Vol. 17 No. 2 (February, 2007) pp.143-146

 

INTERNATIONAL FAMILY LAW:  AN INTRODUCTION, by Barbara Stark.  Aldershot, UK, and Burlington, VT:  Ashgate Publishing Ltd, 2005.  288pp.  Cloth. $124.95/£65.00. ISBN: 0754623416.  Paper. $39.95/£25.00.  ISBN: 0754623475.

 

Reviewed by Alice Hearst, Department of Government, Smith College.  E-mail:  ahearst [at] smith.edu.

 

Family law historically has had a distinctly local flair, reflecting the norms and beliefs of particular communities; state codes were idiosyncratic, and lawyers had to be aware of local concerns when meeting their clients’ domestic needs.  When American families became more mobile, American family law shifted as states adopted uniform codes to facilitate the regulation of family lives across state boundaries.  The current generation of family lawyers is acutely aware of the need to understand where family regulations diverge and converge from one state to another.  They routinely deal with coordinating state regulatory schemes in matters varying from divorce and custody to domestic violence to child abuse and neglect to reproductive rights.

 

Today, families frequently cross not just state but national boundaries.  Family law practitioners may find themselves called upon to resolve family conflicts not just from Nebraska to South Dakota, but from Nebraska to Ethiopia or Bulgaria.  And it is not just the laws of other nation-states that lawyers must understand.  In the last fifty years, a variety of international conventions and declarations have emerged in the realms of both public and private law, each of which may affect the resolution of particular family law disputes. 

 

Questions about transnational and international family law are often overlooked in law school classes on the assumption that the issues are either too remote from most family law practices to warrant extended attention or are simply too complex to cover adequately.  Barbara Stark’s INTERNATIONAL FAMILY LAW:  AN INTRODUCTION nicely fills that lacuna.  This slim volume alerts students to the complex range of factors that must be attended to when family disputes cross national boundaries.  The book provides a much needed addition to the family law curriculum. 

 

Stark, Professor of Law at Hofstra University, has long been interested in the intersections of family and international law.  As she notes in the introduction to the book, families are not immune from the pressures of globalization:  they are themselves adapting.  But that adaptation works in a number of different directions.  As she notes, “[e]ven as ties to [national/local] traditions become increasingly attenuated, their appeal may become even stronger” (p.1).  Thus, cultural differences may, paradoxically, become more important than ever in resolving family conflicts.  The very fact of those cultural differences makes it important to look at family law from an international perspective that incorporates a comparative understanding:  “[T]he emphasis [in the [*144] book] is on the legal mechanisms devised by the international community to resolve or reconcile the different perspectives that a study of comparative family law reveals”  (p.3). Moreover, the tools that the international community has developed operate in both public and private law arenas.  A variety of Hague Conventions, for example, provide guidance in specific subject matter areas, such as adoption or child abduction, in addition to various bilateral treaties among nation states.  Those private law agreements, however, must increasingly be squared with the requirements proposed in a growing number of international human rights instruments that touch on family life, from the Convention on the Rights of the Child (CRC), to the Convention on the Elimination of Discrimination Against Women (CEDAW), to the Draft Declaration on the Rights of Indigenous Peoples. 

 

The book is divided into a number subject matter areas:  marriage, non-marital partnerships, adoption, divorce (status, support and property), reproductive rights, issues around children (visitation, custody and abduction, and support), domestic violence and, finally, the human rights of individuals and the family itself.  Each chapter begins with a representative problem, then gives an overview of the relevant legal principles, notes cultural variations that might affect the problem, and then draws the reader’s attention to private and public laws, regional conventions and specific national laws that must be considered in an analysis.  The chapter concludes with information from various international and non-governmental organizations that have been concerned with these areas, and then suggests a possible resolution to the problem articulated at the outset.

