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Family Law

Historical Background

Most of the changes made in family law in the late twentieth century have been based on overturning concepts of marriage, family, and gender that go back to European FEUDALISM, canon (church) law, and custom. During Anglo-Saxon times in England, marriage and divorce were private matters. Following the Norman conquest in 1066, however, the legal status of a

married woman was fixed by COMMON LAW, and CANON LAW prescribed various rights and duties. The result was that the identity of the wife was merged into that of the husband; he was a legal person but she was not. Upon marriage, the husband received all the wife's PERSONAL PROPERTY and managed all the property owned by her. In return, the husband was obliged to support the wife and their children.

This legal definition of marriage continued in the United States until the middle of the nineteenth century, when states enacted married women's property acts. These acts conferred legal status upon wives and permitted them to own and transfer property in their own right, to sue and be sued, and to enter into contracts. Although these acts were significant advances, they dealt only with property a woman inherited. The husband, by placing title in his name, could control most of the assets acquired during marriage, thus forcing the wife to rely on his bounty.

Divorce law has also changed over time. In colonial America, divorce was extremely rare. This was partly because obtaining a divorce decree required legislative action, a process that was time-consuming and costly. Massachusetts in 1780 was the first state to allow judicial divorce. By 1900, every state except South Carolina provided for judicial divorce.

Even with availability, divorce remained a highly conflicted area of law. The Catholic Church labeled divorce a sin, and Protestant denominations saw it as a mark of moral degeneration. The adversarial process presented another roadblock to divorce. In the nineteenth century, consensual divorce was not known. For a couple to obtain a divorce, one party to the marriage had to prove that the other had committed a wrong of such weight that the marriage must be ended. The need to find fault was a legacy of family law that was not changed until the 1970s.

Finally, the issue of divorce raised the topic of child custody. Traditionally, fathers retained custody of their children. This tradition weakened in the nineteenth century, as judges fashioned two doctrines governing child custody. The "best-interests-of-the-child" doctrine balanced a new right of the mother to custody of the child against the assessment of the needs of the child. The "tender years" doctrine arose after the Civil War, giving mothers a presumptive right to their young children.

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Law Library - American Law and Legal InformationFree Legal Encyclopedia: Ex proprio motu (ex mero motu) to FileFamily Law - Historical Background, Divorce, Child Custody, Child Support, Other Areas, Court Procedures, Cross-references - Conclusion