Routledge handbook of international family law

Routledge Handbook of International Family Law Globalisation, and the vast migrations of capital and labour that have accompanied it in recent decades, has transformed family law in once unimaginable ways Families have been torn apart and new families have been created Borders have become more porous, allowing adoptees and mail order brides to join new families and women fleeing domestic violence to escape from old ones People of different nationalities marry, have children, and divorce, not necessarily in that order They file suits in their respective home states or third states, demanding support, custody, and property Otherwise law-abiding parents risk jail in desperate efforts to abduct their own children from foreign ex-spouses The aim of this Handbook is to provide scholars, postgraduate students, judges, and practitioners with a broad but authoritative review of current research in the area of International Family Law The contributors reflect on a range of jurisdictions and legal traditions and their approaches vary Each chapter has a distinct subject matter and was written by an author who was invited because of his or her expertise on that subject This volume provides a valuable contribution to emerging understandings of the subject Barbara Stark is Professor of Law and Hofstra Research Scholar at the Maurice A Deane School of Law at Hofstra University, where she teaches Family Law, International Law, Human Rights, and International Family Law Jacqueline Heaton is Professor of Law at the University of South Africa She specialises in Family Law, Law of Persons, and Child Law Routledge Handbook of International Family Law Edited by Barbara Stark and Jacqueline Heaton First published 2019 by Routledge Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 selection and editorial matter, Barbara Stark and Jacqueline Heaton; individual chapters, the contributors The right of Barbara Stark and Jacqueline Heaton to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988 All rights reserved No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Stark, Barbara, 1952– editor | Heaton, J., editor Title: Routledge handbook of international family law / edited by Barbara Stark and Jacqueline Heaton Description: Abingdon, Oxon [UK] ; New York, NY : Routledge, 2019 Identifiers: LCCN 2018042265 | ISBN 9781472483829 (hbk) | ISBN 9781315613079 (ebk) Subjects: LCSH: Domestic relations (International law) Classification: LCC K670 R69 2019 | DDC 346.01/5—dc23 LC record available at https://lccn.loc.gov/2018042265 ISBN: 978-1-4724-8382-9 (hbk) ISBN: 978-1-315-61307-9 (ebk) Typeset in Bembo by Apex CoVantage, LLC Contents Notes on contributors Introduction Barbara Stark and Jacqueline Heaton vii PART I Marriage and marriage-like relationships Marriage Maebh Harding 11 Same-sex marriages and civil or registered partnerships Nicholas Bamforth 25 Customary marriages Thandabantu Nhlapo 45 PART II Divorce 61 Divorce Barbara Stark 63 Post-divorce maintenance for spouses Geoffrey Shannon 79 Distribution of property on divorce Bill Atkin 93 International family mediation: recent developments Nuria Gonzalez-Martin 110 v Contents PART III Children 125 Child custody and cognate concepts: the challenges Elaine E Sutherland 127 Child support Margaret F Brinig 144 10 Personal relations and contact concerning children Frederik Swennen 161 11 Adoption Barbara Stark 175 PART IV Human rights within and affecting the family 193 12 Children’s rights in the family Geraldine Van Bueren QC 195 13 Reproductive rights Rachel Rebouché 209 14 Surrogacy Philipp M Reuss 225 15 Fathers’ rights: Japan as a different paradigm Colin P.A Jones 242 PART V The family and the state 263 16 Theories of state and family Aziza Ahmed 265 17 Normative developments on domestic violence against women Rashida Manjoo 276 18 Transnational families: the right to family life in the age of global migration Edit Frenyo 295 Index 316 vi Contributors Aziza Ahmed is Professor of Law at Northeastern University, where she teaches Property Law, Reproductive Rights, and International Health Law She is also Affiliated Faculty at Northeastern University Bouvé College of Health Sciences She has published widely in leading law journals, including the Wisconsin Law Review and the University of Miami Law Review, and she has an article forthcoming in the Fordham Law Review She was a Law and Public Affairs Fellow and Visiting Scholar at Princeton University in 2017–2018 Bill Atkin is Professor of Law at Victoria University of Wellington, New Zealand He chaired the Ministerial Adoption Practices Review Committee, and was on the Working Group on Matrimonial Property and Family Protection, and the Ministerial Committee on Assisted Reproductive Technologies He is on the Expert Advisory Group for the Law Commission’s relationship property project From 2007 to 2016, he was the General Editor of the International Society of Law’s International Survey of Family Law He has published extensively, especially in the field of Family Law, including in 2018 the third edition of his book Relationship Property in New Zealand Nicholas Bamforth is a Fellow in Law at The Queen’s College, Oxford He teaches Constitutional Law, Administrative Law, and Human Rights He is the author or co-author of Sexuality, Morals and Justice (Cassell), Patriarchal Religion, Sexuality and Gender (with David A.J Richards, Cambridge), and Discrimination Law: Theory and Context (with Maleiha Malik and Colm O’Cinneide, Thomson/Sweet & Maxwell), and the editor or co-editor of Public Law in a Multi-layered Constitution (with Peter Leyland, Hart), Accountability in the Contemporary Constitution (with Peter Leyland, Oxford), Sexual Orientation and Rights (Ashgate), and Sex Rights: The Oxford Amnesty Lectures 2002 (Oxford) Margaret F Brinig is the Fritz Duda Family Chair in Law at Notre Dame School of Law, Indiana, USA She sits on the executive council of the International Society of Family Law An interdisciplinary scholar, she specialises in Family Law, Law and Economics, and Dispute Resolution She has written or co-authored more than 100 articles and her books include Family, Law, and Community: Supporting the Covenant (University of Chicago Press, 2010), The Economics of Family Law (2 vol., ed 2007), and From Contract to Covenant: Beyond the Law and Economics of the Family (Harvard University Press, 2000) Edit Frenyo is S.J.D candidate at Georgetown University Law Center, Washington D.C Her research uses perspectives of law and the social sciences to explore contemporary transnational families Her latest works analyse transnational parenting and the right to family vii Contributors life Previously she has served