Marriage and Cohabitation

Regulating Intimacy, Affection and Care

Alison Diduck

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754626800
• eBook ISBN: 9781351919661
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

The law has long been interested in marriage and conjugal cohabitation and in the range of public and private obligations that accrue from intimate living. This collection of classic articles explores that legal interest, while at the same time locating marriage and cohabitation within a range of intimate affiliations. It offers the perspectives of a number of international scholars on questions of how, if at all, our different ways of intimacy ought to be recognised and regulated by law.

Part I
Changing Intimacies – The Theory

[1]

On the Way to a Post-Familial Family

From a Community of Need to Elective Affinities

Beck-Gemsheim Elisabeth

Prologue: Stages in a Controversial Debate

IN WESTERN INDUSTRIAL societies of the 1950s and 1960s, paeans were being sung to the family. In West Germany it was enshrined in the Constitution and placed under special state protection; it was the recognized model for everyday life, and the dominant sociological theory regarded it as essential to a functioning state and society. But then came the student and women’s movements of the late 1960s and early 1970s, withtheir show of resistance to the traditional structures. The family was exposedas ideology and prison, as site of everyday violence and repression. But onthe opposite side, others appeared in the arena ‘in defence of the bourgeois family’ (Berger and Berger, 1984) or rediscovered it as a ‘haven in aheartless world’ (Lasch, 1977). A ‘war over the family’ broke out (Berger and Berger, 1983). Suddenly it was no longer even clear who or what constituted the family. Which types of relationship should be described as a family and which should not? Which are normal, which deviant? Which ought to be encouraged by the state? Which should receive financialsupport?

Meanwhile, in the late 1990s, the discussion has become still more confused. Many theorists perceive massive changes, perhaps even the end of the traditional family; others criticize what they call the constant talk of crisis and argue that the future belongs with the family; while a third group, lying somewhere in between, prefer to speak of tendencies towards pluralism. What makes the debate particularly stimulating is the fact that all sides appeal to empirical data, and especially to demographic statistics.

In this article I shall first look at two positions which emphasize continuity and stability of the family. In considering these, I will show that the black-and-white alternative ‘end of the family’ or ‘family as the future’ is not appropriate. The focus should instead be on the many grey areas or, better, the many different shades in the niches inside and outside the traditional family network. The main argument here will be that these forms signal more than just pluralism and contiguity, more than just a colourful motley thrown together at random. For a basic historical trend can be discerned in all this variety, a trend towards individualization that also increasingly characterizes relations among members of the same family. A shorthand way of saying this is that a community of need is becoming an elective relationship. The family is not breaking up as a result; it is acquiring a new historical form. Paradoxically, we could say that the contours of a ‘post-familial family’ are taking shape (Rosenmayr, 1992).¹

The Construction of Normalcy

On the Handling of Figures

Not long ago a respected daily paper carried a feature article under the programmatic headline ‘The Family Is Not a Discontinued Model’ (Bausch- mid, 1994). The first sentence already makes the point: ‘Sometimes it is the normal situation which amazes the observer: 85 per cent of children and young people under eighteen in the Federal Republic grow up in complete families with natural parents who are still in their first marriage.’

The statistic is indeed surprising, and it is therefore worthy of closer examination. Where does it come from? What is the basis of calculation? Three points immediately strike one. First, the cited figure takes children and young people in ‘complete’ families as its reference. The picture is therefore distorted in advance, because it excludes those who decide against a family. Two groups that have clearly grown in recent years are missing — men and women who do not marry in the first place, and those who remain childless.² Second, the author writes that the figure comes from the year 1991, but in reality it covers a period stretching from 1970 to 1987.³ And already within that period — even more in the years since then — a clear shift has taken place towards non-traditional forms of living. Since 1970, for example, the proportion of children born out of wedlock has been constantly rising;⁴ and those born within it face an ever greater risk that their parents’ marriage will break up (Nauck, 1991: 427). Third, population figures that give a picture of family life say nothing about whether people live willingly or unwillingly in such relationships. Nor do they say anything about the dynamic concealed behind these statistics. It is therefore necessary to look beyond the objective data and to investigate their subjective meaning. Then it becomes relevant to consider what sociological studies of the family show:⁵ namely, that in many relationships there are partly open, partly submerged conflicts over the domestic division of labour and gender life-projects, and that although traditional arrangements still largely prevail, there is increasing dissatisfaction on the part of women. In short, a considerable potential for conflict is visible beneath the surface normality.

What we find, then, is a screening-out of groups which do not fit the image of normality (single persons, the childless); a disregard for the declining trend in the traditionally normal family (more children born outside marriage, more divorces); and also a disregard for the conflict potential within so-called normal families. One thing is obviously common to these three elements: they all lead to a picture that emphasizes the aspect of continuity and systematically underestimates the aspect of change. It is not so much normality as constructions of normality that are involved.

