10th EWLA-Congress, Brussels
Family workshop: Influence of globalisation on family law, June 4th 2010
Chair: Regula Kägi-Diener, Prof. Dr. attorney-at-law, St. Gallen/Switzerland
Speakers: Susanne Köhler, attorney-at-law, Dresden/Germany
Maria del Rosario Garc?a Mariscal, attorney-at-law, Madrid/Spain
In her introduction, Regula Kägi-Diener pointed out the high influence the position of women in the family has onto their legal and social situation. All countries regulate the family more or less strictly, positions and roles of wife and husband are legally fixed. But often, the family law doesn’t take in account the needs of women, their equal rights and their claim for participation in the labour market, the public and political life. Globalisation causes migration and has by this way a great impact on families. In Switzerland nearly 50 percent of all new marriages are binational, of the existing marriages, one third is binational. This is not only a great challenge for the involved people, but also for the legal community. Specially, as in all countries marriages are highly regulated and the ideas about the positions of wife and husband are legally fixed, the role of mother and father are gendred roles depending on the responsabilities of both parents.
As the invited first speaker Afad Mourad-Bühler Lebanon/Germany had an accident and could not speak about the situation of Arabic women in the family, Susanne Köhler from Dresden/Germany opend with her speech about “New alimony rules in Germany – In-creasing self-reliance at women’s expense”. She showed that the new alimony rules make a clear break after the divorce. This means that the gender contract between wife and husband which designs their role in the family is broken by divorce. Women not seldom are faced with serious difficulties on the labour market, especially as family-extern child care is not really adapted to the conditions working women are confronted with. There is a serious danger for poverty as well for the children as for the women. The working group discussed the question if legal rules should take into account an “old fashioned” gender contract reducing the wife to her role as mother and housewife or if they shouldn’t better further a modern conception with same roles of the two parents. The discussion showed two perspectives the law has to take care of: a short time perspective regarding the given situation of women helping them to find her way to an independent life after divorce, which means also basing on the distinct roles of wife and husband, mother and father, but also a long-time perspective with a leading function towards equal position of wife and husband, mother and father. It turned out that the public responsibility for child care is crucial for equal rights and roles and for a satifying situation of women.
Maria del Rosario Garcia Mariscal, attorney-at-law in Madrid, specialised in national and international family law, spoke about positive experiences with joint custody in the United States, where she had worked, in her speech “Joint custody in Spain with focus onto the EU”. She showed an upcoming favour for joint custody in spain which she thought is in favour as well of the children as the parents. In the discussion, Regula Kägi-Diener remembered Art. 5 und 16 CEDAW where rights and responsibilities of the parents are stated, but the interests of the children is paramount (see as well Art. 18 of the UN-Convention on the Right of the Child). Joint custody should not convert into a control instrument over women and hamper her often difficult situation. So the working group was quite sceptical concerning joint custody. It stipulated that good solutions have to be designed with care. Susanne Köhler said she has clients where children have to go every other week hundreds of kilometres to their other parent, having two different schools and different friends at different places. The question was raised if the children shouldn’t be asked where they wanted to leave and how her situation should be arranged not only at the moment of the divorce, but periodically after they have made the experience of joint custody. There was asserted a lack of children’s advocate. There was also a discussion about a study of Carol Smart showing that the concerns of the mother mostly are inter-preted as hindering the father. The study also showed that fathers nearly get everything they ask for: more or less participation at custody. In general, the public opinion is in favour of involving fathers more in child care thinking it is always in the interest of the child. Violence in the family and against the children is underestimated. And women who defend the interests of the child against the fathers’ interests are considered as “bad mothers”, while fathers defending their interests in the child are considered as “good fa-thers” without looking at the real interests of the child.
The workshop designed a
resolution which was later on accepted by the General Assembly of EWLA.