a difference in timing is not a serious obstacle for unification - it obviously is - but I think that the expectation is justified that further harmonisation and unification will prove to be possible in the future.



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Notes
1. Senior Research Fellow of the Molengraaff Institute for Private Law, Utrecht University, The Netherlands. Ms. Antokolskaia's research has been made possible by a fellowship of the Royal Netherlands Academy of Arts and Sciences.

2. Antokolskaia, De Hondt and Steenhoff (1999).

3. E.g., Duby (1985), Goody (1983), Glendon (1989) and Rheinstein (1972).

4. I do not intend to take sides in the discussion on the role of economic and ideological factors in the transformation of family law. It is, of course, impossible to deny a certain dependency between the modernity of family law and the level of economic development. The question is how strong and direct this dependency is and to what extent ideological and other factors serve as a link between them. I have no answer to these questions. At this point, my intention is limited to the rather positivist observation of discrepancies and correlations between these factors and the level of modernity of family law at certain points of its development.

5. The last step in the development of the rules on the formation of marriage was made at the Council of Trent in the 16th century.

6. See, for example, the letter of the Apostle Paul to Corinthians (1 Cor., 7, 1).

7. Troitskii (1995), p. 186.

8. Grubbs (1995), p. 142.

9. However, such disapproval still manifested itself until deep into the Middle Ages. Even in 1146, when the Emperor of the Holy Roman Empire, Henry II, was canonised, he was praised for his exceptionally chaste marriage life. He completely abstained from physical relations with his wife Kunigunde so that both remained virgins until their death; Duby (1985), pp. 73-74.

10. Grubbs (1995), p. 148.

11. Troitskii (1995), p. 192.

12. Neuhaus (1983), pp. 16-17.

13. Duby (1985), pp. 47-48.

14. Duby (1985), p. 197.

15. Duby (1985), p. 197, Glendon (1989), p. 25.

16. For instance, the Russian Prince Vladimir was born to his father's concubine, who was a housekeeper of his father's wife Olga. This origin did not preclude him from being accepted as a son and from inheriting the realm; Nevolin (1851), p. 312.

17. Goody (1983), p. 73.

18. For these reasons, Charlemagne did not give his daughters away in marriage, but gave them as concubines in order to limit the number of potential heirs; Duby (1985), p. 58.

19. Goody (1983), p. 77.

20. Grubbs (1995), pp. 226-227.

21. Idem, pp. 228-229.

22. Matthew 19, 8-9.

23. Of most influence in this respect was the struggle of Emperor Leo VI to have his second marriage blessed at the end of the 9th century; Troitskii (1995), p. 192.

24. Duby (1985), p. 179.

25. From the third degree in the 6th century to the seventh degree in the 12th century; Goody (1983), p. 56.

26. Dispensation was possible up to the fourth degree.

27. Idem, p. 145.

28. Duby (1985), p. 221 (my translation).

29. To my mind, this is a vulnerable point in the analysis of Willekens, who tries to explain the changes in family law by way of the changes in the social function of the family. Willekens starts his analysis from the function of the family in the agrarian societies at the beginning of the 18th century when, as in the feudal period, land was of primary economic importance. I wonder whether the function of the family in those days differed so much from the Roman society of the classical period, which was also in essence agrarian, and whether this difference could explain the informality of family law and the low level of institutionalisation of marriage.

30. Duby (1985), pp. 110-111.

31. Goody (1983), pp. 44-45, 145.

32. Glendon (1989), p. 31.

33. O'Donovan (1993), p. 88.

34. Okin (1989), p. 91.

35. See Freeman (1994), pp. 23-25.

36. In Locke's view, because in the absence of consensus between husband and wife 'the last determination (i.e., the rule) should be placed somewhere, it naturally falls to the man's share as the abler and stronger'; Locke (1970), p. 157.

37. Mill (1974), p. 33. See also the introduction to this book by W.R. Carr, p. vii.

38. O'Donovan (1985), p. 8.

39. See also Willekens (1997), p. 77.

40. Willekens (1997), pp. 80-83.

41. Asser/Wiarda (1957), pp. 496-497 (my translation; emphasis added).

42. 'The Sabbath was made for man, and not man for the Sabbath.'

43. De Ruiter (1990), pp. 195-200.

44. E.g., Shultz formulates this as follows: '[S]pecific prescriptions about right and wrong must be replaced by a new credo: tolerance of individual variations and values. In the same way, if individual fulfilment is the ultimate value, then pursuit of it justifies sacrificing such goals as permanence [of marriage]'; Shultz (1982), p. 251.

45. An example is the objective of the Swedish legislator not to give marriage any privileges above unmarried cohabitation in order not to impose any moral or ethical judgments; Agell (1998), pp. 128-129. To my mind, this objective can also be seen as the choice for another, tolerance-based morality.

46. The scope of this article forces me to skip a few centuries (although the family legislation of the French revolution and the Prussian Allgemeines Landrecht of 1794 were of great importance for the process of the modernisation of family law) and to jump to the 20th century.

47. This, of course, is a rather simplistic sketch of a more complicated situation. East-European law was not modern in all respects. Portugal was the first country where radical reform, albeit not lasting reform, took place. In some other countries, the modernity of family law differed significantly from one particular institution to another.