as an Adjunct Professor at Georgetown Law and at McDaniel College, Budapest In 2013 and 2014 she co-taught the Family Law course at Georgetown Law with Professor Judith C Areen In 2016 she taught “Children on the Move and the European Migrant Crisis – Status and Rights of Unaccompanied Minors in the European Union” at McDaniel College Nuria Gonzalez-Martin is Professor and Senior Researcher at the Institute for Legal Research, National Autonomous University of Mexico In 2015 she was selected as a Weinstein JAMS International Fellow From 2012 to 2016 she was Visiting Scholar and Visiting Fellow at Stanford Law School She is the author of many publications on Family Law, Comparative Law, Private International Law, and Alternative Dispute Resolution She is also external counsellor to Mexico’s Foreign Affairs Ministry and a certified mediator She is a member of several international scientific committees and participates in various Experts Groups of The Hague Conference on Private International Law and International Social Service to create a Global Network of International Family Mediation Maebh Harding is Associate Professor of Law at the Warwick School of Law, Coventry, United Kingdom Her interests revolve around Family and Child Law, Conflicts of Law with a focus on cross-border family issues, and Legal History Her books include Conflict of Laws (2013), Family and Succession Law in England and Wales (with Rebecca Probert, 2013), and the forthcoming From Catholic Outlook to Modern State Regulation: Developing Legal Understandings of Marriage in Ireland (Intersentia, 2019) From 2006 to 2008 she held the National University of Ireland E.J Phelan Fellowship in International Law at University College Dublin Colin P.A Jones is Professor at Doshisha Law School, Kyoto, Japan He has also taught at Duke Law School, the University of Victoria, and Osaka University and he has been a Visiting Fellow at the National University of Singapore His teaching areas include International Business Transactions, Japanese Law, and International Family Law He has published widely, in English and in Japanese His books include The Japanese Legal System (with Frank Ravitch, 2018) and The Child Abduction Problem: How the Japanese Legal System Tears Parents and Children Apart (in Japanese, Heibonsha shinsho, 2011) Rashida Manjoo is Professor of Law at the University of Cape Town where she teaches and convenes the Human Rights Program She was the UN Special Rapporteur on Violence Against Women between 2009 and 2015 She served as the Parliamentary commissioner on South Africa’s Commission on Gender Equality, the Des Lee Distinguished Visiting Professor at Webster University, and the Eleanor Roosevelt Fellow with Harvard Law School’s Human Rights Program Among her numerous reports, journals and book publications are Women’s Charters and Declarations: Building Another World (2013) and The Legal Protection of Women from Violence: Normative Gaps in International Law (2018) Thandabantu Nhlapo is Emeritus Professor of Private Law and Former Deputy Vice-Chancellor of the University of Cape Town, South Africa He was a full-time Commissioner of the South African Law Reform Commission and has served on the Executive Council of the International Society of Family Law He has written widely on African Customary Law and has authored, coauthored, and edited several books, including The Changing Family: Family Forms and Family Law (ed with John Eekelaar, Hart, 1998), and African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (ed with Chuma Himonga, Oxford Southern Africa, 2014) viii Contributors Rachel Rebouché is Professor of Law and Associate Dean of Research, Temple University Beas- ley School of Law, Philadelphia, USA She is a co-investigator for a project on adolescent reproductive health at the Emory School of Public Health She is an author of the casebook, Family Law, with Harris and Carbone, and a co-author of Governance Feminism: An Introduction with Halley, Kotiswaran, and Shamir She is completing a book on reproductive justice for NYU Press and editing a collection of rewritten family law opinions for Cambridge University Press She has published law review articles on a variety of reproductive rights topics Philipp M Reuss is Privatdozent at the Institute of International Law – Comparative Law, Ludwig- Maximilians-Universität of Munich, Germany and is currently acting Professor at the University of Bonn, Germany, which will continue in the winter term 2018–2019 He is a member of the Wissenschaftliche Vereingung für Familienrecht (Scientific Association for Family Law) and has published in the field of Family and Child Law Geoffrey Shannon is the Adjunct Professor in Child and Family Law at the School of Law of the University of Limerick, Ireland He is the current Chairman of the Adoption Authority of Ireland and the Special Rapporteur on Child Protection for the Irish government In 2017, Mr Justice Peter Kelly, President of the Irish High Court presented him with the Dublin Solicitors Bar Association Award for outstanding contribution to legal scholarship for his entire work to date He is also the recipient of several awards for his work in the field of national and international family law Barbara Stark is Professor of Law and Hofstra Research Fellow at the Maurice A Deane School of Law, Hofstra University, New York, USA She teaches Family Law, International Law, and International Human Rights She is the author or co-author of three books, International Family Law (2005), Global Issues in Family Law (with Ann Estin, 2007), and Family Law in the World Community (with Marianne Blair et al., 2015) Her edited or co-edited books include Human Rights and Children (ed 2017) and Family Law in New York (with Joanna Grossman, 2015.) Elaine E Sutherland is Professor of Child and Family Law, Stirling Law School, University of Stirling, Scotland, and Distinguished Professor of Law Emeritus, Lewis and Clark Law School, Portland, Oregon, USA In 2012, she founded the United Nations Convention on the Rights of the Child Implementing Project She is the sole author of more than 100 articles, book chapters and three books Her recent edited or co-edited books include The Future of Child and Family Law: International Predictions (2012) and Implementing Article of the United Nations Convention on the Rights of the Child (with Barnes Macfarlane, 2016) Frederik Swennen is Dean and Full Tenured Professor of Family Law and Kinship Studies at the Faculty of Law of the University of Antwerp, Belgium He chairs the Research Council Flanders, Scientific Research Network RETHINKIN_ (Rethinking family law and kinship studies in the Low Countries) and is co-promoter of the interdisciplinary University