Taking Responsibility Seriously: The Best Interests of the Child and Spousal Laws


This article calls for a rethinking of the modern boundaries between the regulation of spousal relations and the regulation of parenthood, including joint parenthood. My main argument is that important legal rules that are currently at the core of spousal law possess a dramatic influence on children’s lives. Thus, I will critique the current legal regulation that limits the influence of the best interests of the child principle to the regime of law that is currently classified as parent law but almost completely ignores its application in regimes currently classified as spousal law.

Apart from the theoretical discussion concerning the ideal law, we shall also discuss the current positive law (state laws and international laws, especially the Convention on the Rights of the Child). In this context we will criticize legal arrangements that limit the influence of the best interest of the child principle to the traditional territory of parenthood law. Nonetheless, in the spirit of Dworkin’s aspiration to present the existing law in its best light, I will also try to suggest interpretations of the existing law that allow us to overcome the current dichotomy between spousal law and parenthood law. In this context, a unique attention dedicates to the phrase actions concerning children, which define in which law's area the best interest of the child should be a primary consideration. We oppose the current rigid dichotomy between children – parent's law which considered to be actions concerning children in which the best interest of the child is the primary, if not the only consideration, to spousal law which is not considered actions concerning children and therefore the interest of the child, is almost neglected. We suggest replacing this rigid distinction with flexible formulation, which tries to identify the best interest of the child in different aspect of life and to balance this interest with the interests of other parties of the family.


Family Law

Date of this Version

February 2007