Great Debates in Family Law

Jonathan Herring, Rebecca Probert, Stephen Gilmore

• Publisher: Red Globe Press
• Year: 2015
• Print ISBN: 9781137481566
• eBook ISBN: 9781137481573
• Edition: 2
• Topic: Law
• Subtopic: Family Law
• Index: Law

This textbook is an ambitious and engaging introduction to the more advanced writings on family law, primarily designed to allow students to 'get under the skin' of the topic and begin to build their critical thinking and analysis skills. Each chapter is structured around key questions and debates that provoke deeper thought and, ultimately, a clearer understanding. The aim of the book is therefore not to present a complete overview of theoretical issues in family law, but rather to illustrate the current debates which are currently going on among those working in shaping the area. The text features summaries of the views of notable experts on key topics and each chapter ends with a list of guided further reading.

1

THE NATURE OF FAMILIES AND FAMILY LAW

INTRODUCTION

At the heart of family law are some very basic questions: what is a family, and how should the rights and responsibilities of family members be regulated by the law? Indeed, one might take this latter question further and ask whether they should be regulated by law at all: one very important current debate, particularly in light of the restrictions on access to legal aid, is just how far families should be expected to resolve their disputes without recourse to law. Assuming that the law is to play some role – at least in establishing what individuals are entitled to, and what they are expected to do – a further question presents itself: what criteria should be used in deciding these points? Should the law make moral judgments about who is a good parent, or a good wife or husband, and use these judgments to determine individuals’ entitlements? And, if so, how do judges decide what makes a good parent or partner?

First, however, we should tackle the most basic question of all: what do we mean by the term ‘family’?

Debate 1

What is a family?

Families come in all kinds of shapes and sizes. There is little consistency about the way the term is used. Sometimes it is taken to refer to a ‘nuclear family’ (parents and their dependent children); sometimes it is taken to refer to kinship (a larger group of people related by blood or marriage, of the kind found in a family tree); or households (a group sharing accommodation). In some communities it is common to refer to a close family friend as an uncle or cousin, even though there is no blood tie. One of the difficulties in defining ‘family’ is the power of the definition and especially the stigma that follows from denying that a certain group of people is a family.¹ In part this explains the strong objections from the gay and lesbian community to the now repealed s. 28 of the Local Government Act 1988, which referred to gay and lesbian relationships as ‘pretended family relationship[s]’.²

How we describe and classify the family for the purposes of statistical analysis is a matter for debate in its own right. If, for example, we define the ‘traditional’ family as one consisting of a married couple with two or more children, then it is very easy to say that few families match this model. A study in 2011³ found that only 16 per cent of the population believed they fitted into such a traditional model, and that even in 1961 only 38 per cent of families matched the traditional model. In 2011 only 52 per cent of children lived with a married couple.⁴ Yet the narrowness of this definition makes it inevitable that only a small proportion of families will fall within its scope: does the fact that a married couple have only one child, or even no children, make them any less traditional?

If we focus on the more neutral concept of ‘household’, then we can see that in 2011 29 per cent of all households consisted of people living on their own; 28 per cent of couples with no children; 27 per cent of a couple with children; 10 per cent of a lone parent with children; 3 per cent of two or more unrelated adults; and 1 per cent of multi-family households. Looking at just families with children, we see that 65 per cent were a married couple family, 17 per cent were a cohabiting couple family, and 18 per cent were a lone-parent family.⁵ Given the regular headlines about the decline of marriage, it is striking that most couples with children are married.

At the same time, it is clear that there has been considerable change in family life over the past 40 years, with more individuals living alone (possibly with a partner elsewhere); an increasing proportion of births taking place outside marriage (largely but not exclusively to cohabiting couples); and higher rates of relationship breakdown. Attitudes have changed radically as well. As late as 1989, a sizeable majority – 70 per cent – of respondents to the British Social Attitudes Survey took the view that ‘people who want children ought to get married’.⁶ By contrast, in a recent survey 77 per cent of people believed that single parents can be a proper family and 59 per cent believed that same-sex couples can be a family. Only 36 per cent of those questioned believed that a couple with children had to be married to be a proper family.⁷ In the 2013 British Social Attitudes survey only 42 per cent of those questioned thought that parents should marry before having a child.⁸

The significance of the changes in family life is a matter of some debate. There are certainly many who are concerned about changes in family life. Eighty-three per cent of those questioned blamed ‘family breakdown’ as the source of the problems leading to the riots in London in the summer of 2011.⁹ Family breakdown can also cause enormous personal hardship.¹⁰ The Centre for the Modern Family found 43 per cent of people over 60 lived alone and 25 per cent of the over-60s lived alone with no family nearby.¹¹

