What is The Family of Law?

The Influence of the Nuclear Family

Alan Brown

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509945313
• eBook ISBN: 9781509919598
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

This book argues that the legal understanding of 'family' in the UK continues to be underpinned by the idealised image of the 'nuclear family', premised upon the traditional, gendered roles of 'father as breadwinner' and 'mother as homemaker'. This examination of the law's model of the 'family' has been prompted by the substantial reforms that have taken place in family law in recent decades, and the significant evolution in social attitudes and familial practices that has occurred in parallel. Throughout the book, the influence of the nuclear family is noted in several different contexts: various specific legal definitions of 'family', the legal regulation of adult, conjugal relationships, the attribution of legal parenthood and the construction of the role of the 'parent' within the law. Ultimately, this book argues that while these reforms have resulted in additional categories of relationship coming to be situated within the nuclear family model, there has not, as yet, been any fundamental alteration of the underpinning concept of the nuclear family itself. This book concludes by considering the possibilities offered beyond the 'nuclear family'; exploring the reconceptualising of the legal understanding of 'family' around alternative and potentially 'radical' models of 'family'.

PART I

The Family

1

What is the Law’s ‘Family’?

Diduck has observed that ‘“The Family” has almost iconic status in popular and “official” discourses, even though there is no official or universal definition of it. It means different things to different people, and meets different needs for different people.’¹ Indeed, social and cultural understandings of ‘family’ are shifting and twenty-first century UK society comprises a greater diversity of family structures and forms than at any time previously.² The sociologist Chambers has commented that, ‘What we define as “family” is now more flexible and dynamic, and embraces new kinds of intimacies that were once ignored or condemned.’³

These shifts are reflected in the language used by both the government and the judiciary when they consider and discuss families.⁴ The foundational document of the previous coalition government stated that, ‘The Government believes that strong and stable families of all kinds are the bedrock of a strong and stable society.’⁵ Similar rhetoric appears within judicial language; in Fitzpatrick v Sterling Housing Association Ltd.⁶ Lord Clyde observed that ‘The concept of the family has undergone significant development during recent years, both in the United Kingdom and overseas … Social groupings have come to take a number of different forms’,⁷ and in Ghaidan v Godin-Mendoza,⁸ where Lord Millett observed ‘times change, and with them society’s perceptions change also’.⁹ More recently in Re G (Children) (Shared Residence Order: Biological Non-Birth Mother),¹⁰ Black LJ observed that ‘Families are formed in different ways these days and the law must attempt to keep up and to respond to developments’.¹¹ Thus, both the government and the judiciary now acknowledge a greater variety of relationships as ‘family’.

However, in spite of this apparent shift in the understanding of ‘family’ and the range of recent legislation concerning various aspects of the ‘family’,¹² there are relatively few statutes which utilise the term – at least as a concept activating legal consequences¹³ – and the law in the United Kingdom lacks a single, overarching definition. In Fitzpatrick¹⁴ Lord Nicholls observed that:

Family is a word with several different meanings. In some contexts family means children (‘when shall we start a family?’) In other contexts it means parents and child (‘accommodation suitable for families’). It may mean all persons connected however remotely by birth, marriage or adoption (‘family tree’).¹⁵

Because of the variability and indeterminacy inherent in the concept of ‘family’, I will argue that the judiciary – and the law itself – draws upon an archetypical, but determinate image of ‘family’; the traditional, nuclear family. In this way, I argue that relationships and family forms are considered by law in light of this idealised image of the nuclear family and are granted recognition as ‘family’ based upon the extent to which they are understood as resembling that archetypical family. Consequently, I suggest that relationships are examined on the basis of whether they can be located within the boundaries of the nuclear family model or whether they can be constructed as performing the same functions as the nuclear family. To understand how and why the law relies upon this idealised image of ‘family’,¹⁶ it is necessary to first consider the meaning of ‘family’ as a wider social concept.

Accordingly, this chapter will begin in section I, by considering ‘family’ as a social concept, observing the lack of an overarching definition within the literature and the apparent difficulty of producing such a definition. In section II, I will consider three legal definitions of ‘family’ which exist within specific contexts. I will argue that, in spite of the legal recognition of diverse family forms, these legal definitions of ‘family’ remain predominantly based around the idealised image of the traditional, heterosexual, nuclear family: the nexus of the conjugal relationship and the parent/child relationship.

