FAMILY LAW - WHAT IS THE FAMILY?
ONS definition 2021: “A ‘family’ is a married, civil partnered or
THINGS TO CONSIDER WHEN DEFINING FAMILY:
Stalford (2021) says that in relation to any definition think about the context and the
objective:
GENERALITIES cohabiting couple with or without children, or a lone parent,
with at least one child, who lives at the same address; children Context -> "in some circumstances, ‘child’ is a biological construct, determined by
reference to the minor’s blood tie with the adult; in other circumstances, ‘child’ is
may be dependent or non-dependent.”
Children's commissioner 2021 definition: “To understand an age-based construct…”
families across the country, we need to listen to families Objective -> What is the objective of the definition of the family
themselves. It is through listening to the voices of children and
young people, parents, and carers that we can really learn -> Suggestion is that in the context of EU law we see the definition of child changing
what family is, what it means, and how it is valued by those according to context of EU law and objective - so important to think about that
within them.”
Definition of family in law: Law doesn’t have one coherent THE EFFECTS OF A DEFINITION:
idea of the family - we see multiple definitions of the family in Distributive -> The benefits or entitlements attached to a definition e.g. cohabiting
multiple contexts e.g. defined at Section 113 of the Housing siblings do not get the same benefits as civil partners
Act 1985, Section 17 of the Children Act 1989 and other places Constitutive -> This about the way in which a definition of a family includes but
also excludes certain people. Law tells us who family is e.g. nearest relative in a
HOUSEHOLDS: NUCLEAR FAMILY NARRATIVE: particular context
Household according to ONS 2021 - “A Normative -> This is to do with the ways in which different types of families are
household is one person living alone, or a According to some, the nuclear family is the overarching valued e.g. married couples seen as baseline
group of people (not necessarily related) narrative in family law: Practical -> Lack of legal recognition for some families e.g. migrant families feel
living at the same address who share cooking Fineman (1993) - Argues that there is a normative idea of the compelled to formalise relationships to obtain benefits (Strasser has done work on
facilities and share a living room, sitting room family running through family law - that the nuclear family is these families)
or dining area. A household can consist of a an overarching narrative - 'The nuclear family as natural is
single family, more than one family or no assumed'
Hasday (2014) - Family law seems to be focusing on marriage
COHABITING COUPLE FAMILIES:
families in the case of a group of unrelated
and parenthood and fails to pay attention to other 3.6 million cohabiting couple families (an increase of 22.9% in the past decade)
people.”
'noncanonical' relatives such as grandparents - who might (ONS 2021)
This definition connects to an image of
function as substitutes to e.g. marriage and can be just as Huge increase in the number of cohabiting couple families - which is an important
what a typical house looks like
important for family life and people's wellbeing. We seem to change
Quite all-encompassing as a definition
Maybe a timeframe is required to be be taking the lack of attention toward other family types for
granted Why are the number of cohabiting couples increasing?
added to this definition
Brown (2019) - The traditional 'nuclear family' model Society’s position changing on living together
continues to dominate legal thinking, despite the diversity and Society becoming more secular
Statistics on households according to ONS
complexity of contemporary family forms in UK society. Economic constraints – cohabiting being more economically sensible
2021:
Realisation that they don’t want the state to intervene in relationships as much –
An estimated 28.1 million households in
response to the institutions of marriage and civil partnerships – people thinking
the UK in 2021 (up 6.3% over the last 10 STATISTICS:
they don’t want to be in a legal relationship
years)
Number of families in the UK:
An 8.3% increase in the number of people
In 2021, there were 19.3 million families in the UK (ONS, 2021)
living alone in the UK over the last 10
12.7 million families including a couple in a legally registered
years
partnership (an increase of 3.7% in the past decade) (ONS
In 2021: 3.6 million people aged 20-34
2021)
living at home with their parents (28% of
people in this age group; up 24% in the last
Number of lone parent families:
10 years) - Perhaps because of staying in
3.0 million lone-parent families (This makes up 15.4% of
education for longer, costs of renting or
families in the UK) (ONS 2021)
buying a home, less formation of
relationships at a young age
, WHAT IS FAMILY LAW? SUPPORT BUBBLES DURING THE PANDEMIC: TROTTER 2021
Sir James Munby in his 2018 lecture said that family law is concerned with 3 things: What was the support bubble?