Alison Diduck¹² notes the differences between ‘the families we live by and the families we live with’, suggesting that we hold on to an ideal of what family life is like (the traditional nuclear family) that is at odds with the realities of family life. She goes on to examine further our reasons for holding on to the ‘ideal’ of traditional family life:

When we mourn the loss of the ‘traditional family’, therefore, we may be grieving for the loss of more than the values we ascribe to it like loyalty, stability, cooperation, love and respect; we must also remain aware of its underlying values of patriarchy, heterosexism and race and class hierarchy.¹³

Others argue that the changes in family life should not produce concern. Katherine Rake, for example, suggests that:

Modern family life obviously has its challenges. But, the modern family is also testament to a rise in tolerance and choice which was not there for generations before. No longer do people have to live with abusive partners, be punished with social stigma if they are lone parents or have to hide their gay relationships. Family form has changed throughout history but what remains constant is that families are the most important social institution in UK society.¹⁴

Further, whatever claims may be made about the so-called ‘decline’ in family life, it is clear that for the vast majority of people, families, whatever their form, are important. In one survey 92 per cent of people felt very or fairly close to their families.¹⁵

All of these changes have thrown up into the air the question of what family is. Much of what may have been taken for granted about ‘normal family life’ has shifted. The question of what makes a family has therefore become a very difficult question.

THE LAW

‘Family’ is presently a term that is of limited legal significance. While much effort has been spent in attempting a legal definition of ‘marriage’, ‘parent’ and ‘parenthood’, relatively few cases have defined ‘a family’. Nonetheless, the concept of ‘family life’ is central to rights under the European Convention on Human Rights, leading to renewed debate on the meaning of family in recent years.

The meaning of family in domestic legislation

In Fitzpatrick v Sterling Housing Association Ltd,¹⁶ the House of Lords had to consider the meaning of ‘family’ for the purposes of the Rent Act 1977. The case involved a Mr Thompson and a Mr Fitzpatrick who had lived together in a flat for 18 years before the former’s death. The flat was in Mr Thompson’s name, but under the Rent Act 1977 Mr Fitzpatrick could succeed to the tenancy if he could show he was a member of Mr Thompson’s family. In short, the question was whether a gay couple could be a family for the purposes of the Rent Act 1977. By three to two the House of Lords held they could.¹⁷

For Lord Slynn, writing in the majority, the hallmarks of family life were ‘that there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, or commitment and support’.¹⁸ He added that it was crucial that the relationship was not ‘a transient superficial relationship.’¹⁹ Applying this to the facts of the case, their relationship was of long standing and Mr Fitzpatrick had cared for Mr Thompson for the last six years of his life. They could therefore be regarded as family.

Lord Clyde argued that a sexual element, or at least the potential for one, needed to be shown.²⁰ His concern was that a criterion was needed to distinguish between a family relationship and one based on friendship. This reflected the earlier decision of the House of Lords in Joram Developments Ltd v Sharratt,²¹ in which a 24-year-old man and a 75-year-old woman shared a flat, enjoying each other’s company and living communally, although there were no sexual relations. The House of Lords was willing to say they shared a household, but not that they were members of a family. Was that the right decision?

The approach of the minority in Fitzpatrick was interesting. They started with what they regarded as two paradigm family relations: those created by law – marriage or adoption – and those created by blood tie – parent or child. As Mr Fitzpatrick and Mr Thompson were not analogous to either of these they could not be regarded as family members. As we shall see, this more formalist approach to defining the family still has its advocates.

Following Fitzpatrick, the law uses a fairly broad understanding of family, one that is not restricted to blood relations or those who have formalized their relationship in law through, for example, civil partnership or marriage. The case might seem to suggest that it is intimacy and stability which are seen as the hallmarks of family life. However, it would be wrong to suggest that the courts look only at the quality of the actual relationship. Where a couple are in a formal legal relationship or blood tie (e.g. marriage, parenthood) that will usually be sufficient to render them members of the same family. It ...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• 1. The Nature of Families and Family Law
• 2. Parents
• 3. Children’s Rights
• 4. Disputes Over Children
• 5. Child Protection
• 6. Adoption and Special Guardianship
• 7. Marriage and Civil Partnerships
• 8. Cohabitation
• 9. Divorce
• 10. Domestic Violence
• 11. Division of Assets on Separation