I.‘Family’ as a Social Concept

‘Family’ is central to our understanding and experience of human existence. As Bernardes states ‘Most people in Western industrialised societies, and probably most people worldwide, consider family living as the most important aspect of their lives’.¹⁷ However, in spite of this importance of our families in shaping our identity, it is apparent from the sociological literature that the term ‘family’ is not easily definable; as Coltrane observes ‘we can never be quite sure what family means unless we can understand the context in which it is used’.¹⁸ This reflects the evolving nature of the cultural understanding of family;¹⁹ Leeder has commented:

The family has been around since the beginning of humankind and clearly will exist in some form forever … The family in the world is in process: resilient, the family copes with the forces acting on it and adapts in an ongoing manner that makes it a highly elastic and changeable form.²⁰

The suggestion from the literature is that ‘family’ is not a fixed concept with a readily identifiable, simple definition. In this section, I will consider sociologists’ attempts to understand the meaning of ‘family’ and conclude that the lack of a fixed meaning has resulted in the law lacking a readily available and identifiable social construction of ‘family’ to underpin its understanding. Moreover, I will argue subsequently that this absence of a simple definition has created the conceptual space which is filled by the idealised image of the traditional nuclear family.²¹

Given the lack of a readily apparent and straightforward definition of ‘family’,²² some theorists have sought to understand and illuminate the meaning of family by reference to a variety of characteristics, features and connections which are said to be consistent across different family forms. Morgan suggests that the term ‘family’ should be employed ‘to refer to sets of practices which deal in some way with ideas of parenthood, kinship and marriage and the expectations and obligations which are associated with these practices’.²³ Such theoretical understandings of the ‘family’ are often premised upon the emotional bonds between individuals, with these connections being articulated using a variety of terms; for example, intimacy,²⁴ love²⁵ or trust.²⁶ In this regard, Cheal suggests that ‘a family is considered to be any group which consists of people in intimate relationships which are believed to endure over time and across generations’.²⁷ These statements illustrate the nebulousness that is seemingly inherent to such conceptual understandings of ‘family’, which necessarily cannot be simply rendered as descriptions that would readily identify those relationships which are included and those which are excluded from ‘family’.

Other writers have attempted to provide a slightly more detailed description of the shared characteristics of families. McKie and Callan, for example, identify three ‘principles and ideas’²⁸ which families are constructed as sharing: ‘values’, ‘memories’ and ‘spaces and places’.²⁹ These understandings of ‘family’ propose that it is the shared experiences and the quality of the relationships involved that are the significant, defining features of the ‘family’. Moreover, McKie and Callan attempt to provide greater clarity, identifying five ‘common characteristics’ of families, these are ‘a common identity’, ‘economic co-operation and ownership’, ‘reproduction of the next generation’, ‘care work and domestic labour’ and ‘co-residence’.³⁰ However, it is suggested that these chosen characteristics are illustrative of the problems involved in attempting to provide greater detail, beyond reference to ‘values’ or ‘principles and ideals’, because these characteristics (particularly ‘reproduction of the next generation’) involve choices and judgements which would exclude some family forms from this framework for understanding the ‘family’.

Related to this emphasis on characteristics, experiences and relationships, some theorists have also attempted to understand the ‘family’ by focusing upon the social role performed by families and identifying the core functions of families.³¹ Silva and Smart suggest that the ‘family’ is not underpinned by a specific structure or form, but instead ‘In this context of fluid and changing definitions of families, a basic core remains which refers to the sharing of resources, caring, responsibilities and obligations. What a family is appears intrinsically related to what it does.’³² Moreover, there is a growing and developing body of work which seeks to ground a definition of ‘family’ within the literature on t...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Table of Contents
• Table of Cases
• Table of Legislation
• Introduction
• PART I: THE FAMILY
• PART II: THE CONJUGAL RELATIONSHIP
• PART III: PARENTHOOD
• PART IV: THE FUTURE
• References
• Index
• Copyright Page