Status - marriage etc. This was put in place during the pandemic where certain groups of people (those living alone or with children
'The consequences of the fracturing of the family' - what happens when a under 18) could form a bubble with another household
couple separates - consequences of relationship breakdown etc. This allowed them to interact with one and other as if they lived in the same household
Family finances - what should happen to wealth due to family breakdown or The ideas was to provide people with some form of social support whilst trying to control the spread of Covid-
inheritence? 19.
Olsen (1992): What can it tell us?
“Family law is an arena for ideological struggle over what it means to be a Relationships that had not previously attracted much legal attention (like friendships and dating relationships)
mother, daughter, wife, and so forth, as well as an arena for overt political came to find a space in which they were accorded a degree of legal reflection and recognition
struggle over power within the family and upon the breakup of a marriage.”
So she takes a more critical perspective on what the family is and that family
law involves contestation over roles e.g. does a mother have to be the
FAMILY LIFE UNDER THE ECHR:
person who gives birth Hart (2018) - Typically, when thinking about HRs we are thinking about individual but when it comes to family life
we are thinking about relationships BETWEEN individuals
The Family Justice System:
“…a family justice system can be described as comprising those institutions The right to respect for family life:
whose primary purpose is to define, protect and enforce the legal rights family A negative undertaking not to interfere with the right otherwise than in accordance with Art.8(2)
members have as family members and to resolve conflicts between family And, positive obligations on the State as per Marckx v Belgium (1979)
members concerning those rights.” (Eekelaar and Maclean 2013) Paradiso and Campanelli v Italy (2018):
“The existence or non-existence of “family life” is essentially a question of fact depending upon the existence of
QUESTION OF THE 'FAMILY' IN LAW: close personal ties…"
“The provisions of Article 8 do not guarantee either the right to found a family or the right to adopt…. The right
It is evident that gradually courts moved to a functional approach ->
to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence
of a family…, or at the very least the potential relationship"
Fitzpatrick v Sterling Housing Association Ltd [2001]:
F and T lived together for 18 years - homosexual relationship - T died and tenancy
was in his name - F wanted to claim succession rights under the Rent Act 1977 which CONCEPTUALISING 'FAMILY' AND 'FAMILY LIFE':
were only available to 'a member of the original tenant's family' There are assumptions made about family life and what it means and entails in the case law
The question: was F the spouse or a member of T’s family within the meaning of the
Act? Senchishak v Finland (2014):
Judgement - couldn't be seen as a surviving spouse because statute didn't allow for S argued that if she was removed to Russia, she would be at risk of mistreatment as her daughter would not be
this, but given the nature of the relationship the statutory provision was interpreted able to look after her. This, she claimed, would breach her Art 8 rights
to include same-sex partners as family members - so was allowed to remain in the Judgement - “The Court…reiterates the principle that relationships between parents and adult children do not fall
house within the protective scope of Article 8 unless ‘additional factors of dependence, other than normal emotional
Diduck and Kaganas (2012) - they say that whilst the functional approach taken in ties, are shown to exist..."
the case allowed F to remain in the home, it is still based on the traditional model of
the family and thus might not be inclusive of other family structures. Burden v UK (2008):
2 unmarried sisters I their 80s had lived together their entire lives - house owned jointly - worth an amount that if
The Human Rights Act 1998: one of them died the inheritance tax would have to be paid to the level - above
The ECHR - S3(1) and S6(1) are relevant - incorporated into law Argument - should be treated akin to civil partnership
Art 8 ECHR: Right to Respect for Private and Family Life Judgement - “…the relationship between siblings is qualitatively of a different nature to that between married
Art 14 ECHR: Prohibition of discrimination couples and homosexual civil partners...The fact that the applicants have chosen to live together all their adult
lives, as do many married and Civil Partnership Act couples, does not alter this essential difference between the
Ghaidan v Godin-Mendoza [2004]: two types of relationship.”