of Antwerp Centre of Research Excellence FAMCARE (Family Dynamics and Care) He teaches, and has broad research experience with publications and research projects in, International Family Law Geraldine Van Bueren QC is Professor of International Human Rights Law at Queen Mary University of London and Visiting Fellow at Kellogg College, Oxford in the United Kingdom ix Transnational families The absence of a mother from the household due to labor migration is almost always considered a greater pathology than that of a father Women’s migration for wage work challenges local gender ideologies of male breadwinners and female caretakers.76 Social imaginaries of romanticized mother – child relationships are challenged by women’s migration, potentially leading to allegations of mothers abandoning or putting their children at risk and subsequent family breakdown.77 In her study, Ducu describes the story of Mioara,78 which serves as a poignant example of the problems transnational mothers can face when arranging substitute caregivers for their children Mioara lived a true nightmare when her son, left in the care of two women, a neighbor and a friend, needed to undergo an urgent surgery The women took the child to the hospital and stayed with him, but when needed to sign for his complete anesthesia, everybody panicked since both parents were away and there was no legal tutor for the child in the country Mioara talked to the doctor on the phone and gave him her verbal consent, then sent him an SMS declaring this again.79 In most cases, when parents are away, the legal representation of children is not always adequately substituted As there is no formal break in the parent – child relationship, the state is not automatically involved In some cases – especially involving emergencies, such as medical care decisions – it may be unclear who is authorized to act and represent the child in loco parentis To address the problem of informal care arrangements, Romania enacted the Child Protection Law (272/2004) The law addresses the issue of parents working abroad in Chapter VI Section 4, under “Child Protection Against Abuse, Neglect, Exploitation and Any Form of Violence.” It imposes strict reporting rules when parents migrate for work, including declaring the alternative caregiver’s identity to the authorities.80 Beyond the child-protection objectives, social benefit authorities hope to be able to use parents’ self-reporting to adjust household information on parental income and decide to modify benefit levels, or erase certain dependent children from social care lists, given that their parents now have adequate foreign income In addition, the amended law imposes stringent regulations and penalties, narrowly defining time-frames and who can be named as an alternative guardian (only members of extended family) and requiring court approval of the arrangements This law seems to be somewhat out of step with the reality of transnational care arrangements This assessment is reinforced by the findings of Ducu suggesting 76 Hondagneu-Sotelo and Avila (1997); Dreby (2007); Salazar Parreñas (2005) 77 Carola Suârez-Orozco, Irina L G Todorova, and Josephine Louie “Making up for Lost Time: The Experience of Separation and Reunification among Immigrant Families.” Family Process 41, no (2002): 625–643.; see also Deborah A Boehm “‘For My Children’: Constructing Family and Navigating the State in the U.S – Mexico Transnation,” Anthropological Quarterly 81, no (December 25, 2008) 78 Ducu, 25 79 Ibid 80 Law No 272/2004 on the protection and promotion of the rights of the child (in Romanian) (Legea nr 272/2004 privind protecţia şi promovarea drepturilor copilului) www.dreptonline.ro/legislatie/legea_ protectiei_copilului.php; See in particular Chapter IV., Section – Child Protection with Parents Left to Work Abroad; Parents, or single parent who are about to go to work abroad have the obligation to report their plans to the local public social assistance and child protection service, at least forty days before leaving the country Parents must designate a person who will be taking care of the child This person will be confirmed by the guardianship court Alternative guardians must be over the age of eighteen and be part of the extended family with necessary material and moral conditions to meet their obligation Noncompliance carries penalties There are limited service provisions included mostly aimed at warning against the harms of leaving children behind 311 Edit Frenyo that parents generally perceive this law as “an abusive control of the state” against their private and family lives.81 The issue of supervision and care in the case of Romanian transnational motherhood is useful in highlighting the problem of meeting normatively prescribed and culturally reinforced motherhood-roles Child protection concerns are a legitimate point of entry for the state into family privacy However, the 2004 law places the matter of transnational parenting clearly within the context of child protection from abuse and neglect As such it reinforces state authorities’ tendency to pathologize families with migrant parents, especially mothers, using punitive measures, whilst the State continues to fall short of providing appropriate support82 mechanisms for parents to meet their obligations to protect transnational families’ right to the full enjoyment of privacy and family life Conclusion The case of transnational parenting – examined through some of its core elements such as contact, support and supervision – allows us to show that “family law” as understood by much of practice and theory is conceptually limited Through reconsidering inherited assumptions about the family, household and the concept of care, this contribution aims to highlight ways that family law is embedded in other domains of law, along with the law of the market and the law of the state, as well as in informal practices of family networks across the borders of Europe and the world This chapter warns of the ways and reasons officials and legal systems often fail to justice to migrant families and begins to rethink the theoretical underpinnings of legal systems to reconcile policy and theory with “real life.” Numerous policy initiatives could be pursued on national and EU levels to enhance the protection of parents and children in transnational families Everyone interested in family law and policy must be aware of the nature and consequences of living mobile family lives Since European family life is inevitably embedded in transnationalism, the laws, practices and policies relevant to the European transnational family must be too Bibliography Andrén, Daniela, and Monica Roman “Should I Stay or Should I Go? 