-
Family Law
Family
law, or domestic relations law, as is sometimes
called, isconcerned with
the
relationships between husband and wife andbetween
parent and child, with
the rights and
duties that spring fromthese relationships by
operation of law or
contract, and with
the status ofmarried persons and children. It is
also concerned
with the
growingstatutory regulation of family life in such
areas as termination of
parentalrights,
child neglect and abuse, and adoption.
And
it
is
concerned
with
some
problems
that
affect
persons
outsidethe
familyunit,
including
contraception
,
abortion
,
and
rights
ofunmarried
cohabitants
. It is
traditionally state law, though federallegislation
in such fields
as
taxation
and
social
welfare
may
havesignificant
impact
and
important
problems
have
arisen
under
the
federalConstitution
in
recent
years.
Strongly
influenced by
English law duringcolonial times, family law has
everywhere been
greatly altered by
legislation and varies substantially from one
state to another
,
though
some
uniformity
has
been
achieved
in
limited
areas
through
the
adoption of uniform laws. In a number
of jurisdictions it is
administered
by a
separate
family
or
domestic
relations
court,
staffed
with
personnelwho
are
specially trained in
family problems.
Marriage
in
the
United
States
is
fundamentally
a
relationship
createdby
mutual consent of
the spouses. All states provide by statute for the
issuance of
marriage
licenses
and
some
require
a
formal
ceremony
atwhich
consent
is
solemnized
before
a
member
of
the
clergy
or
publicofficial.
Common
restrictions on
capacity to marry relate to the age of theparties,
the degree of any
blood
relationship
between
them,
and
theirmental
capacity.
A
restriction
can
sometimes
be
circumvented
by
goingto
another
state
that
has
no
such
restrictions, for a marriage that is
validin the state of celebration will ordinarily
be
recognized as valid by otherstates.
The marital relationship may be
ruptured
in two main ways:
by
annulment
,
a
court determination that no valid marriage ever
existedbetween the parties,
and
by
divorce,
a
court
decree
dissolving
the
marital
relationship,
generally
leaving the
parties free to marry. Divorceis the more common.
In colonial times
divorce
was
generally
bylegislative
act.
After
the
Revolution,
statutes
were
ultimately
enacted
inall
states
substituting
judicial
divorce
on
widely
varying
grounds
< br>.
1
All
ofthese
grounds
required
a
showing
of
some
serious
fault,
ty
pically
desertion
, cruelty,
or
adultery
, on the part of
the other spouse.
2
By
thetwentieth
century,
the
pressure
for
a
easier
divorce
had
led
to
collusive
divorce
actions,
in
which
the
spouses
cooperate
in
establishing
therequired
fault,
and
to
out-of-state or
divorces,
in
which
oneor
both
spouses went to another jurisdiction in which
divorces were moreliberally
granted.
The result was a movement in many states to
liberalize the grounds of
divorce by
dispensing
with a showing of
fault. The moremoderate of the new
divorce laws permit divorce by mutual
consent, asin New York, which has added
the
instance
of
one
spouse,
asin
California,
where
it
is
enough
if
one
spouse
shows
irreconcilable
differences,
which
have
caused
the
irremediable
breakdown of themarriage. In spite of
recent attempts to reduce the incidence of
divorceby
providing
facilities
for
counseling
and
conciliation
and
by
minimizingthe
adversary
character
of
the
proceedings,
the
divorce
rate
in
theUnited States remains the highest in
the world.
3
The
law
has
increasingly
turned
its
attention
to
dealing
with
the
rightof
spouses rather than
preserving their relationship. Traditionally,
underEnglish law,
a married woman was
subject to variety of legal disabilitiesgrowing
out of the
view
that
husband
and
wife
were
one
person
and
theauthority
was
in
the
husband.
4
For
example, all of the wife's personalproperty as
well as control of her
real
property
went
to
the
husband
onmarriage.
Beginning
in
the
nineteenth
century,
enactment
of
marriedwomen'
s
property
acts
throughout
the
United
States resulted in
the
emancipation
of the wife
by conferring upon her the right
to her
separateproperty, lifting her procedural
disabilities, making
explicit
her
power
tocontract,
and,
in
some
states,
giving
her
the
right
of
action
for
injuryeven as against her
husband.
5
This system of
separate property stilltended
to favor
the husband on divorce, however
, and in
most statescourts now have a
broad
power
, varying in extent from state to
state, to
apportion
all
property of
both spouses upon divorce.
In a minority ofeight states, spouses are subject
to a
system of community property.
Of comparable importance is the
obligation of support. A spousemay obtain a
separate maintenance decree during the
life of themarriage and this obligation of
support
has
been
secured
againstavoidance
by
flight
through
universal
enactment of the
Uniform
Reciprocal
Enforcement of Support Act.
6
Upon divorce,
the supportobligation may
be replaced by an agreed-upon
lump
settlement or by
acourt
decree ordering periodic payments of
alimony
. Alimony, whichmay
be
awarded both during
and
after the divorce
litigation,
is justifiedon alternative
theories; either that it is in
substitution for the supportobligation, or that it
is in
settlement for the dissolution of
the maritalpartnership.
7
It
is some indication of
the inadequacy of
legal proceduresin meeting the fundamental
problems of the