 

A quick reading of any of the sample problems gives a sense of how complicated the issues are.  For example, Chapter 4, Divorce, imagines an Egyptian man with two wives, both of whom he married in Cairo, who moves to Paris.  Both wives have children; the older wife’s children are grown, while the younger wife’s son is quite young.  Both wives want a divorce when it appears that their husband is involved with another woman.  One wants to return to Egypt, while the other wants to remain in Paris.  What complications arise around issues of terminating one or both marriages?

 

Chapter 4 begins with a quick overview of the principles that appear to underlie the practice of divorce in most societies:  protecting vulnerable spouses and assuring support for children while allowing spouses to part ways in the least socially disruptive fashion.  The chapter then discusses some of the cultural differences that are likely to emerge around issues of divorce:  whether fault constitutes grounds for divorce in most societies and what, in different cultural contexts, amounts to fault.  Adultery, for example, may be grounds for a fault-based divorce in some societies but not in others, or the rules for adultery may vary depending upon whether the allegedly adulterous partner is the husband or the wife.  The chapter moves on to outline the relevant private law convention (the Hague Convention on the Recognition of [*145] Divorces and Legal Separations), as well as provisions from CEDAW and the International Covenant on Civil and Political Rights and the regional convention reflected in the European Council regulations on divorce.  The chapter notes specifics of the French law of divorce, and takes a brief look at what various international human rights organizations have articulated as general standards relevant to questions of marital status.  Interspersed in this brief overview of relevant principles in France and Egypt, Stark has asides on the law of divorce in India, Uganda, and Russia, and excerpts about Chinese and Indian marriage law.

 

The chapter concludes by returning to the hypothetical, which reveals a dizzying array of issues:  the second wife will not be considered married under the laws of France and thus may have difficulty obtaining support for herself (although perhaps not her minor son).  Stark points out that the refusal to recognize polygamous marriages, a major thrust of many international human rights statements which tend to view polygamy as harmful to women, thus puts the second wife into a very difficult position if she lives outside of Egypt.  This same wife may, nonetheless, be required to obtain a divorce in Egypt, should she return.  The first wife may obtain a divorce, but that divorce may or may not be recognized in Egypt upon her return, which will affect her ability to support herself in the long run. 

 

It must be said that the first reaction of any student reading any given chapter is likely to be one of despair:  the issues are unbelievably complex, and it would be tempting for students simply to throw up their hands in defeat.  But law students will recognize the challenge, and will return to parse out the pieces of the puzzle.  The book does an excellent job of teaching students to be aware of the enormous spectrum of laws, conventions, policy statements and cultural practices that must be considered in resolving transnational family conflicts, but it can necessarily only scratch the surface. It is just what it claims to be:  an introduction whose primary purpose is to raise awareness of the convoluted nature of the issues.

 

There are a few technical problems with the book, attributable to Stark’s decision to give a very broad overview and her decision to utilize primary sources where possible.  Sometimes, the book relies directly on excerpts from reports of international agencies, policy statements, and snippets of public and private national and international laws.  At other times, Stark synthesizes materials, sometimes as brief riffs within a descriptive section, but occasionally as a separate segment within a particular section.  In the section on national laws governing marriage in Chapter 4, for example, the laws of France, India and China are directly excerpted, but the section on Russia is the author’s own synthesis.  This interpolation of materials is occasionally confusing and often jarring, as the various excerpts change emphasis, voice and audience.  Reading can therefore be slow.

 

This book is geared primarily at law [*146] students.  The ‘problem’ approach utilized in the book speaks clearly to law students who are used to the ubiquitous legal hypothetical, but it would be difficult for non-law students to follow the intricacies of each set of rules as they bear on these problems.  It is nonetheless quite a useful book for scholars both inside and outside of the law:  transnational regulation of the family figures prominently in current work by scholars in disciplines across the social sciences spectrum.  Legal academics will be spurred to look into the convoluted legal webs that the book reveals, while non-legal academics will gain a clear sense of the irreducible complexity of the issues. 

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© Copyright 2007 by the author, Alice Hearst.