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The Gendered Effect of Labour Migration and Transnationalism on the Institution of Parenthood in Ukraine,” Anthropology of East Europe Review 28, no (2010): 184–214 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol 1577, p 3, www.refworld.org/docid/3ae6b38f0.html (accessed June 22, 2018) UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), www refworld.org/docid/3ae6b3712c.html (accessed June 22, 2018) Van Hooren, F “When Families Need Immigrants: The Exceptional Position of Migrant Domestic Workers and Care Assistants in Italian Immigration Policy,” Bulletin of Italian Politics 2, no (2010): 21–38 Walker, Charles, and Svetlana Stephenson Youth and Social Change in Eastern Europe and the Former Soviet Union (London: Routledge, 2013) Zontini, Elisabetta Transnational Families, Migration and Gender: Moroccan and Filipino Women in Bologna and Barcelona 1st edn (New York: Berghahn Books, 2011) 315 Index Abbott J 85–86 abortion 5, 198–199; and gender equality 214; rights 211–216; self-induced 220 “abusive litigation” 140 ACHR see American Convention on Human Rights ACRWC see African Charter on the Rights and Welfare of the Child A.D and Another v D.W and Others 204 ADC see Aid to Dependent Children adolescents 197–198, 201 adoption 4, 175–190, 202–203; in Argentina 180–181; historical overview 176–182; and human rights 183–184; on the national level 176–181; “open” 177; placing black children with white families 179–180; in Poland 180–181; and same-sex partnerships 34; in the United States 176–177; see also intercountry adoption Adoption and Safe Families Act (ASFA) 1997 180 Adoptive Couple v Baby Girl 179 ADR see alternative dispute resolution ADRDM see American Declaration of the Rights and Duties of Man adultery 66, 67 AFDC see Aid to Families with Dependent Children African Charter on Human and Peoples’ Rights 32, 285; on family 195; on the Rights of Women in Africa (Maputo Protocol) 285–286 African Charter on the Rights and Welfare of the Child (ACRWC) 128, 182, 285; on early marriage 205; on family 195; on intercountry adoption 204; on religion 199–200 African Charter on the Rights of Women 211 African Court on Human and Peoples’ Rights 32, 285 age of consent 65, 198, 205 agunah 76–77 A.H and Others v Russia 184 Aid to Dependent Children (ADC) 178 Aid to Families with Dependent Children (AFDC) 179, 180 AIMPLB see All India Muslim Personal Law Board Alekseyev v Russia 35 Algeria 66 316 Algerian Family Code 200 alimentary duties 150 alimony 95, 268, 270–271 All India Muslim Personal Law Board (AIMPLB) 271, 272 alternative dispute resolution (ADR) 133; see also international family mediation alternative partnership 29 American Convention on Human Rights (ACHR) 32; on acquisition of child’s rights 198; on discrimination against non-marital children 201; on family 195, 196; on religion 199 American Declaration of the Rights and Duties of Man (ADRDM) 195, 196, 198 apartheid 32 approximation rule 138–139 Archbishop Parker’s table 13 Argentina: acquisition of child’s rights 198; adoption 180–181; family planning 199 ART see assisted reproductive technology ASFA see Adoption and Safe Families Act assisted reproduction 256–259; see also assisted reproductive technology (ART) assisted reproductive technology (ART) 129–132; donors 166; see also assisted reproduction Atalo Riffo v Chile 37 A.T v Hungary 282 Australia: child support 156; distribution of property on divorce 95, 100–101, 106; shared parenting 137 Austria 73; child abandonment 202; surrogacy 235, 236 autonomy: definition 213; and property agreements 96–99; right to 213 B v B 85 B v I (Forced Marriage) 20–22 “baby boxes” 202 Baby Boy v United States 198 Baby Cotton 226 “baby flaps” 202 Baby Gammy 225 Baby M 226 “baby-selling” 187 Index Bangladesh 19, 20, 200 Bangladeshi community 19 Barroso J 210, 220 Beijing Declaration 278 Beijing Platform for Action 213 Belgium: and CRC 200; divorce 71, 73, 101; surrogacy 235 beliefs 122 best interest test 133–134 Beth Din 76 Bharatiya Janata Party (BJP) 269, 272–273 Bible, the 226 BJP see Bharatiya Janata Party black children 179–180 Bodey J 20 brain development 135 Brazil 209–213, 217–222 Brexit 107, 108 Briggs LJ 28 British Columbia: distribution of property on divorce 101, 102, 105; multiple parentage 132 British Commonwealth 99 Brook v Brook 14–17 Brown, Louise 226 Brunei Darussalam 200, 203 Brussels IIa Regulation 171, 172, 173 Bulgaria 73 Bull v Hall 27, 39 Burns v Burns 22 California 22, 132 Cambodia 187 Campbell, Lord 15 Canada: child support 146, 155; distribution of property on divorce 101–102; misuse of the legal process 140 capital 95 Catholic Church: canonical annulment of marriage 76; and divorce 73; marriage prohibitions 13 CEDAW see Convention on the Elimination of All Forms of Discrimination against Women CEE see Central Eastern European region cellphones 305, 307 Central Eastern European region (CEE) 300–301 Charter for International Family Mediation Process 4, 114–115, 117 child abduction 117, 243; international co-operation on 117, 128 child abuse: and the approximation rule 138; disclosure of information on 119; and shared parenting 137 child allowance 146–147 child custody 4, 127–141; international context 128; joint 135, 136; multiple parentage 132–133; non-marital fathers 129–130; presumptions on setting 134–135; shared 152, 158; under Japanese Civil Code 245–246 child marriage 12, 13, 22 child pornography 231 child prostitution 231 children: adulterine 58; allocation of parental responsibility for 34; best interest of 7, 120–121, 133–134, 196–197, 230–231; black 179–180; de facto family 165–166; de jure family 165–166; and divorce 56, 64; and domestic abuse 135, 139–140; duty to support 4; early marriage 205; evolving capacity 128, 197–198, 199–200, 204, 205, 208; as holders of contact rights 162–164; implications of surrogacy 234–235; maintenance payments for 80; Native American 177–179; non-marital 201; participation in decision-making 128, 129; participation in international family mediation 121; personal relations and contact concerning 4, 161–173; protection from physical punishment 205–206; sale of 231, 234; wellbeing of 120–121; see also child custody; child’s rights; child support Children Left Behind 300 child’s rights 4–5, 97, 120–121; acquisition of 198; to family 4–5; to health advice and treatment 199; to know and be cared for by parents 181, 201–202, 231–232, 253; to life 232; to privacy in the family 206–207; to relationships with parents after separation 202; to religious choice 199–201; within the family 195–208 child support 144–158, 266; duty of 146–149; enforcement of 153–156; private responsibilities 147–149; setting the amount 150–153; and shared custody 