(Report by Regula Kägi-Diener) 
The family workshop at the 10th anniversary congress of EWLA dealt with the influence of globalisation on family law. The workshop took place on June 4th 2010 and was chaired by Regula Kägi-Diener, Prof. Dr. attorney-at-law, St. Gallen in Switzerland.
Speakers in the workshop were Susanne Köhler, attorney-at-law from Dresden, Germany and Maria del Rosario Garcia Mariscal, attorney-at-law in Madrid, Spain.
In her introduction, Regula Kägi-Diener pointed out the significant influence the position and role of women inside the family has on their legal and social situation. All countries regulate the family to varying degrees of strictness, from countries that proscribe the roles of wife and husband to no regulation at all. But often, the family law doesn’t take into 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 in this way a great impact on families. In Switzerland nearly 50 percent of all new marriages are bi-national, of the existing marriages, one third are bi-national. This is not only a great challenge for the people involved, but also for the legal community. Specifically, in all countries marriages are highly regulated and in many countries the basic functions of ‘wife’ and ‘husband’ are laid down in law, thus the roles of mother and father are gen-dered roles depending on the responsibilities 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.
Poverty after divorce
Susanne Köhler from Dresden/Germany opened 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 are often faced with serious difficulties in the labour market, especially as child care outside the family is not really adapted to the conditions working women are confronted with. There is a serious danger of poverty for both the women and their children. The working group discussed the issue of what legal rules should take into account: an “old fashioned” gender contract reducing the wife to her role as mother and housewife or if they should concentrate on furthering a modern conception with the same roles for the two parents. The discussion showed two perspectives the law has to take care of: a short term per-spective regarding the given situation of women, helping them to find their way to an independent life after divorce, which means also basing the rules on the distinct roles of wife and husband, mother and father, but also a long term perspective with a guiding principle of the equal positions 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 answering the concerns of the situation of women.
Positive experiences with joint custody
Maria del Rosario Garcia Mariscal, attorney-at-law in Madrid, specialises 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 policy 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 highlighted Articles 5 and 16 CEDAW where rights and responsibilities of the parents are enumerated, but the interests of the children are 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 their 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 live and how their situation should be arranged not only at the time of the divorce, but periodically, after they have made the experience of joint custody. It was pointed out that there is a lack of children’s advocates.
There was also a discussion about a study of Carol Smart showing that the concerns of the mother are mostly interpreted as hindering the father. The study also showed that fathers get nearly everything they ask for: more or less participation in custody. In general, the public opinion is in favour of involving fathers more in child care, as it is thought to always be 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 “bad mothers”, while fathers defending their interests in the child are considered “good fathers” 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.