Family law is a subject that makes the press regularly these days - it may be gay marriage, domestic violence, or even tax policy. Here, I will argue that perhaps the 'law' does not belong in family situations at all.
I'll illustrate this position by going a bit to the extreme - the answer, which I don't have - is somewhere in the middle. The only thing I will claim is that the current system is broken and to have a sense of the direction in which we should head. Even that direction is subject to debate - something I would consider a success I was to spark such here.
The law as it applies to families is broken. Law makes more problems than it solves in this arena. One could make the case that this is intentional. I will not do that here, but will note that the same question could also be asked in felony arenas as well. Certainly though there have been cases where misapplied family law has actually sparked felonies. These are tragedies to prevent, not merely falling back on a procedure by which the legal system can claim to avoid responsibility.
I believe that the debate over gay marriange and/or civil unions shows us the way to the solution. Marriage is not a matter for the State and the Law to regulate - it is a matter of religious preference and Churches should have the 'authority' over this societal institution.
Religion is a matter of choice - that choice might be a very traditional Catholic, Jewish, or Native American institution. The church choice though could also be something innovative - fo example, a gay embracing offshoot of an established religion, or even something born anew - say the 'Church of Spouse Swappers' - if that was what 'you' wanted.
There are some issues which should be guaranteed by the State - dissolution from a documented abusive relationship would be one, support for a non-working spouse should be another. The rights of 'civil unions' as negotiated by gay activists are probably pretty close to what heterosexual couples deserve as well. No more, no less.
The issue of children in marriage is another area of State involvement - perhaps no more so neglected than in the area of tax policy, even in homosexual discussions. It is my opinion that there are some tax benefits accruing to couples which are, in part, justified on the assumption that Children are present. I would argue that we should be taxing marrieds, without children, at a higher rate and married, with children, at a lower rate. I'm also dubious about assigning retirement benefits to a non-working spouse when there are no children present in the relationship at that particular time. This, if you will, is a functionally 'progressive' tax position.
The resolution of problem marriages should then fall to the 'authority' of each church - forget restraining orders and the like, but do give the Churches some powers in this area - especially in the area of creating a record of evidence documenting a deteriorating relationship.
I'd also go so far as to give the Churches authority to be insurance providers - divorce insurance would be one product, but I see no reason why Churches couldn't be providers of just about any form of the product. The resulting rates,and actuarial tables, cross tabulated by religion, would be a piece of societally relevant 'economic' information.
Lastly, one potential problem - that of a couple who choose to marry but are of different 'traditional' faiths. That too is a matter for the law, allowing those individuals choices in how to handle the situation - say allowing one spouse to accept the marriage standards of another religion without joining it, per se.
I think the best answer to that potential problem is the idea of pre-nuptial agreements. Church marriages could be considered a standard 'pre-nuptial' aggreement concerning the marriage. Individuals would have the opportunity of drafting their own agreements, including modifications of Church practices, if acceptable to that Church.