152; termination of duties 156–157 China 189 Christine Goodwin v United Kingdom 36 Citizen’s Rights Directive 37 City of Westminster v IC (by his Friend the Official Solicitor) and KC and NN 19–21 civil law countries 104 civil law systems 148 Civil Partnership Act 2004 (CPA) 27 civil partnerships: and same-sex marriage 28; in South Africa 31; in the UK 27; see also Civil Partnership Act 2004 (CPA) Civil Union Act 2006 31, 40 “clean break” 80–81, 91, 95–96; Irish courts’ approach to 82–86 Clinton, Bill 180 COE see Council of Europe cohabitation 28 Coleridge J 22 college education 153 colonialism 99–100 comity 74–75 commissioning parents 227 confidentiality 119 conflicts law conflicts of law principles 17, 19, 20, 22 consanguinity Conseil constitutionnel 29 consent 2; to marriage 18–22; parental 18; to sexual relations 21 317 Index contact: direct 166; face-to-face 167; restrictions on 168–169 contraception 5, 177, 199, 208 Convention against Torture 280 Convention on Contact concerning Children 128, 161–164 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 183, 280–282; on health care 214; on marriage 12, 205; on reproductive rights 211, 214–215 Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) 18, 287–288 Convention on the Recognition of Divorces and Legal Separations 1970 73 Cotton LJ 15 Council of Europe (COE): on child custody 128; on same-sex partnerships 33, 36; on violence against women and domestic violence 287 cousins, marriage between 13–16 Cowan v Cowan 84–85 CPA see Civil Partnership Act 2004 CPC see Criminal Procedure Code Cranworth, Lord 15 CRC see United Nations Convention on the Rights of the Child criminal law 266 Criminal Procedure Code (CPC) 270 cross-border agreements 112–113 cross-border mediation 110–111 cruelty 66, 67 cultural awareness 121–122 cultural differences 121 cultural imperialism 21 cultural norms 122 cultural rights 183 cultural values 122 custodial responsibility 138 “custody stalking” 140 customary law 45 customary marriage 2–3; dissolution of 55–58; distribution of property 99–100; and divorce 55–68, 99–100; general framework 47–50; legal requirements for validity 46–51; proprietary consequences of 51–55; in South Africa 45–58 Cytotech 220 Czechoslovakia 202 Czech Republic 156 Danial Latifi v Union of India 271 death 58 Deceased Brother’s Widow’s Mar riage Act 1921 14 Deceased Wife’s Marriage Act 1907 14 Defense of Marriage Act (DOMA) 1996 29, 75–76 Denham J 80, 85 Denmark 74, 136 Department for Children, Schools and Families 18 318 desertion 66, 67 discrimination: defined 286; and same-sex marriage 38–40; and sexual orientation 36–39 “dishonorable” life 67 disobedience 66 divorce 3, 63–77; administrative 71–72; availability of 65; and children 56, 64; consensual 70–71; consequences of 56–58; contested 72; and customary marriage 55–58, 64; distribution of property 3, 93–108; extrajudicial 3, 69–70; fault-based 65–67; financial consequences of 3; foreign 3; grounds for 55–56, 65–68, 249; judicial 71; and “limping” marriages 76–77; no-fault 67–68, 96–97; patrimonial consequences of 56–57; procedure for obtaining 68–72; recognition of foreign 73–75; substantive requirements for 64–68; unilateral 72; see also Divorce and Matrimonial Causes Amendment Act 2010; post-divorce maintenance Divorce Act 1979 56 Divorce and Matrimonial Causes Amendment Act 2010 99 DOMA see Defense of Marriage Act domestic abuse 140; and child custody 136, 138; misuse of the legal process 140; protecting children from 135, 139–140 domestic violence: categorisation of 276; defined 288; normative developments on 276–290; and regional human rights system 282–290 donor children 130–132 drunkenness 66 dual domicile rule 15–17, 19 dual domicile test 17 Due Process Clause 29 early marriage 205 E.B v France 184 ECHR see European Convention on Human Rights ECtHR see European Court of Human Rights economic rights 183 Egypt 70, 268 Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt 286 Employment Equality Directive 36 enforcement: of child support 153–156; of contact rights 169–173 England: distribution of property on divorce 95, 103; fathers’ rights groups 137; surrogacy 236 English Law Commission 16, 19, 22 equal division 94–95 equality 94–95 Errmia and Others v The Republic of Moldova 289 Estevez v Spain 34 ethnic communities 14 European Charter of Fundamental Rights 12, 37, 302, 308 Index European Code of Social Security 303 European Commission: harmonisation of matrimonial property laws 106–107; rules on divorce 73 European Convention on Contact Concerning Children 128 European Convention on the Exercise of Children’s Rights 128 European Convention on Human Rights (ECHR) 166; on child custody 128; on domestic violence 289; on religion 199; on right to marry 12; on same-sex partnerships 25–28, 32–34, 36; on surrogacy 228–232 European Court of Human Rights (ECtHR): on family life 302–303; on intercountry adoption 184; on paternal equality 130; on personal relations and contact concerning children 165; on the right to marry 12; on same-sex partnerships 33–34, 36–39, 41 European Parliament 106 European Union (EU): Brussels IIa Regulation 171, 172, 173; child support 146; divorce in 73–74; Rome III Regulations 74; same-sex marriage 36–38, 73; transnational families in 299–312 Experts’ Group on Cross-border Recognition and Enforcement of Voluntary Agreements in Family Matters involving Children 112–113 Experts’ Report see Note on the Financial Aspects of Intercountry Adoption family: definition 196; recognition in human rights instruments 195–196; state regulation of 6; as “tool of society” 266; women as synonymous with 277 Family Law Act 1975 106 Family Law Act 1986 19, 20 Family Law Act 1990 101 Family Law Act 1995 83 Family Law Act 2011 101 Family Law (Divorce) Act 1996 82–85, 88–89; on post-divorce maintenance 89–92 Family Law Exceptionalism project 297–298 Family Law (Maintenance of Spouses and Children) Act 1976 82, 83 Family Law (Scotland) Act 1985 87 family life: protection of 228–230; and transnational families 305–308 family planning 199; see also contraception family property ownership 13 Family Reunification Directive 37 family support 145, 150 fathers’ rights 5–6, 242–260 fathers’ rights groups 137 female sexual freedom 215 female sexuality 215 feminism 218, 227 FHA program 147 Fifth Amendment 29 Filmer, Sir Robert 63 financial relief 19–23, 81 Fiqa 203 forced marriage 18–20 Forced Marriage Protection Orders 19, 21 Forced Marriage Unit 19 forum non conveniens 105 foster care 177–178, 180, 185 Foucault, Michel 266 Fourth World Conference on Women (FWCW) 211–212 France: child’s rights 198; divorce 72, 73, 101, 106, 107; same-sex marriage 26; surrogacy 235 freedom of choice 97 free movement 37 Fretté v France 34, 185 full faith