Family Values and Family Justice

Michael Freeman

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351937122
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This volume collects together Michael Freeman's work on the family and society, and the part law plays in defining, structuring and controlling it. He questions the role of family law and its interface with family values, as well as the rights and best interests of children. Responsible parenthood is examined as well as the relationship between family law and medical law, examining surrogacy and saviour siblings. On adult relations the volume centres on domestic violence, same sex marriage, and alternative dispute resolution. Finally he examines the relationship between law and religion, focusing on Jewish divorce and the role of the state. The book is essential reading for scholars and students of family law, as well as those interested in gender and patriarchy, law and feminism, rights, and dispute resolution.

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Family Values and Family Justice

Introduction: ‘Family Law’ in 1900

Family law has come a long way in the twentieth century. When the century opened there was divorce for adultery only—aggravated adultery where wives were the petitioners.¹ A wife who committed adultery forfeited her right to maintenance and to property, even property she had brought into the marriage. Domestic violence had been discovered² and largely forgotten: it was assumed the separation order invented in 1878 had solved the problem.³ A recent reform was the introduction of separation of property in 1882,⁴ fought for by middle-class women⁵ and of no relevance to most. Married women still lacked full contractual capacity, a disability that was to survive for more than a third of this century.⁶ Not surprisingly the ability of a married woman to pledge her husband’s credit for necessary goods and services assumed an importance that seems barely credible today⁷

The law of marriage was firmly in place: reforms in 1753⁸ and 1836⁹ had opened the institution to public scrutiny and provided for a centralized system of state regulation.¹⁰ Lord Penzance’s definition¹¹ of ‘Christian’ marriage as a ‘voluntary union for life of one man and one woman to the exclusion of all others’ was unchallenged and, it seemed, unassailable. Polygamous marriage was not only denied matrimonial remedies and relief but was judged not to be marriage at all.¹² Of transsexualism¹³ we knew nothing: the gay¹⁴ were more likely to find their way into Reading gaol than its register office¹⁵ Quasi-marital relationships were denied legal status: a case¹⁶ in the early years of this century stigmatized the contract involved as akin to one for prostitution.

Beyond the law of wardship¹⁷—and this then existed more to protect property than the welfare of children¹⁸—there was little child law. The child’s welfare only became a relevant consideration in custody disputes in 1886: it was not until 1925 that the child’s welfare became the ‘first and paramount consideration’, and this only because of feminist pressure for mothers to have equality with fathers.¹⁹ There was a rudimentary law of child protection in existence²⁰—it had taken three generations since a similar law to protect domestic animals²¹—but no understanding of child abuse.²² As for sexual abuse, incest was not even a crime²³—for this we had to wait until 1908.²⁴ There was no law of adoption,²⁵ no child welfare system,²⁶ no legitimation by subsequent marriage.²⁷ The law placed full responsibility on the mother rather than the father for bringing about the undesirable situation of illegitimacy. Laws relating to illegitimacy were emblematic of the negative and punitive approach to family regulation. The law showed no compassion towards the child, who could not even inherit from a mother who died intestate until 1926.²⁸

Family Law: An Academic Discipline

As the century opened there was no academic discipline of family law. For this we had to wait until after the Second World War. The London School of Economics was the first institution to teach family law—the law of domestic relations as they called it. The initiative came from the distinguished comparativist, Otto Kahn-Freund, whose tradition was very different from that just described.²⁹ UCL did not teach family law until the 1950s: it too called it ‘the law of domestic relations’.³⁰ The subject lacked an academic text until 1957.³¹

Family Law: A Discrete Entity

As an academic discipline, family law developed much as other law subjects. The early textbooks, particularly Bromley, were firmly rooted within a positivistic and legalistic framework. Family ‘law’ was a discrete entity, not part of a social continuum.³² Viewing the discipline in this way had a number of consequences.

The law was seen apart from the values it embodied and helped to structure and restructure—and it is by no means a one-way process. Thus, to take an example, the relationship between law and patriarchy,³³ so essential to an understanding of family law, was not understood. Consider the resurrection of the ‘one-third rule’ in Wachtel v. Wachtel:³⁴ Lord Denning MR justified this on the ground that on divorce the ex-husband would have greater expenditure than his former wife. He would ‘have to go out to work all day and must get some woman to look after the house’, whereas the ex-wife ‘will not… have so much expense… she will do most of the housework herself’.³⁵ Compare his reasoning in Button v. Button³⁶with that in Cooke v. Head.³⁷Ignore the values involved and the cases may readily be distinguished. Ms Cooke was what we would now call a cohabitant. But look at the values. In Button the argument was that ‘a wife does not get a share in the house simply because she cleans the walls or works in the garden or helps her husband with the painting and decorating’.³⁸ In Cooke v. Head, by contrast, where the female cohabitant did ‘quite an unusual amount of work for a woman’,³⁹ using a sledgehammer to demolish old buildings, working a cement mixer, and doing other ‘male’ activities (in effect demonstrating she was a craftsman), her work was richly rewarded. The message is clear: what women normally do, or are expected to do, has no economic value, but ‘real’ work must be compensated.

Family Law’s Image of the Family

A second consequence of the way family law as a discipline developed was that what emerged as family law, in the eyes of most family lawyers, academics, and practitioners, was a narrow and distorted image both of the subject of the discipline (the family) and of the processes which regulate the family.

First, let me explain this in relation to ‘the family’. Family law is about husbands and wives (or those who live in relationships ‘like’ husbands and wives) and the children they produce. Of course, in part this is true, but I would suggest only in part. Why is it that we take it for granted that the family revolves around a sexual tie? Why is the ‘sexual family’ invested by our culture and society with exclusive legitimacy? Why is it, and here I quote Martha Fineman,⁴⁰ the ‘foundational institution’? The sexual tie may not be a marital bond, it may even exist between members of the same sex, but it remains at the core of our understanding of intimacy and family connection.

In these terms single mothers are deviant: we never talk of married mothers because mothers are assumed to be married or in equivalent relationships.

We define children, even today, in terms of the relationship between their parents. Although the terms ‘legitimate’ and ‘illegitimate’ no longer exist in English law⁴¹ and the legislation eschews terms like ‘marital’ and ‘non-marital’ (contrary to Law Commission advice⁴² which favoured such epithets), the relationship between the child and his/her father still depends on the father’s relationship with the mother.⁴³

Step-children are only children of the family when ‘treated’⁴⁴ as such by both their parent and the person to whom their parent is now married, and anything less than marriage will not do. This, it may be thought, is odd: are the ‘couple’ and their children not a family?

Relationships between parents and adult children, even adult dependent children, for example the many ‘twenty somethings’ who, in the absence of employment or marriage, have returned home fit ill within conventional concepts of the family. This is well illustrated by the discomfort the law feels when confronted by a family provisio...