Thursday, March 4, 2021

Definition and Sources of Family Law

(Source: Law of Family Teaching Material   

Aschalew Ashagrie & Martha Belete)

There is no generally accepted definition of family law. ‘Family law is usually seen as the law governing the relationship between children and parents, and between adults in close emotional relationships’[1]. Many areas of law can have an impact on family life: tax laws, immigration laws as well as insurance laws have great connection with family law. As Dewar noted:

Most legal disciplines would claim to possess at least one of two forms of coherence. The first stems from the organizing legal concept from which the discipline in question derives its name: ‘contract’, ‘negligence’, ‘trust’. The second relates to the set of ‘real world’ problems with which the discipline is concerned: labor relations, housing, land use, commerce, government and administration. At first glance, it would seem that the area of study designated as family law possesses a coherence of the second sort. After all, the term ‘family’ has in itself no legal significance (although attempts are often made to define the family for legal purposes); and the subject usually comprises a mixed bag of legal rules and concepts, such as those concerned with marriage, divorce, parents and children and property, each possessing a different historical origin and pattern of development. The only justification for studying them together is that they all in some way concern the family, a social phenomenon constituted outside the categories of the law. For this reason, family law has grown over the years to include parts of other legal disciplines of relevance to the family, such as property, criminal and housing law, taxation, social security, evidence and procedure; as well as incorporating legal aspects of phenomena thought to have a ‘family’ connection, such as domestic violence, child abuse, marital rape, surrogacy, homelessness and pensions (to name a few).

In spite of this, can it still be said that family law is a coherent area of study? It has already been suggested that it cannot satisfy the first criterion of coherence mentioned above; and if it were to satisfy the second, the subject would be a good deal broader than it is now, probably unmanageable so. For if we were really to take the family as the starting point, and were to consider all areas of law relevant to the family, we would want to include much that is not currently considered part of the subject. For example, we might wish to consider the welfare state, the fiscal system and the labor market in more detail than is customary; and we may also want to consider the areas of education and health services. These are all areas of relevance to families and in which the family is encountered as a necessary relay in the implementation of programs of social action. But family law has not been interpreted as broadly as this. Instead, it focuses primarily on the more traditional question of status and is thus primarily concerned with the means by which status is conferred, such as marriage, parenthood and cohabitation, and on the means by which status may alter, such as divorce or state action to remove children from parents. More recently, it has become concerned with the problem of individuals abused by members of their own family.     

[Excerpts from: John Dewar, Law and the Family, 2nd ed, Butterworths, London, 1992, p.1-2] 


[1] Jonathan Herring, 9

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