and credit clause 75–76 FWCW see Fourth World Conference on Women gays 97, 189; see also homosexuality; lesbianism gender: bias 135, 138; discrimination 183, 215; equality 5, 7, 64, 211, 213–214, 243, 246, 310; reassignment 36 Gender and Community: Muslim Women’s Rights in India 269 General Assembly Declaration on the Elimination of Violence against Women 279–280 Germany: child abandonment 202; divorce 73, 101, 103, 106; surrogacy 235, 236 get 76 global family 110; see also international families global North 218–219 global South 218–219 global women’s movement 218 Goekce v Austria 282 grandparents 148 Greece 156, 235 Guatemala 198 Gumede v President of the Republic of South Africa and Others 52, 56–57 Guttmacher Institute 220 H v H 91 Hague Conference on Private International Law 4, 111–113, 238 Hague Convention on the Civil Aspects of International Child Abduction 110–112, 173, 243 Hague Convention Concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Infants 170, 171 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 154–155 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental 319 Index Responsibility and Measures for the Protection of Children 163, 171 Hague Convention on Matrimonial Property 107 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 166, 175, 182, 183, 185–187, 203–204 Hale, Lady SCJ 27, 39, 97 Hannen, Sir James 16 harmonisation of law 93 Hayden J 21 “head of household” 247 health advice 199 health care 214 Henry VIII 13 Holy See 196, 198, 199, 200, 207 homosexuality 38–39, 185 honour killings 268 Hudson v Leigh 20, 21 Human Fertilisation and Embryology Act 2008 236–237 human rights: and abortion 211–213; and intercountry adoption 182–186; and surrogacy 228–234; see also rights Human Rights Act 1998 27 Human Rights under State-Enforced Religious Family Laws in Israel, Egypt and India 267 “humiliating crime” 67 Hungary 41; divorce 73; transnational families 304, 306 IACtHR see Inter-American Court of Human Rights ICCPR see International Covenant on Civil and Political Rights ICESCR see International Covenant on Economic, Social and Cultural Rights ICPD see International Conference on Population and Development ICWA see Indian Child Adoption Welfare Act 1978 iddah 69; see also iddat iddat 271 impartiality 120 “implacable hostility” 139 incest 15–16, 55, 65 income 95 income support 95 India: adoption 176; divorce 70–71; family law as tool of governance 265–267; Muslim personal laws 268–273; surrogacy 189 Indian Adoption Project 177–179 Indian Child Adoption Welfare Act 1978 (ICWA) 178–179 Indian community 19 inequality 221 information and communication technologies (ICT) 305 320 inhlanti 58 insanity 67 institutionalisation 185 intended marital home test 17 Inter-American Commission on Human Rights 198, 283 Inter-American Commission on Women 283 Inter-American Convention on the International Return of Children 172 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belém Pará) 282–284 Inter-American Court of Human Rights (IACtHR) 37–38, 282 intercountry adoption 203–204; and children in crisis 181–182; decline in 189–190; experts’ groups 188; financial abuses 187; and human rights 182–186; legal framework and standards 186–188; see also adoption International Bill of Rights 183 International Conference on Population and Development (ICPD) 211–212 International Convention on Civil and Political Rights 280 International Covenant on Civil and Political Rights (ICCPR) 32, 38, 183; on family 195, 196; on right to religion 199 International Covenant on Economic, Social and Cultural Rights (ICESCR) 183; on family 195; on religion 199 international families 110–111; see also transnational families international family mediation 3–4, 110–122; child participation 121; collaborative process 114–116; confidentiality 119; decision-making 118–119; impartiality 120; independence 119, 120; legal advice 119; principles in 116–122; rights and the interests of the child 120–121; suitability of 118; voluntary agreements 112–113; voluntary participation 118; see also international family mediators international family mediators 121–122; see also international family mediation internationalisation 93 International Social Service (ISS) 114–117 Internet 155, 306–307 Iraq 200 Ireland: child support 156; divorce 68, 82–92 Irish Constitution 88 Islamic law: adoption 176; and CRC 200; divorce 66, 69–70, 100; prohibitions on marriage 13; see also Islamic states Islamic states 200, 201; adoption 203; divorce 64, 69–70, 73; see also Islamic law Islamisation 70 isondlo 57 Israel 73, 236 Index ISS see International Social Service Italy 41, 73 IVF 226; see also assisted reproduction Japan: child support 156; divorce 71, 72, 249; family registry system 247–250; fathers’ rights 5–6, 242–260; see also Japanese Civil Code Japanese Civil Code 243–249; assisted reproduction 256–259; divorce 249–250; foreigners 259–260; legitimacy 256; “nontraditional” family structures 256; parental authority 246–248, 252–255; presumptions of paternity 256–259; rights of access 243–245, 253–256; rights of custody 245–246, 255–256 J.D v D.D 82, 85 Jessica Lenahan (Gonzales) v United States 284 Jewish law 76–77 Jezile v S 48 Jordan 200 Joslin v New Zealand 32, 33 “judicial terrorism” 140 jus sanguinis 258 jus solis 258 K v K 82–84, 91 kafalah 5, 176, 185, 202–203 Keane CJ 85, 86 kenela 58 Kennedy J 29–30, 32, 38, 39 Kennon v Spray 101 Kenya 99, 100 ketubah 76 Kiribati 196, 207 Korea: adoption from 181, 186; child support 156; divorce 71–72 Korean War 181 koseki 5, 247–251 KwaZulu-Natal 46–48, 54 Ladele v United Kingdom 39 Latin America 99 Latvia 73 Lavan J 83–85 LBP see Left-Behind-Parent Left-Behind-Parent (LBP) 243 legal pluralism 267–268 legal process misuse 140 legitimacy 216–219, 256 lesbianism 38–39, 184 lesbians 97 lex fori 16, 105 lex loci celebrationis 14, 15, 20, 22 lex loci contractus 106 lex situs 106 LGBTQ partnership 29 LGBTQ rights 41 “lifting the corporate veil” doctrine 97 Lithuania 41, 73 lobolo 45, 47–50; and children 57–58; and divorce 56–58; traditional functions of 49 Luxembourg 73, 107; child’s rights 198; and CRC 202 Mabena v Letsoalo 49 Mabuza v Mbatha 49 Mahmood, Saba 267, 268 mahr 76 Maldives 200 Malta 68, 73 Maluleke v Minister of Home Affairs 49 Mance LJ 84 Maria da Penha Law 284 Maria da Penha Maia Fernandes v Brazil 284 marital status 2, 248 marriage 2, 11–23; between cousins 13–16; canonical annulment 76; companionate 63; consent to 18–22; cross-border 12; definitions 29; dual domicile rule 15–17, 19; early 205; equality in 94–95; forced 18–20; foreign 2, 15–16; “irretrievable breakdown” of 67; “limping” 76–77; negotiations 48; nonrecognition of 2, 15, 17, 19–23; nullity of 20–22; as partnership 94, 97; polygamous 22, 51, 54, 56, 