Redefinitions and Immunization

In an essay entitled ‘Family in Dissolution’, the sociologist Laszlo Vascovics trenchantly criticizes those who point to radical changes in the family. He sees here just the long-familiar talk of crises: ‘Over the last two centuries, crisis and breakdown of the family have again and again been “detected” or predicted’ (Vascovics, 1991: 186). And he is quite clear about his own conclusions:

The family as nuclear or conjugal family has kept its dominance up to the present day… The ‘normal chaos of love’, as it has been called, continues to display quite clear and dominant patterns of the partnerships which … in most cases lead to a quite normal family. (Vascovics, 1991: 197)

In order to assess this view of things, it is important to know how Vascovics defines the ‘normal family’. In fact, practically everything goes into his definition. With or without a marriage certificate, temporarily or for life, once or a number of times — everything is indiscriminately included in the nuclear family or its precursors. Even people living alone become ‘partnership-oriented’ within this framework, because in Vascovics’ view they do not in principle exclude a marital or non-marital partnership and even partly aspire towards one. Most non-marital partnerships are said to be ‘at least geared to a medium-term perspective’. And if such couples separate, it can still be assumed ‘that they will sooner or later enter into a non-marital long-term relationship with another partner’. It is true that there has been a decline in birth-rates, but this changes nothing with regard to the normal family. ‘Parenthood has not ceased to be an important aim for young women and men.’ Developments such as later parenthood show nothing new:

Why should there be a difference in how late and early parenthood, shorter and longer-lasting families, are regarded? It is in the nature of things that a family will be founded at one point in the life cycle and dissolved at another. (Vascovics, 1991: 188–94)

Within this conceptual schema, Vascovics is undoubtedly right that the normal family is alive and flourishing. But the series of redefinitions that allows him to argue this mostly discards what a short time ago constituted the essence of marriage and family: legal certification, binding force, permanence and so on. If, amid massive change, all this is simply disregarded, then obviously no change will be left. It is as in the race between the hare and the tortoise: the normal family is there already. Proof to the contrary is impossible, because everything that looks or could look otherwise is simply built into the original concept. This is what theory of science knows as immunization – explanations which cannot be refuted and so are not really meaningful.

The result is that the central questions are systematically left out. For example, it is well known from the data available that most men and women do indeed say that having children is one of their aims in life. The interesting question here is why do young people fail to achieve this aim more often than previous ones. What are the barriers, the resistances? Or do other goals in life nowadays have greater attraction? Furthermore, it is hardly surprising that most single people do not dismiss all thought of a partnership. But far more intriguing is the question of why they actually live alone. What are the resistances or the rival goals? Finally, not much can be said against the statement that every family starts at some point and comes to an end at another. It is as correct as it is trivial. What is not at all trivial is when the family is founded and especially why it is ended – through death or through divorce. How many go on to found another family? How many let it all drop? How many set up several families in succession?

If such questions are not asked, if instead all forms of private life (with or without children, with or without a certificate, with or without permanence) are bunched together under the heading of the ‘normal family’, then all contours go by the board. Change? The perspective does not allow for it. And so it nowhere comes into view. The conclusion is fixed in advance: ‘Nothing new under the sun.’

Family and Individualization: Stages in the Process of Historical Change

The emphasis on continuity of the family will now be contrasted to an approach that consciously places new elements at the centre of analysis. To draw out what is new, we shall take the discussion on individualization as our reference, focusing first on the historical changes that can be located in the lifespan of the individual. Individualization is understood as a historical process that increasingly questions and tends to break up people’s traditional rhythm of life – what sociologists call the normal biography. As a result, more people than ever before are being forced to piece together their own biographies and fit in the components they need as best they can. They find themselves bereft of unquestionable assumptions, beliefs or values and are nevertheless faced with the tangle of institutional controls and constraints which make up the fibre of modern life (welfare state, labour market, educational system, etc.) (Beck and Beck-Gernsheim, 1993). To put it bluntly, the normal life-history is giving way to the do-it-yourself life- history. What does this imply about the family? How is the relationship between family and individualization to be conceived? Above all, what is new in all this?

The Obligation of Solidarity

It is advisable to start by glancing back at the preindustrial family. As many studies from social history have shown, this was essentially a relationship centred upon work and economics. Men and women, old and young people each had their own place and tasks within it. But at the same time, their activities were closely coordinated with one another and subordinated to the common goal of preserving the farm or workshop. Members of the family were thus exposed to similar experiences and pressures (seasonal rhythms, harvest, bad weather, etc.), and bound together by common efforts. It was a tightly knit community, in which little room was left for personal inclinations, feelings and motives. What counted was not the individual person but common goals and purposes. In this respect the preindustrial family may be defined as a ‘community of need’ held together by an ‘obligation of solidarity’ (Borscheid, 1988).

Family, household and village community made productive assets out of the estate, ensured that the many efforts were not just a labour of Sisyphus, partly afforded the possibility of welfare and social prestige, and promised some security in the event of destitution, sickness and old age. Unless one was integrated into a family and a village community, one was virtually nothing, an impotent creature look...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Series Preface
• PART 1 Changing Intimacies – The Theory
• PART 2 Changing Intimacies – Empirical Research
• PART 3 Why Legal Regulation At All?
• PART 4 Law and Marriage
• PART 5 Law And Civil Registration
• PART 6 Law And Conjugal Cohabitation
• PART 7 Law And Non–Conjugal Relationships
• Name Index