Family Law Quarterly
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Volume 41, No. 3 (Fall 2007) — Table of Contents

"Why People Marry: The Many Faces of an Institution      
John Eekelaar

In a general climate of decline in marriage rates, there is much speculation about the benefits of being married. Policies are advocated to create incentives to marry and remain married. These discussions pay little attention to the different reasons people have for marrying. Modest research in England into this showed that marriage holds a variety of meanings for people and that people "use" marriage in different ways. This raises the question whether marital stability could be more closely associated with the reason for marrying than with the fact of marriage itself. The article sets out the findings of the research, and places them in the context of changes in the law in the United Kingdom relating to marriage and unmarried cohabitation, and the introduction of civil partnerships.

Principles of the Law of Relationships Among Adults      
Maxine Eichner

The author asks how states should craft laws governing adult intimate relationships. The author suggests that these relationships implicate a complex set of coexisting goods that include individual liberty, caretaking, human development, sex, economic equality, and civic fellowship. To protect these goods the author concludes that states need a family policy that offers a more nuanced set of principles that gives each "good" its due. She provides a framework for achieving this.

Marital Roles and Declining Marriage Rates       
Ira Mark Ellman

This essay is an updated, expanded, and revised version of the second half of Divorce Rates, Marriage Rates, and the Problematic Persistence of Traditional Marital Roles, published in FLQ in 2000. It draws on demographic studies and comparative research to examine the persistence of traditional marital roles and its possible relationship to declining marriage rates.

The Decline of Formal Marriage: Inevitable or Reversible?       
Marsha Garrison

All over the industrialized world, marriage is in decline. Cohabitation, which has waxed as marriage has waned, is a much less stable and more varied relational form than marriage. Because of its relative instability and variability, cohabitation presents public policy and fact-finding challenges that formal marriage does not. Formal marriage is also associated with a range of health, wealth, and happiness benefits to adult partners and their children. Because formal marriage and childbearing within such unions offer public advantages that informal unions do not, public policies designed to encourage individuals to delay childbearing until marriage are desirable. So are policies that encourage couples that have marital understandings to formalize their unions through ceremonial marriage. To effectively design such policies, however, we need to understand why formal marriage is in decline. This article critically examines current economic and cultural explanations for these phenomena and analyzes the public policy implications of these explanations. It concludes that well-designed policies that promote the socioeconomic conditions in which successful marriage flourishes, reduce economic disincentives to marry, and offer clear dividing lines between formal marriage and cohabitation are all supported by the evidence. These policies do not have the capacity to bring back the world in which marriage and marital childbearing were almost universal, but they may have the capacity to make a difference at the margins. They do not appear to hold any potential for causing harm and they may also promote other improvements in family relationships and functioning.

A Review of Cohabitation: The Financial Consequences of Relationship Breakdown, Law Com. No. 307 (HMSO 2007)       
R.J. Probert

This article examines the final report of the Law Commission for England and Wales on the legal principles that should be applied when a cohabiting relationship comes to an end. The recommendations would not confer on these relationships the same rights and privileges available to married couples or civil partners. The author examines the recommendations and concludes that while some cohabitants will be better off, others will receive less than they would have under standard trust laws.

A World without Marriage       
Elizabeth S. Scott

This essay asks whether legal marriage should be abolished and replaced with civil unions open to all individuals who want to register their commitments to an intimate partner. The author argues that abolishing marriage altogether is a bad idea, but as between opening legal marriage to all adult couples that seek to formalize their commitments and substituting civil unions for legal marriage, the choice turns out to be a difficult one. The author concludes that states can function as laboratories for legal innovation, and that over time it is likely to become clear whether civil unions should be adopted as the core family form of the twenty-first century.

Engines of Inequality: Class, Race, and Family Structure       
Amy L. Wax

This essay attempts to understand current trends and distributions of family structures today and the prevalence of traditional nuclear families as opposed to alternative forms of family. The author questions why we should care about the distribution of family structures and explores how current trends might contribute to racial and economic inequality in our society. She concludes by asking what, if anything, can and should be done about such inequalities.

2007 Schwab Essay Winners
(The Schwab Essay Contest for law students is sponsored by the ABA Section of Family Law.)

Smoke Screens: Why State Laws Making It a Crime to Smoke in Cars Containing Children Are a Bad Idea       
Lila E. Slovak

This essay examines the new breed of state smoking bans that would in this author's words criminalize parenting and undermine women's rights. She believes that although there are sound public health reasons to limit children's exposure to second-hand smoke (ETS) and to ban smoking in cars by parents with children, the hidden danger of these laws is that they will enable police and prosecutors to use abusive tactics against parents and provide fodder to courts that seek to prevent pregnant women's smoking.

My Two Dads: Challenging Gender Stereotypes in Applying California's Recent Supreme Court Cases to Gay Couples       
Jessica Hawkins

Part I of this essay provides an overview of the United Parentage Act (UPA) and its framework for determining parentage. It examines how California courts apply the UPA to cases involving assisted reproductive technologies and discusses courts' decisions in Elisa B., K.M., and Kristine H. and their significance; explores gender roles in the context of raising a family; and concludes with an argument for applying the reasoning of these cases to establish parenting in cases involving gay couples. decide what is best.

Interpretation of Islamic Marriage Contracts by American Courts  
Tracie Rogalin Siddiqui

This essay presents an overview of Islamic marriage and divorce law, including its treatment of the mahr. It discusses possible rationales for enforcement in the U.S. and concludes that a secular contract is the best enforcement mechanism. The author also discusses difficulties and potential solutions. She concludes that when enforcement of the mahr is necessary to protect the woman's financial future, the American legal system has the mechanisms to allow such enforcement under secular law, and judges should do so.

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Publication Date: January 2008