About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

11 L. & Critique 1 (2000)

handle is hein.journals/lwcrtq11 and id is 1 raw text is: SANDRA BERNS FOLKTALES OF LEGALITY: FAMILY LAW IN THE PROCEDURAL REPUBLIC The Narrative Structure of Family Law ABSTRACT. This article explores the narrative structure of family law where divorce is available on ground of irretrievable breakdown following separation for one year. It argues that contemporary no-fault regimes exemplify law's procedural republic, a space with its own legal, ethical and political requirements which has little if any connection to the life- worlds of the parties. Through an analysis of intractable parenting disputes it argues that the interaction of no-fault divorce, the requirement to have regard to the best interests of the child and the principle that children have a right to contact with both parents has led to the creation of particular narrative forms. These narrative forms are characterised by their absolutism and map the unresolved grievances surrounding marital breakdown onto parent- ing disputes where the statutory requirements map them onto particular narratives and counter-narratives. In this process, the narratives of expert witnesses play an increasingly prominent role, as do the naive narratives put forward by litigants in person. The article argues that these narratives are, in important ways, fictions and that they are compelled by the procedural requirements of no-fault divorce. It argues further that these fictions are a consequence of the empty narrative space at the heart of family law. KEY WORDS: family law, fathers' rights movement, intractable parenting disputes, narrative, no-fault divorce, procedural republic Family law is rich in narrative threads. Some narratives, those in cases that are reported, are publicly known. Others are shadowy, appearing in divorce statistics or in research on the impact of family law. Still others are creatures of the media, as stories of gender wars spill across talk- back radio and the tabloid press. I want to examine the role of law in constructing these narratives and shaping their content. While my focus will primarily be upon legal institutions, my argument is that the narratives woven through these institutions are part of a wider story, shaping that story and being shaped by it. This story is about family and its meaning, about gender and gender roles, particularly as they are acted out within family life, and about the uneven process of change. Inevitably, it is about those who are threatened by change as well as about those who welcome it and about the way family law has become a site of resistance and defiance. I see the law and the institutions that enforce it as a procedural republic. That phrase captures some of the ways the formal requirements of legal rl Law and Critique 11: 1-24, 2000. © 2000 Kluwer Academic Publishers. Printed in the Netherlands.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most