April 13-15, 1996
Prepared by Sonia Jaffe Robbins
- Nadezhda Kusnetsova (Russia)
- discussed the reform of the family law, enacted in December 1992 and effective as of March 1, 1993. This reform revolutionized family law: the family is no longer seen as producing children for the state. The reform eliminated the statement that a woman is supposed to be a mother, a father is supposed to support the family, and the family is the basic unit of society.
However, there is not enough court protection for the family. There is now work on a draft for a law on violence in the home and to bring the new family law into accord with CEDAW (the Convention on the Elimination of All Discrimination Against Women), the convention on rights of children, and other international documents. There is need for protection of teenagers and others unable to protect themselves. For the first time, there are regulations concerning property in family during divorce, to prevent social conflicts or people left without home orfood. But although husband and wife have equal rights to property, it is possible for them to write a contract before mariage that violates equality.
In divorce, the court has to consider the best interest of the child or children, and it assumes no discrimination, but considers who is the responsible member of the family. In practice, fewer men than women are considered to be responsible members of the family. It is very difficult to get divorce payments, because income is often hidden. If the divorced man is a citizen of a new country that used to be part of the Soviet Union, there is no agreement with those other countries to collect such payments.
Family law concerns only persons who are married; there is no protection for those who simply live together. There is no provision for any gaps between Russian family law and international family law. In the draft of the new criminal law and in the new family law, there is no longer a prohibition against polygamy. The new family law lowered the minimum age for marriage to 16 (from 18), but allowed marriage at lower ages for "special circumstances." The new family law also eliminated social welfare benefits for support of children, disabled people, elderly parents.
- Malgorzata Fuszara (Poland)
- spoke particularly about divorce and her research. Her first study in this area was of family court in 1986, and in her second study she just finished interviews with divorced people in Warsaw and in a rural district. The law has not changed much since 1964. There is both fault and no-fault, and the grounds for divorce are "irretrievable disintegration of matrimonial life," which leaves much room for the discretion of the court (there is no administrative divorce). There is obligatory conciliation, but this is not mediation, but a very short, formal single session; the goal of the court is to keep family together.
Divorce is very infrequent, fewer than 1 per 1000. More women than men ask for divorce. Women's grounds for divorce are mainly for violence or drinking; women want safety. Men ask for divorce when they have another family or want another family, and they accuse women of being bad housekeepers or not cooking the meals.. In the majority of cases, children stay with the mother. Women don't defend themselves by admitting that they didn't cook or clean house. There is no provision for child-support payments to keep up with inflation. The traditional ideas of marriage relations are still the same for women judges as well as men judges. In Poland, women's economic situation after divorce is often better that it was before divorce.
- Elizabeth Schneider (U.S.A.)
- focused on the theme that legislation and law reform in family law have not been the primary effort in the U.S. because of the enormous gap between the theory of reform and actual practice. In the U.S., changes in the law do not necessarily empower women. For example, no-fault divorce in US took away some leverage from women in the economic situation. There is a range of other issues: relationship of work and family, and replication of discrimination in both. Empirical work on the impact of reform is absolutely essential.
- Katharine Silbaugh (U.S.A.)
- focused on the question of how the economics of the intact family became private. What happens to income before marriage breaks down? Property is only an issue for a tiny proportion of people. It's important to value women's domestic labor, not abstractly as in the role of mother or wife, but valued economically. UN asked last summer that countries start including unpaid domestic labor in national GDP; this is estimated to be $11 trillion worldwide.
- Martha Fineman (U.S.A.)
- called into question the concept of equality as the basis for anything in family law; dependency is the crucial aspect. In U.S., we privatize dependency, children, elderly, disabled. How can we think about families as institutions that handle dependency. but not alone; how can we think about collective responsibility of the entire society, how to articulate this theme, and how to avoid collective control?
- Urszula Nowakowska (Poland)
- hoped that the joining of academics and practitioners at this conference would be a unique opportunity for work together in the future. She described how the Women's Rights Center monitors the practice of law and provides legal and psychological assistance for women going to court.
Comments and Questions
- Anastasia Posadskaya (Russia)
- pointed out how: changes in Russia in the economy are reinforced in the family code; women first lost power economically, now in the family. Parental leave is in the new language of reform law, but in practice it is still only maternity leave and we saw that it would get women out of economy, without now being able to get their job back.
- Martina Vanderberg (U.S.A.)
- noted that after living in Russia for 3 years, she sees that that is where they want us, in the home. It's easier to get a law passed if it protects children, but not if it protects women. Some statistics: 15,000 women killed by their husbands each year; there are no domestic violence shelters in the entire country and only 14 crisis centers, with no governmental support. Police won't take domestic violence calls in many places.
- Daniela Lupas (Romania)
- Whatever said about Poland applies equally to Romania. She feels defensive in defending her focus on legislation, but there is pressure to have everything in the written statute because without law, we have no support. On dependency, there is something in Romanian law that children are obliged to support parents in return for parents' care of children. (Isabel Marcus asked if there is an institutional enforcement of this obligation.)
- Martha Fineman
- doesn't like this idea, because it reprivatizes dependency. It's better to improve social security to remove elderly from poverty, with no control over how elderly spend their social security.
- Malgorzata Fuszara
- There is a general obligation in Poland, but not based on reciprocity.
- Nadezhda Kusnetsova
- There used to be such an obligation, and talk about keeping it.
- Joan Williams (U.S.A.)
- noted that in her property law course, she always raises this question of conceptualizing entitlements for the caretaker who is supporting the ideal worker. The most negative reaction came from students at Harvard, who she thinks identified with "ideal worker," who mentioned that this would prompt such bizarre claims as "parents would have claim against children."
- Elizabeth Schneider
- Greater responsibility on childcare has focused more attention on men, without necessarily improving the situation greatly. But it has had a consciousness raising effect. Such an obligation in the U.S. would completely dismantle Social Security. and other aspects of support for elderly. Social message about caretaking is important, but how it actually works could be counterproductive.
- Isabel Marcus
- requires students to attend hearings on child support, to see the kinds of reasons for not paying child support or asking for change in support payments.
- Nanette Funk (U.S.A.)
- noted the negative impact of class divisions on obligating children to care for elderly parents.
- Kristina Morvai (Hungary)
- commented on how judges make law, how they construct or mirror gender roles, even though in civil law system, we deny that this happens.
- Isabel Marcus
- raised questions about the gap between theory and practice in civil law countries How much do judges make law? What does this say about civil law system? What does this have to say about training?
- Daniela Lupas
- defended again the reason she looks to legislation. Interpretation is limited and a decision can be illegal.
- Katharine Silbaugh
- noted judicial discretion in the U.S., judges are a product of their culture. When a culture undervalues women and children, as in the U.S., then family law undervalues women and children.
- Isabel Marcus
- noted that judicial education is something NEWW wants to pursue, as well as gender research.
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