How Far Does Family Law Allow Individuals to Engage in Private Ordering - Essay Example

However, this list is not exhaustive and may vary from one jurisdiction to another since family law covers a wide range of social and economic cases in existing and broken households2. The main contentious issue in most domestic cases heard in domestic courts is often of financial nature since, as families and marriages break, there is always the need to settle financial arrangements made while the family was still intact3. In fact, until recently in many countries, there was little, if any enforcement of the private arrangements and rules that surrounded and sought to change the personal or family status of people4.

Nonetheless, there existed some kind of private ordering in which people could decide whether to marry or not and whom to marry. What is more, once an individual got married, he or she had to adhere to the enforceable rules of marriage and exit routes such as annulment, separation or divorce. Importantly, there were rules to guide couples in meeting their financial obligations on annulment or divorce5. It is also worth noting that even in historical times, the state had the power and mandate to set and enforce family laws6.

Thus, by these laws, the state had the power to limit an individuals’ free will and powers to distribute their property upon divorce or a spouse’s death. For instance, in most countries, family law states a spouse’s statutory share of family property upon marriage divorce or annulment7. Similar to the case of marriage, once an individual had a child, the state would have a say in the child’s rights as far as the financial obligations of the parents were concerned. That is, the state set the terms and determined the limited circumstances under which one’s parental rights to a child could be surrendered.

However, recent times have reported quite drastic changes with different countries permitting various types of private ordering in different family law situations and cases8. Examples of the areas in which private ordering is allowed in many a country in modern times include marital agreements, separation agreements, open adoption agreements, co-parenting agreements, premarital agreements, agreements9. In other words, currently, a lot of agreements are entered to help arbitrate in disputes if the above events occur.