Family Law and the Indissolubility of Parenthood

Abstract:     
Few areas of public policy around the Western world today involve as much conflict as the law of parenting after separation. The thesis of this Article is that many of these conflicts derive from the breakdown of the model on which divorce reform was predicated in the late 1960s and early 1970s. That model presupposed that divorce could end the relationship between parents in such a way that people could get on with their lives with only residual ties to their former partners. However, international trends suggest that there has been an irreversible shift towards a model of post-separation parenting which assumes that the family endures despite the separation of the parents. However, there has been no such fundamental conceptual re-evaluation which offers a new theoretical framework for policy formulation on family law issues. The consequence is that courts and legislatures around the Western world are now grappling with a tension between two irreconcilable conceptualizations of what divorce means when there are children. Resolving this tension has profound implications for family law and policy both in the United States and other countries.

Keywords: Divorce, Family, Children, Parenting

JEL Classifications: K39

Accepted Paper Series