Distinguished Professor
and Weiss Family Scholar, Pennsylvania State University, Dickinson School [...]
Assistant
Professor of Law, Drake Law School, Des Moines, Iowa. Professor Bartrum is
a [...]
This article aims to assess cross-UK progress in the recognition of the independent education rights of children and young people of school age. There is an increasing divergence between the separate education systems of England, Northern Ireland, Scotland, and Wales, which has become more pronounced after the devolution of power that began just over a decade ago and is accentuated by the sheer volume of legislative activity and policy developments in this field. Thus, an examination of these rights in the UK necessitates comparisons between these four jurisdictions, notwithstanding the many shared traditions in their approach to education and its governance. The article gives its principal focus to rights relating to participation in decision making and redress processes, including those concerning consultation, appeals, and complaints. Analysing recent developments across a range of key aspects of education, including the curriculum, discipline, and special and additional support needs, the author finds not only a reasonable degree of overall progress in the realization of children and young people’s autonomy interests in the field of education, from a rather low point particularly compared with child law more generally, but also a degree of disparity across the UK and a continuing cynicism about the true level of empowerment of children and young people in relation to decisions concerning their [...]
This article chronicles the treatment of same-sex couples in England and the Republic of Ireland in recent years in order to ascertain (i) the impact that incorporation of the European Convention into the domestic law of each State has had on the rights of same-sex couples, (ii) what the introduction of civil partnership legislation might mean for the future of the same-sex marriage debate, (iii) the position of prospective same-sex adoptive parents in each jurisdiction, and (iv) what the law is proposing for those couples who do not formalise their relationship, whether same-sex or opposite-sex. Through a comparative analysis of the many recent developments that have taken place in each jurisdiction, the article concludes (i) that when interpreted correctly by the national courts the European Convention has been of little benefit to same-sex couples since its incorporation, (ii) that civil partnership may sound the death knell for same-sex marriage, (iii) that the Irish stance on adoption by same-sex couples may be illogical in light of a recent decision handed down in Strasbourg, and (iv) that significant progress has been made as regards those opposite-sex and same-sex couples who do not marry or register their partnership, with a redress scheme for such couples at the legislative stage in the Republic of [...]
In the post-independence era, the Indian woman has been the subject of numerous laws, the Protection of Women from Domestic Violence Act 2005 being one of the latest and certainly the most controversial addition to the list. While it has been eagerly awaited in certain sections as a step that should significantly strengthen the position of Indian women within the family unit, it has been widely criticized as being ambiguous, discriminatory, and even potentially dangerous. This article seeks to analyse this controversial legislation in the context of its socio-economic background and the legal developments that led to its enactment. Moreover, an attempt has been made to critically examine its provisions, and to highlight its implications, both positive and negative. Further, a comparison has been made between this enactment and other similar legislation in various other countries. Finally, the article seeks to put into perspective the overall impact that this legislation would have on the family unit and the social fabric of [...]
Before 2005, the Constitution of Uganda provided in Article 31(1) that ‘men and women of the age of eighteen years and above have the right to marry and to found a family ….’ In 2005, Article 31 was amended by inserting clause (2a) to the effect that ‘marriage between persons of the same sex is prohibited’. The author gives a historical background to Article 31(1) and shows how the Constituent Assembly treated the issue of same-sex marriages. The author also examines the circumstances leading to the absolute prohibition of same-sex marriages in the Constitution of Uganda. Drawing on social problem theory, the author argues that the absolute prohibition of same-sex marriages in Uganda could be explained by the perceived threat to the established cultural norms from emerging humanitarian [...]
This article explores the interrelation between the availability of no-fault divorce and the enforceability of premarital contracts, exemplified by American and German law. The traditional common law doctrines in the USA and – at least with regard to spousal support – the German civil code of 1900 were similarly hostile towards premarital contracts. In both legal systems divorce was fault based. Conventional wisdom tells us that no-fault divorce and the enforceability of premarital contracts emerged together out of a spirit of liberalization. Yet, by reconstructing the history of both legal institutions, one may observe a more subtle interrelation. The vast majority of jurisdictions in the USA responded to the availability of no-fault divorce with the enforceability of premarital contracts, which reveals a causal relationship. In the case of Germany, it was already in 1938 when the lawmaker introduced through the Ehegesetz (Statute on Marriage) ‘irretrievable breakdown of marriage’ as grounds for divorce, and at the same time legalized premarital contracts on permanent maintenance. From today’s perspective, a functional understanding of the interrelation of both legal institutions seems to be the most promising. Family law, criminal law, and tort law are in retreat as protective mechanisms against risks of opportunistic behaviour and hold-ups that may arise through the availability of no-fault divorce. Premarital contracts on the financial consequences of divorce may be apt as an instrument to protect the interests of spouses against such risks. This finding provides a sound justification for contractual freedom in this field and shows that the availability of premarital contracts should be understood as a logical corollary of the availability of no-fault [...]
