Relationship Between Family and Law
One cannot explain ‘What is family law’ without addressing the complex issue of defining the concept of ‘family’ itself. The understanding surrounding what a family is has certainly changed over time. There is ‘no one experience of family’[1] and it is ‘ludicrous to argue that there can be one type of family’[2]. This essay will demonstrate what family law is and why is it such a complex phenomenon. By firstly defining what is meant by the ever-changing concept of family. Secondly, how the changing nature of family has impacted family law practice. And thirdly, illustrate the complexity of explaining what is family through critical analysis of key theories; using their limitations and benefits. Thus concluding to the point that Family law is in-coherent, unique and complicated to define due to the nature of those are governed by it.
The understandings of a family have changed over time
The Judiciary in 1950s assumed a conservative position where defining a union of two heterosexuals without marriage as a family was deemed ‘an abuse of the English language’[3], whilst later acknowledging this union as family only if it demonstrated ‘permanence and stability[4]’. Fast forward 25 years, ‘a judicial shift’[5] occurred, the concept of a family expanded to ‘longstanding, close, loving and faithful monogamous homosexual relationships[6]’,with Ghaidon[7] asserting the that concept of family is beyond ‘marriage’[8] and blood. Families are changing from nuclear to bi-nuclear families. A reassessment of old law against social progress lead to Civil Partnership Act 2004 and Marriage and Civil Partnership Act 2014; thus governing same-sex relationships as family.
The traditional family consisting of married parents with children is depreciating and diverse formulation of families are becoming dominant in modern society. In 2011, only 65% of families involved a married couple and whilst in 1971 91.6% of children were born to married parents this number dropped to 52.3%[9]. Family life is evidently changing and therefore, the question ‘what is family law’ is very complex; the changing trend illustrate a dynamic familial environment and public attitude towards co-habitation and single-parenthood through its rise.
Considering the changing relationship between law and the family; what is the role of family law?
Family law is contemporary and it deals with changing roles and social relations of families. The notion that family law is ‘governing relationships between adults in close emotional relations as well as between adults, children and the state’[10] is limited; it only scratches the surface. Rather a comprehensive definition would encompass, as well as the obvious, the influence of issues of sexuality, tax, immigration and property to name a few as family law ‘supports and governs these familial environment’[11]. But It is impossible to devise a mechanism which deals with all the diverse and varied forms of families and their situations thus family law is about providing copious legal mechanisms to govern. Thus Family law is about regulations, unlike other areas of law such as Criminal law; where ‘good behaviour’ is shaped by law through punishment. Family law is not disciplinary; it can only send moral messages about desired behaviour, not strictly deter and punish otherwise.
What is family law in practice; considering the changing relationship between law and family?
Family Act 1996 attempted to deter divorce and shape public behaviour by encouraging use of ‘free marriage guidance’ [12]but studies suggest this largely failed to produce results. This is because family law is actually in the background; in reality it only intervenes when a family life ‘enters difficulties’[13]. Divorce has replaced death as the main reason for premature ending of marriage. Consequently people are not looking for ‘the love of their life’[14] but rather a relationship that is ‘fulfilling’[15], which would explain the rise in divorce because society is in a shift towards individualism. Herring argues that women are ‘less willing to accept a subservient role in marriage and expect a partnership of equals’[16] so to extrapolate when this is not achieved they resort to divorce. In divorce proceedings, where children are involved, both parties separate on the basis of conflicting interests. However, they usually share ‘one common interest’ which is to resolve the conflict in a manner ‘that is both fair and minimally damaging to themselves and their children’[17]. Family law hence provides a legal framework within which such agreements between parties can occur, law lends ‘normative standards’ and provide background against which lawyers help their clients[18]. Thus, it is sensible and reasonable to view ‘family law as a process’.