THE PLACE OF DIVORCE IN FAMILY LAW'S NEW ROLE
| Author | J. M. Eekelaar |
| Published date | 01 May 1975 |
| Date | 01 May 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01413.x |
THE
MODERN
LAW
REVIEW
~ ~
_______
~-
~~~~
Volume
38
May
1975
,
No.
3
T”E
PLACE
OF
DIVORCE
IN
FAMILY
LAW’S
NEW
ROLE
I
IT
is obvious that the present
is
a time of exceptional activity in
family law reform. There have, of course, been similar upsurges in the
past. These have been associated with the transition from ecclesiasti-
cal
to
secular administration of family law and the reduction of the
husband’s legal domination over his wife.’ On
this
occasion, however,
the criticisms
of
the reformers seem to strike at the most basic assump-
tions of our family
law
system. What point is there of a marriage.law
if parties may be granted immediate divorce on joint application,’
and if children born out
of
wedlock have the same status as those
born in wedlock? At the same time the marital family as an institu-
tion has come under severe scrutiny.
It
has been urged that,
at
most
it is damaging to its constituent individuals and at least that it should
bc
considered as only one of
a
number of possible social
unit^.^
This
paper
is
an attempt to assess some
of
these criticisms and consider
their possible impact
oh
present family law.
A
rough guiding principle
*
For a classic discussion
of
the English experience in the nineteenth century,
see
A.
V.
Dicey,
Law
and
Public Opinion in England
hi
the Nineleenth Century
(1919),
Lecture
XI.
*
See the Report
of
the Swedish Committee
on
the Reform of Family Law
(May
1972).
noted
in
(1973) 22
I.C.L.O.
182.
The Committee recommended that,
if
one spouse disagreed
or
if
the
spous&
had mutual custody
of
a child under
16,
a six-month delay should be imposed. The Californian divorce legislation
of
1969,
apnears in effect to permit divorce
on
unilateral applioation:
see
H.
A. Finlay,
‘‘
Justidable
Issues
and Legalism in the Law of Divorce
”
(19n)
46
A.L.J.
543,
551.
The Californian system has been recommended as a model for a uniform divorce law
in the
USA.
M. Rheinstein,
Marriage Srabillty, Divorce and the
Law
(1972),
Chap.
15.
3
fbid.
See
also
the Status of Children Act
1969
(New Zealand). The
case
for
abolishing legal discrimination against illegitimate children is thoroughly discussed in
Harry
D.
Krause,
Illegirimacy:
Law
and Social Policy
(1971).
4
Foremost among these critics is R.
D.
Laing. See
The
Polifics
of
the
Family
and
Other Essays
(1969),
discussed below.
5
This has been advocated
by
the increasingly influential feminist movement. See
Juliet Mitchell,
Woman’s
Estare
(1971),
discussed below. In its issue
of
June
21,
1973,
the
New
Law
Journal
produced a
form
of
pyedent for “Cohabitation
Contract” under which the parties agree to enter matrimony without being
bound by the laws
of
marriage. For further references,
see
M.
D.
A. Freeman,
“
The
Search for
a
Rational Divorce Law
”
(1971)
C.L.P.
178.
24
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VOL.
38
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