64, 100; as a prerequisite for divorce 64; prohibitions on 13–18; protection against harmful practices 12; recognition of 11–14; refashioned concept of 94; state ownership 17; traditional view of 94; voidable 19; see also child marriage; customary marriage; same-sex marriage Marriage Act 1961 31 Marriage Commissioners Reference 40 Marriage (Same Sex Couples) Act 2013 27 Marriage of Brantner, Re 88 Married Women’s Property Act 1882 97, 99 Masterpiece Cakeshop v Colorado Civil Rights Commission 39 Matrimonial Causes Act 1973 20, 67, 96–97 matrimonial property 93; harmonisation of law 106–107; private international law 104–106 Matrimonial Property Act 2013 99, 100 Mawson v Mawson 80 Mayelane v Ngwenyama 50–51, 54–55 McFarlane v United Kingdom 39 McGuiness J 82–85, 90 Mechanism to follow up on Implementation of the Convention (MESECVI) 283 Mediation in Certain Divorce Matters Act 1987 56 Medicaid 146 medical care 146 medical treatment 199 mental violence 135 MESECVI see Mechanism to follow up on Implementation of the Convention 321 Index Mexico 156 Miller v Miller: McFarlane v McFarlane 88 Mindszent 304 Minister of Home Affairs v Fourie 31, 38, 40 Ministry of Foreign Affairs (MOFA) 245–246 miscarriages 58 misoprostol 220 Mississippi Band of Choctaw Indians v Holyfield 178–179 Mmutle v Thinda and Another 50 Modi, Narendra 272 MOFA see Ministry of Foreign Affairs Mohd Ahmed Khan v Shah Bano Begum & Ors (Shah Bano) 270–272 Moldova 41 Mongolia 207 Morocco 65, 69–70; and CRC 200 Mostyn J 88 Moylan J 20 MPL see Muslim Personal Law Multiethnic Placement Act 1994 177 Muslim Personal Law (MPL) 265, 268–273 Muslim Women’s (Protection of Rights on Divorce) Act, 1986 (MWA) 271 MWA see Muslim Women’s (Protection of Rights on Divorce) Act, 1986 Mxiki v Mbata, In Re: Mbata v Department of Home Affairs and Others 49 Narain, Vrinda 269 Native American children 177–179 Ndlovu v Mokoena and Others 49 Netherlands: adultery 66; and CRC 201; matrimonial property 107; surrogacy 236, 237 Netshituka v Netshituka and Others 52 New York 65 New Zealand: child support 156; distribution of property on divorce 96, 98, 99, 100, 103; misuse of the legal process 140; private international law on matrimonial property 104–106; surrogacy 236 Nigeria 41 non-discrimination protections 38–40 non-governmental organizations (NGOs) 114, 182, 188 non-marital births 129 non-marital fathers 129–130 non-marriage 22 non-parents: categories 165; personal relations and contact concerning children 165–167 Nordic countries 106 Norway 136 Note on the Financial Aspects of Intercountry Adoption (Experts’ Report) 188 OAS see Organization of American States OAU see Organization of African Unity Obergefell v Hodges 12, 29, 30, 32, 38, 73, 76 322 Oireachtas 83, 85 Oliari v Italy 35, 38 Oman 200 Ontario 132; distribution of property on divorce 101, 102, 103, 105 Opuz v Turkey 289 Organization of African Unity (OAU) 285 Organization of American States (OAS): InterAmerican Convention on the International Return of Children 172; Protocol of San Salvador 164 Orphan Trains 176 P v R 22 PACS see Pacte Civil de Solidarité Pacte Civil de Solidarité (PACS) 26, 28–29 Pakistan 19, 20, 21, 70 Pakistani community 19 “paper abuse” 140 parentage: of donor children 131–132; multiple 132–133 parental authority 196, 200, 207, 245–250, 252–254; and Japanese Civil Code 246–248, 252–255 parental duties 253 parental involvement 135–136, 138 parental leave 147 parental responsibility 73, 127–129 parental rights 196, 251–255 parenting: “alienation” 139; and gender bias 135, 138; shared 136–138; time 137–138 parents: adoptive 184–185; commissioning 227; de facto 132, 165–166; duty to support children 146, 147; human rights of 184–185; implications of surrogacy 232; right to personal relations and contact with children 164 paterfamilias 129 paternity: establishing 129–130; presumption of 131, 256–259 Pennsylvania 132 pension schemes 102 personal laws 265, 268; Muslim 268–273 Personal Responsibility and Work Opportunity Reconciliation Act 1996 180 Personal Status Litigation Act 2003 249 physical punishment 205–206 physical violence 135 Poland: adoption in 180–181; child support 157; and CRC 196, 200, 202, 207; divorce 71 polygamy 2, 3, 12, 45, 69; see also marriage polygyny 3, 45, 55 Portugal 15–16, 74; distribution of property on divorce 101; surrogacy 235 post-divorce maintenance 3, 79–92; compensation model 87–88; for the benefit of the child 80; in Ireland 82–92; long-term payment 81–82, 88–89; maintenance orders 91–92; Index rationales for 79–88; rehabilitative model 87; in Turkey 66 Potter, Sir Mark 27 pregnancy 219–221 premarital agreements 149 President of the Republic of South Africa and Another v Hugo 195 Prest v Petrodel Resources Ltd 96–97 presumptions 134–135 privacy 206–207 private international law: contact rights 170–173; matrimonial property 104–106; see also conflicts law, conflicts of law principles private life 228–230 property: community 102, 103; definition 100–101; distribution on divorce 93–108; final 101; initial 101; personal 102; relationship 102; separate 102; see also matrimonial property; property agreements property agreements 97–99 Property (Relationships) Act 1976 96 prostitution 281 Protocol of San Salvador 164 PSC v LPM 49 public education 146, 147, 286 public policy 14–18, 20–23, 38, 74–75, 98, 106, 258–259 Qatar 200 Quran 70, 272 R v Morgentaler 217 racial discrimination 183 Radmacher v Granatino 98 Raisiba Maria Mathaba v Minister of Home Affairs and Others 49 Ramuhovhi and Another v President of the Republic of South Africa and Others 52 RCMA see Recognition of Customary Marriages Act 120 of 1998 real and substantial connection test 17 “reasonable chastisement” 206 Recognition of Customary Marriages Act 120 of 1998 (RCMA) 45–46, 48–56 religion 199–200; and the private sphere 267 religious beliefs 38–40 Religious Difference in a Secular Age: A Minority Report 267 Report on Aliment and Financial Provision 87 reproductive health 219–222 reproductive rights 5, 209–222; as human rights 211; transnational consensus 216–219 Resolving Family Conflicts: A Guide to International Family Mediation 114 Richards JA 40 rights: to autonomy 213; to equality 37; to health care 214; to liberty and security 213; to life 232; to marry 12, 14, 37; parental 196, 251–255; to physical and psychological integrity 213–214; to privacy 37; sexual 215; see also child’s rights; fathers’ rights; human rights; reproductive rights roaming charges 305 Roe v Wade 217–218 Romania 74; adoption from 204; transnational families 300–301, 304–305, 307 Rome III Regulations 74 R (Steinfeld and Keidan) v Secretary of State for International Development 27, 28 RS, Re 21 Russia 189 Russian Federation 41 S.A v P.A (Pre-marital