The Principle of Good Faith in Legal Procedures of Family Law
43 Hebrew University L. Rev. 293 (2012)
58 Pages Posted: 13 Dec 2012 Last revised: 5 Mar 2016
Date Written: November 12, 2012
This article proposes a normative model for coherent application of the principle of good faith in the legal procedures of Family Court. The first part of the article deals with the normative-principled aspect of the issue and proposes an approach for adapting the application of the principle to purposes for which the Family Court was founded. The proposed model considers both the substantive and procedural purposes for which the Family Court was established. It can be divided into three levels: the central component is an intermediary standard, higher than the standard of procedural good faith but lower than that of contract good faith. The behavior of a party to the case would usually be examined on the basis of this standard, because the parties to a family dispute are somewhere on the continuum between adversarial parties and parties who are partners in a contract. The second standard is the higher standard of contract good faith. The third standard is lower, that of procedural good faith. The latter standards would be applied when the purpose of a particular proceeding requires their use. This flexible model would shape the level of appropriate behavior in all proceedings, and also assist in determining the appropriate remedy in the event that the standard of good faith has been violated.
Analysis of positivist rulings, in the second portion of the article, shows that good faith norms are currently applied in family law on an entirely intuitive basis without following any clear model. Furthermore, the remedies awarded are inconsistent with the nature of a familial dispute. It seems that if the principle were applied consistently and in accordance with a model that considers the purpose for which the Family Court was established, different decisions might have been made. The article examines several issues in family law and applies the proposed model to them. This article is the first attempt to determine a coherent model for applying this principle to legal procedures in Family Court. As such, it is the initial effort to reconcile the tension created when applying the principle of good faith on the procedural level.
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Keywords: Good Faith, procedure, Family Law, family court, contract good faith, family dispute, procedural
JEL Classification: K39, K40, K49
Suggested Citation: Suggested Citation