Similar situation to above case of same sex couple
The Q - could the Fitzpatrick reading of para.2(2) of Schedule 1 of the Rent Act 1977 Stübing v Germany (2012):
as excluding persons in a same-sex relationship “survive the coming into force of Patrick, a German national, was convicted of incest with his adult sister after they had a child together.
the Human Rights Act 1998”? (Lord Nicholls, para.1) Patrick argued that the conviction violated his Art 8 rights
HL - said there was no objective justification for the differential treatment of same German gov - conviction was necessary
sex couples The European Court of Human Rights agreed, noting that the domestic authorities had a wide margin of
appreciation in determining how to confront incestuous relationships between consenting adults, and that the
Federal Constitutional Court’s decision was reasonable.
, CURRENT LAW IN THIS AREA:
Should law focus on care instead of its Idea of the nuclear family as the overarching narrative in family law - Fineman, Hasday, Brown discuss this
current focus on the sexual nature of Why law might focus on sex -
the relationship? Sex is seen as a proxy of care - but, sex often takes place in casual relationships too - so these aren't necessarily relationships we want to protect
Convenience of assigning parenthood in accordance with biology - but, family types are becoming more diverse now - Kessler (2007) - current
approach of the law 'seeks to characterise as dysfunctional' families which don't meet the ideal.
INTRODUCTION:
Sir James Munby - family law is 'the law that applies
BENEFITS OF FOCUSING ON CARE: PROBLEMS AND POSSIBLE SOLUTIONS:
to families' - family law concerned with status,
fracturing of family and regulation of family finances 1 - One goal of family law is to promote certain types of relationships and give this formal recognition: Value of such relationships could reduce:
Family law in the UK does not focus on care, rather Herring - care relationships are the ones that warrant promotion because if we didn't have these Eekelaar (2007) - According legal
the focus is on the sexual nature of relationships - then the state would have the burden of care instead - and state money, time etc. would be needed protection to such relationships could
relationships such as marriage are seen as ones that to care for these individuals reduce their special nature,
warrant protection So, it is in the best interests of the state to promote such relationships of care characterised by voluntariness - may
Herring (2015) outlines goals for family law: Jakobson - 'the diminishing state help for those in need has made the private provision of care ever leave them open to manipulation -
Support and promotion of forms of intimate life more significant' these relationships are distinct for
Protection of individuals from abuse within Westwood (2013) - lots of older LGBT people who value friendship above all other relationships - being free from law and being known
family life but law doesn't protect those for love and care that occurs in them
Remedying benefits and limitations caused by a Law would then be promoting relationships that people want promoted, as opposed to vulnerable Boyd and Young (2003) - raise the
relationship groups such as migrant families having to fit and shape their families around state policies on what same point
Herring (2015) also says that a relationship of care families are meant to look like (Strasser, 2009) Counter argument - More problems if
has 4 key markers - meeting of needs, respect, We should be protecting relationships characterised by mutual care and respect we don't intervene + also Herring says
responsibility and relationality ‘the values of love, trust and care can
This essay will put forward the view that goals of 2 - Another goal of family law is to protect people from abuse: only flourish if there is a legal
family law are better met if focus was on caring State wishes to protect its citizens protection from potential abuse
relationships Human rights aspect to this too - everyone has the right to be safe in their homes caused by the vulnerabilities that
Various reasons in support of this view will be Abuse can have long term negative impact on health and wellbeing and therefore it is in the state's arise’
provided, including... best interests to ensure people do not experience abuse - domestic abuse is a particular area of
Possible solutions for difficulties arising out of such focus (Gov.UK 2022) Difficult to determine when a
an approach will also be looked at Abuse is likely to occur where there is a relationship characterised by intimacy, trust and relationship of care is deserving of
vulnerability - not sexual nature itself protection:
The law's current focus on sexual relationships means that many types of abuse often go unnoticed This is because care is a very flexible
PAST EXAM Qs: e.g. Abuse of parents by teenagers emotional abuse (Holt, 2013) concept and could mean different
Fineman (1995) suggests that family and welfare law should support caretaking as the norm for things in different contexts
‘Family law should focus on care, rather than sex.