48. H. Cohn, The Foreign Laws of Marriage and Divorce (1937), pp. 182-184, cited by Bradley (1996), p. 10.

49. For an overview, see Bradley (1996), pp. 9-13; Schmidt (1984), p. 80.

50. See Willekens (1997), p. 87.

51. Bradley (1996), pp. 3-9.

52. Gaunt and Nystrom (1996), p. 480.

53. Rheinstein (1972), p. 154.

54. Bradley (1996).

55. Idem, p. 156.

56. Idem, p. 138.

57. Decree of 18 December 1917 'O grazhdanskom brake, detiakh. u vedenii knig aktov grazhdanskogo sosnoiania', SU RSFSR, 1917, N 1, st. 160; Decree of 19 December 1917 'O rastorzhenii braka', SU RSFSR, 1917, N 10, st. 152, 'Kodex zakonov ob aktokh grazhdanskogo sosnoiania, brachnom, semeinim i opekynskom prave', SU RSFSR, 1918, N 76/77, st. 818.

58. Genkin, Novotzkii and Rabinovich (1949), p. 419.

59. Raevich (1927), p. 426.

60. Implementation of the reforms was accompanied by terror and repression against the clergy and the religious population.

61. See also Kerblay (1996), p. 145.

62. Communist ideology, as such, did manifest itself, but did not get its own way during this period. An example is the debate about the registration of marriage. Young communists headed by the prominent feminists Inesse Armand and Alexandra Kollontay, who were granted important positions in the Bolshevik government, strived for the abolition of registration. They referred to Engels's 'Origins of the Family, Private Property and the State' and argued that marriage had to die out soon and that its temporal preservation was just a 'concession to the religious prejudice of the population'. Lenin, who on this issue represented a more moderate group, was as usual more interested in the actual political impact than in the classical notions of Marxism. He argued that Engels's writing should be understood in such a way that only the 'bourgeois family' was doomed to die out in order to make way for a new type, the 'proletarian family'. See Lenin (1939).

63. Willekens typifies these reforms as 'radical reforms out of tune with socio-economic structures'; Willekens (1997), p. 78.

64. The family law of 1918 introduced the so-called registrative establishment of paternity. Women, married women included, could until three months before the birth declare before the registration officer that a certain person was the father of their child. The putative father could contest this declaration before the court within two weeks. Failure to do so (in time) was treated as recognition.

65. The opinion of the population at large was never examined. My guess is that perhaps about 5% of the population (90% of whom consisted of the illiterate agrarian population) would have supported the reform. This would have been no different, however, with the reforms of Peter the Great.

66. The termination of the New Economic Policy by the end of the 1920s abolished all small family businesses in the urban regions. The collectivisation at the beginning of the 1930s completely destroyed the agrarian family household. The family was no longer the only source of income for dependent family members. In 1922, only 25% of the total working force was female, in 1940 this number had risen to 39%, and in 1945 (due to the War) it was 56%; see Kerblay (1996), p. 145. The family ceased to be an important economic unit. Single women who earned an income from employment and alimony from the fathers of their children were more or less able to raise their children alone. Although social security was in an inadequate state, women equally benefited from it.

67. For instance, the Family Code of 1918 left the pre-Revolutionary separate property regime of marital property intact. This caused problems under the new liberal divorce law, because women without an income of their own had no claim to a share of family property. For this reason, the Code of 1926 introduced a marital property regime of limited community that gave these women proper protection.

68. Vedomosti Verhovnogo Soveta SSSR, 1944, N 37.

69. In Russia, Stalin's family legislation is widely perceived as just another excess of totalitarianism. Even contemporaries experienced it as extremely unjust. Although no one at that time could say a word against it, lawyers generally tried to soften its consequences. Not being allowed to grant maintenance against the natural father towards his illegitimate child on the basis of his paternity, they granted it instead on the basis of the factual upbringing of the child by the natural father. Factual upbringing was, at that time, a distinct ground for maintenance obligations. After Stalin's death, abortion was again legalised. The Fundamental Principles of 1968 not only restored the possibility of establishing the paternity of the natural father, but did so with retroactive effect. At the same time, divorce law was liberalised.

70. Rheinstein (1972), pp. 231-243; Willekens (1997), p. 78.

71. Willekens (1997), p. 78.

72. See Kerblay (1996), p. 145.

73. Rheinstein (1972), p. 231.

74. As Rheinstein, analysing early Roman divorce law of the republican period, rightly points out, in reality there is no clear correlation between the restrictiveness of divorce law and the stability of the family.

75. The divorce rate in 1938-39 was 4.8 per thousand. In 1958-59 it was the same. Not only did this rate not decrease while the Ukase of 1944 was in force, but it increased to 5.3 per thousand instead; Willekens and Scherbov (1995), p. 199.

76. See Glendon (1989), p. 89.

77. A distinguished lawyer of that time wrote: '[T]he socialist State reserves for itself wide latitude for direct and active infringement into family relationships. . . . The state denies the qualification of relations between sexes as individual, intimate, and of no interest for State and society. . . . It dictates, determines rules to guarantee the interests of the collective, to force individuals to fulfil their duties towards the collective'; Sverdlov (1941), p. 58.

78. The hero and martyr of that time was a young pioneer killed by his family because he betrayed his father as a kulak.

79. Rheinstein (1972), p. 236.

80. The Netherlands serves as another example: this country with a modern economy had until recently in several respects a very outdated family law, which is generally attributed to the strong influence of the Christian political parties.

81. The general line of development of family law in East Europe is exactly the same as in the rest of the continent. Even the temporary contra-reform under Stalin is not completely without precedent. The Nazis just did not have enough time to implement their ideas about family law (see Glendon (1989), p. 175). The concept of 'socialist' family law is, in my view, not more than a remnant of the propaganda of the Soviet era (see Antokolskaia (1996), p. 640).





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See also "history of divorce timeline"