Do Americans Play Football?
Ira Mark Ellman
Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley
International Journal of Law, Policy and the Family, Vol. 19, Issue 2, pp. 257-276, 2005
The English approach to property and periodical awards in divorce cases, as exemplified by the decision in the McFarlane and Parlour cases, is compared to the American approach, as exemplified by the Principles of the Law of Family Dissolution, adopted in 2000 by the American Law Institute (ALI). It is suggested that these two English cases seem more alike to English courts than they would to American, because the English analysis places little or no emphasis on a factor that American practice generally regards as important - the duration of the parties` relationship. The ALI`s analysis urges a formulaic approach to financial settlement that emphasizes the relationship`s duration, while rejecting financial need as a useful concept upon which to base a decision rule. In contrast, the English decision in these two cases pays little attention to duration while giving attention to need. The American approach is explained and defended. Finally, O`Brien, a well-known American precedent rejected by Mr Justice Thorpe, is discussed. It is argued that difficulties inherent in the O`Brien rule explain not only its widespread rejection by other American courts, but also why the English decision in Parlour and McFarlane is correct in its somewhat reluctant conclusion that different rules should apply to the division at divorce of capital and of income.
Date posted: February 29, 2008
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