family intimacy So admin difficulties could arise in
Caring relationships are the ones that need
Focusing on care would therefore better protect citizens, because caring relationships are the ones enforcing family law
promoting through family law, because they are the
in which abuse is likely to occur Counter argument - Herring says ‘the
relationships that are key to the well-being of
plight of those whose care goes
society. Caring relationships are the ones that can
3 - Final goal - providing remedies upon relationship breakdown: unrecognized and unrewarded
create vulnerability to abuse and should be the
Redistribution as per parties' commitment and contributions is essential and family law helps to justifies any increased bureaucratic
focus of protection. It is in caring relationships that
organise this redistribution difficulties’
the law is able to remedy the disadvantages that
flow from relationships and so promote an equal State interest in doing so - otherwise state would have to provide the party left without resources
sharing of the burdens of care. In short, family law with support using state resources POSSIBLE SOLUTIONS:
needs to be less sexy and more careful.’ (Jonathan Caring relationships = characterised by dependence and mixing of lives - so essential for
redistribution to occur following breakdown of these relationships - emotionally taxing relationships 1 -> Use of indicators such as length of
Herring). Discuss. (2019).
Herring (2015) - ‘we need financial orders on relationship breakdown that recognize the value of relationship could be used to show
care, ensure the consequences of care are shared equally’. commitment and decide which
CONCLUSION: relationships should be protected by law
Given the arguments presented above, it is possible
to conclude that law's current focus on sexual
relationships is not justifie and a focus on caregiving
relationships would help to better achieve the goals
of family law
, FRIENDSHIPS CAN BE IMPORTANT TO PEOPLE: UNNECESSARY:
Should family law recognise and
Friendships can be important for people, particularly during later life and can We don't need to protect friendships, they can protect
regulate friendships? constitute a very important part of people's social networks (Leib 2007) themselves - that is the nature of the relationship
There is now greater diversity in family types, with many people choosing not to
get married - and as such relationships such as friendships have become more COUNTER ARGUMENT -
INTRODUCTION: important This could be said of any relationship
Sir James Munby - family law is 'the law that applies For certain groups such as older LGBT people, friendships are especially
to families' - family law concerned with status, important and play a significant role in their lives - a study found that 80% of
POSSIBLE SOLUTIONS:
fracturing of family and regulation of family finances lesbian and bisexual women and 70% of gay and bisexual men said they viewed
Family law in the UK does not recognise or regulate their friends as family (Stonewell, 2011) 1 -> Stop offering of tax breaks based on relationship status - and
friendships, rather the focus is on sexual The law should seek to ensure that it is protecting relationships that citizens thus stop privileging of couples
relationships such as marriage and relationships of a deem important and worthy of protection
biological nature such that of a parent and child 2 -> Adopting Scottish model when it comes to mental health
Surviving friends don't have many rights unless legislation - friends can make decisions for someone who lacks
VARIOUS PERSONAL ADVANTAGES OF FRIENDSHIPS: capacity to do so themselves
formally named in wills etc. and so cannot benefit
from things such as inheritence tax privileges Leib (2006) -
Many individuals such as Westwood (2013) have "Friendship is central in identity exploration, identity formation, identity
called for the law to recognise and regulate development, and identity maintenance"
friendships too as these can be important "Friends confirm our sense of social and moral worth.' They allow us to feel
relationships, particularly for certain groups of "cared for and loved, that [we are] esteemed and valued, and that [we]
individuals and the lack of legal focus on these is belong[] to a network of communication and mutual obligation"
unjustified "Finally, friends can inspire innovation and creativity in our professional and
This essay will put forward the argument that.. personal lives, giving rise to new modalities of thought"
Various reasons in support of this will be put
forward including...
VARIOUS PUBLIC ADVANTAGES OF FRIENDSHIPS:
CURRENT LAW: Leib (2006) -
The state clearly reaps a public health benefit from friends who take care of
European states, including the UK - family based on
the sick and handicapped
nuclear family model
Good for business because we are likely to enter into contracts with friends -
Fineman (1993) - Argues that there is a normative
"amity... is desirable and conducive to business" - Hill and McCarthy (2000)
idea of the family running through family law - that
LIPSET ET AL. - found that patterns of friendship contribute to political
the nuclear family is an overarching narrative - 'The
integration, "democratic unionism," and a broad sense of community
nuclear family as natural is assumed'
Hasday (2014) - Family law seems to be focusing on
marriage and parenthood and fails to pay attention REGULATING FRIENDSHIPS WOULD DETRACT FROM THEM:
to other 'noncanonical' relatives such as
grandparents - who might function as substitutes to Silver (1990) -
e.g. marriage and can be just as important for family "[F]riendship in modem society is a quintessentially private relationship, not
life and people's wellbeing. We seem to be taking the normatively constituted by public roles and obligations-[and] indeed often in
lack of attention toward other family types for distinction from them."