agreement: Compensation) 88 Sachs J 31, 32, 38 Sadat, Anwar 70 SALC see South African Law Commission same-sex couples: access to assisted reproductive technology 131–132; availability of divorce 75–76; right to marry 75 same-sex marriage 2, 3, 13, 25–42; and civil partnership 27; and conflicts of rights 38–40; and divorce 73, 75–76; international requirements 32–38; prohibition of 12; protection from discrimination 38–40; religious and philosophical objections to 39–40 Same Sex Marriage (Prohibition) Act 2014 41 same-sex partnerships: international requirements 32–38; legal recognition in national law 26–32, 35, 41–42; see also same-sex couples; same-sex marriage; same-sex relationships same-sex relationships 2, 25, 31, 35, 37, 41; see also same-sex marriage; same-sex partnerships Samoa 67, 99–100 Saudi Arabia 200, 201 Schalk and Kopf v Austria 34–37 Scotland 103, 206 Scotland, Baroness 27 Scottish Law Commission 87 sororate 58 sexual activity 198, 205 sexual orientation 36–39 sexual relations 21, 39, 66 sexual rights 215 Sezgin, Yüksel 267–268 SH v NB 20 shared custody 152, 158 shared parenting 135–138 Sharia 69 Shariat law 268–270 Singapore 200, 206 slavery 179 Slovakia 199, 202 Slovenia 74 Smith JA 40 323 Index SNAP program 147 social change 6–7 social discrimination 213, 215–216 social rights 183, 299, 302, 308 Social Security Act 1935 150, 178, 179 social security benefits 34 social services Social Welfare (Consolidation) Act 1993 89 solidarity 94, 97 Solomon Islands 100 Somalia 200 sororate 58 Sotomayer J 179 Sottomayer v De Barros No 15, 16 Sottomayer v De Barros No 15 South Africa 20; community of property 98–99; customary marriage 45–58; matrimonial property 105, 106; paternal equality 130; private international law 105, 106; “reasonable chastisement” 206; same-sex marriage 26, 31–32, 40 South African Constitution 45 South African Law Commission (SALC) 50 Southon v Moropane 50 Spain 74, 101 Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health 214 state: and family 6; recognition of marriage 11–12 step-parents 148–149 St Leonards, Lord 15 substantive equality 215–216 Sumption, Lord 97 support 66; see also child support surrogacy 5, 131–132, 189, 225–238; and best interest of the child 230–231; cross-border cases 237–238; forms of 227; gestational 227; and human rights 228–234; implications of 232–235; national approaches to 235–237; origin 226; recent data 226–227; traditional 227; ways forward 237–238 surrogate mothers 232–233; see also surrogacy Swazi, the 49, 54, 57–58 Sweden: divorce 68; joint custody 136; legislation against physical punishment 206 Switzerland: divorce 71; surrogacy 235, 236 Syria 200 T v T 82, 84, 85, 86, 91 talaq 65, 68–70, 272 talaq-e-tafweez 70 TANF see Temporary Assistance to Needy Families Temporary Assistance to Needy Families (TANF) 147, 180 TEU see Treaty on European Union Thailand 189 Thorpe LJ 20, 21, 80 324 transnational families 295–312; in the EU 299–312; protection in human rights instruments 301–312; provision of support in 308–309; right to contact in family life 305–308; supervision and child care arrangements 310–312 transnational households 296–299 transnational parenting trauma 135 Treaty on European Union (TEU) 74 Troxel v Granville 242 trusts 101 Tunisia 69, 198, 201 Turkey: adultery 66; grounds for divorce 66, 67; post-divorce maintenance 66 UCC see Uniform Civil Code UDHR see Universal Declaration of Human Rights Ukraine 41, 236 ukungena 58 ukuthwala 48 Uniform Civil Code (UCC) 270 Uniform Marriage and Divorce Act 1970 106 United Arab Emirates 200, 203 United Kingdom: assisted reproductive technology 132; children in surrogacy families 234; and CRC 201, 202; child’s rights 198; nondiscrimination 38; same-sex marriage 26, 27 United Nations (UN): mechanisms 278–80; treaty system 280–282; on violence against women 277–282; world conferences and meetings 277–278 United Nations Committee on Economic, Social and Cultural Rights 33, 37 United Nations Convention against Transnational Organized Crime, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 18 United Nations Convention on the Rights of the Child (CRC) 120, 128–129, 134, 136–137, 198; adoption 196–197, 203–204; best interest of the child 230–231; early marriage 205; family 195–196; general principles 197; identity 181; personal relations and contact with parents 161–163, 201–202, 231–232; physical punishment 205–206; privacy 206–207; religion 199–200 United Nations Economic Commission for Latin America and the Caribbean 215 United Nations General Assembly’s (UNGA) 1959 Declaration of the Rights of the Child 197 United Nations High Commissioner for Human Rights 33, 41 United Nations Human Rights Committee 32–33 United Nations International Conference on Population and Development 278 United Nations Special Rapporteur on Violence against Women 277, 279 United Nations World Conference on Human Rights 278 Index United States: abortion law 217–218; adoption 176–177, 189; alimentary duties 150; child support 146–147, 150–156, 158; comity 74–75; Constitution 12, 29; and CRC 196, 201; divorce 74–76, 103, 106; full faith and credit clause 75–76; marriage law 12, 13, 14; matrimonial property 104; medical care 146; post-divorce maintenance 80; private international law 104; same-sex partnerships 29, 73, 75–76; same-sex marriage 26 United States v Windsor 29, 32 Universal Declaration of Human Rights (UDHR): on discrimination against non-marital children 201; on family 195, 277 universal human rights 12 universalism 218 welfare system 266 “welfare test” 133 Wensleydale, Lord 15 White v White 84 WHO see World Health Organization Wilkinson v Kitzinger 27 women: as synonymous with family 277; domestic violence against 276–290; human rights of 211–216; property rights 97; right to equality with men 12; violence against Women Protection Act 2006 70 World Health Organization (WHO) 215, 220 World War II 97 Vallianatos v Greece 34, 35, 38 Vienna Declaration of Programme of Action 278 Vietnam 187 V.K v Bulgaria 282 Y.G v N.G 86 Yildirim v Austria 282 Young v Australia 33 Wales 137, 236 Wall LJ 21 X v Colombia 33 Zambia 66 Zika infections 221, 222 Zulu 57 325 ... School of Law at Hofstra University, where she teaches Family Law, International Law, Human Rights, and International Family Law Jacqueline Heaton is Professor of Law at the University of South... specialises in Family Law, Law of Persons, and Child Law Routledge Handbook of International Family Law Edited by Barbara Stark and Jacqueline Heaton First published 2019 by Routledge Park Square,... field of national and international family law Barbara Stark is Professor of Law and Hofstra Research Fellow at the Maurice A Deane School of Law, Hofstra University, New York, USA She teaches Family