REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00732.x |
| Date | 01 September 1963 |
| Published date | 01 September 1963 |
REVIEWS
EHE UND RECHT. By
DR.
WOLFRAM
MULLER-FREIENFELS, Professor
[Tubingen:
J.
C.
B.
LAW
is of necessity to
a
very great extent
a
national subject. Professor
Miiller-Freienfels’ book reminds
us
that the necessity is not absolute.
Its
discussion of the subjects of the relationship between marriage and law is
based on
so
much information about comparative law and the historic
developmcnt of the institution of marriage and its legal aspects that it must
be
of
interest to lawyers of
all
nationalities. Moreover, it does not only
discuss general principles but analyses
a
considerable number of questions
within the fields of matrimonial law and matrimonial property law in
such
detail that
it
is useful not only
to
the academic lawyer but also to
practitioners.
It
would take up too much space to comment on all the questions dealt
with in the book-it gives information about such varying subjects
as
marriage
in Communist China, the doctrine of nullity
in
canonical law, the problems
of
maintenance, and procedure in divorce cases. The problems are studied on
a
social and sociological background.
Of
special interest are the chapters dealing with the question
of
divorce.
Thc analysis of the different types of present-day divorce legislation is valuable
for everyone who
is
interested in
the
reform of mamage laws, among other
reasons because it is important to bear in mind that some elements in the
existing divorce systems have their roots in religious principles that are
in
many cases today only shared by
a
minority of the citizens affected by these
rules. This section of the book is especially rich in information about com-
parative law. The principles of divorce by consent and divorce based upon
matrimonial offence
or
upon the breakdown of marriage are discussed on
the
background of English, Scandinavian and Continental law.
Another especially interesting section of the book is the part dealing with
the question of reform
of
court procedure in divorce
cases.
The author points
out, quite rightly, that the procedure of the courts may often be of
as
much
importance
as
the legislation concerning the grounds for divorce and empha-
sises that
a
“sick” marriage creates
a
need for diagnosis and therapy. In
this connection he discusses the need for giving the judge wider powers to
investigate the facts behind the marriage breakdown, even though this will
mean
a
departure from fundamental principles
of
procedure in civil law
suits. He also stresses the importance of utilising the knowledge of
psychologists, psychiatrists, educationalists and social workers in the widest
sense of the word in the same way
as
has happened within the field of
criminal law in
a
great number of countries.
As
a
result of his deliberations he advocates the setting up
in
Germany
of special family courts with teams of expert advisers-stressing, however,
thgt the final decision in each case is
a
legal one-is for the judge, not for
the experts.
Professor Miiller-Freienfels knows well the arguments a-gainst establishing
such special courts with wide inquisitorial powers and analyses them in
detail. But he thinks that the arguments in favour of these institutions
am
even stronger. Behind this is the conviction that it
is
important to do
as
much
as
possible
to
solve the problem of the increasing number of broken
marriages, in the interest both of the parties themselves, their children and
the community itself.
5813
at the University of Frankfurt
am
Main.
Mohr (Paul Siebeck).
1962.
862
pp.]
5s4
TEE
MODERN
LAW
REVIEW
VOL.
26
It
is indeed true that no lawyer dealing with family law prchlcrns oiight
to
be unconcerned about the social and human problems behind niatrinionial
law-on the contrary, we ought to be found in the front rank of social
reformers-but
this
does
not
neccxsnrily
mean
thnt
rPform3
ouyht
to
be
carried
out
within
the
framework of
the
lrgnl
system.
As there are a number of disadvantages and difficulties connected with
turning divorce courts into faniily courts of the type advocated by Professor
Miiller-Freienfels,
it
might be useful to consider another way
of
utilising the
expert knowledge
:
he finds the marriage guidance clinics, that have in various
ways been set up in most Western countries, valuablewhy not go one
step
further and make the setting up
of
efficient family guidance clinics
a
public responsibility and make it a duty for the courts dealing with family
matters to co-operate with them?
It
would in my opinion be an advantage to attach the teams
of
experts
-which are scarce in most countries-to clinics instead of courts, because this
would give them
a
more general experience and make them able to get into
touch with the spouses
at
a much earlier stage, when there
is
a
better chance
of preventing the final breakdown of the marriage-a point also stressed by
Professor Miiller-Freienfels. Many spouses would moreover be more willing
to
co-opcrate with
a
clinic than with
a
court.
And clinics financed by public authorities might well provide the courts
with the information and assistance that the proposed family courts would
have to obtain from their own experts. Even judges who are actively in
favour of co-operating with experts in the fields of social sciences and
medicine will probably find this solution more acceptahlc,
as
it would cause
less
danger of turning the courts into superior family guidance clinics.
But even
a
reader who cannot support the proposals of the author will
find his arguments valuable, especially because they are based on the point
of
view that matrimonial law
is
not an isolated problem
for
lawyers but
must
be studied and discussed in
a
wider context.
I.
M.
PEDERSEN.
MATRIMONIAL
CAUSES
JURISDICTION
:
being the Law
of
Jurisdiction,
Choice
of
Law and Recognition
of
Foreign Decrees under the
Matrimonial Causes Act, 1989.
By
ZELMAN
COWEN, B.c.L.,
M.A.
(Oxon.)
B.A.,
LL.M.
(Melb.), and DEREK
MENDES
DA
COSTA,
LL.B.
(Lond.).
[Australia: The Law
Book
Co.
of
Australasia
Pty.,
Ltd. 1961.
xx
and 149 and (index) 11
p.
€1
12s.
6d.
net.]
IN
the
past
few years English lawyers seem slowly to have shed some
of
their
insularity and to have recognised the existence of other legal systems, both
common law and, with the threatened advent of the Common Market, civilian.
Lip service is now readily paid to the desirability of uniformity of law within
the Commonwealth. Two major obstacles appear to bar progress towards
this end. One, the lack of easily available materials may,
at
least in theory,
be
removed with the expenditure of sufficient money and effort. The other
is
the intrusion of statute into every field of law and this valuable account
of
some aspects of the Australian Matrimonial Causes Act,
1959,
illustrates the
difficulties to which statutory changes in the law give rise. A change in the
law by judicial development in one jurisdiction can often plausibly be argued
at
once to be common law in other jurisdictions throughout the Common-
wealth. If the same change is brought about by legislation in one country
it has no extraterritorial effect and can be
at
most
a
model for other legis-
latures. The end result of this situation is almost inevitably coniplcte lack
of uniformity since some Commonwealth countries will continue to apply the
old, unreformed common law and those who have followed the path of
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