Friendships are private and voluntary - that is what makes them special, the fact that
granted
they are free from state control
In the UK there are assumptions about coupledom
Leib (2006) recognises the argument that "Friendship and keeping it private is central
as being the norm (Roseneil et al 2020) to our freedom; without friendship's privacy we might have no authentic personal
Only time friendships can be said to be legally relations outside the control of the state"
recognised - support bubbles during the pandemic.
Support bubble defined by Trnka and Davies (2021) COUNTER ARGUMENT -
as “an exclusive social unit whose members are Sociological evidence shows that friendships are not actually so voluntary - "
allowed physical contact amongst themselves but [Friendship is not just a voluntary or freely chosen relationship. It is one which is
not with others” When this concept was introduced patterned and structured in a variety of ways by factors which can be recognised, at
during the pandemic it enabled people to draw least to some degree, as genuinely.., outside the individual's immediate control."
diverse relationships together, and defining who (Silver, 1990)
they thought was important to them as their 'family' Family is a private institution too - why does the law regulate that so much then?
ONS definition 2021: “A ‘family’ is a married, civil partnered or
THINGS TO CONSIDER WHEN DEFINING FAMILY:
Stalford (2021) says that in relation to any definition think about the context and the
objective:
GENERALITIES cohabiting couple with or without children, or a lone parent,
with at least one child, who lives at the same address; children Context -> "in some circumstances, ‘child’ is a biological construct, determined by
reference to the minor’s blood tie with the adult; in other circumstances, ‘child’ is
may be dependent or non-dependent.”
Children's commissioner 2021 definition: “To understand an age-based construct…”
families across the country, we need to listen to families Objective -> What is the objective of the definition of the family
themselves. It is through listening to the voices of children and
young people, parents, and carers that we can really learn -> Suggestion is that in the context of EU law we see the definition of child changing
what family is, what it means, and how it is valued by those according to context of EU law and objective - so important to think about that
within them.”
Definition of family in law: Law doesn’t have one coherent THE EFFECTS OF A DEFINITION:
idea of the family - we see multiple definitions of the family in Distributive -> The benefits or entitlements attached to a definition e.g. cohabiting
multiple contexts e.g. defined at Section 113 of the Housing siblings do not get the same benefits as civil partners
Act 1985, Section 17 of the Children Act 1989 and other places Constitutive -> This about the way in which a definition of a family includes but
also excludes certain people. Law tells us who family is e.g. nearest relative in a
HOUSEHOLDS: NUCLEAR FAMILY NARRATIVE: particular context
Household according to ONS 2021 - “A Normative -> This is to do with the ways in which different types of families are
household is one person living alone, or a According to some, the nuclear family is the overarching valued e.g. married couples seen as baseline
group of people (not necessarily related) narrative in family law: Practical -> Lack of legal recognition for some families e.g. migrant families feel
living at the same address who share cooking Fineman (1993) - Argues that there is a normative idea of the compelled to formalise relationships to obtain benefits (Strasser has done work on
facilities and share a living room, sitting room family running through family law - that the nuclear family is these families)
or dining area. A household can consist of a an overarching narrative - 'The nuclear family as natural is
single family, more than one family or no assumed'
Hasday (2014) - Family law seems to be focusing on marriage
COHABITING COUPLE FAMILIES:
families in the case of a group of unrelated
and parenthood and fails to pay attention to other 3.6 million cohabiting couple families (an increase of 22.9% in the past decade)
people.”
'noncanonical' relatives such as grandparents - who might (ONS 2021)
This definition connects to an image of
function as substitutes to e.g. marriage and can be just as Huge increase in the number of cohabiting couple families - which is an important
what a typical house looks like
important for family life and people's wellbeing. We seem to change
Quite all-encompassing as a definition
Maybe a timeframe is required to be be taking the lack of attention toward other family types for
granted Why are the number of cohabiting couples increasing?
added to this definition
Brown (2019) - The traditional 'nuclear family' model Society’s position changing on living together
continues to dominate legal thinking, despite the diversity and Society becoming more secular
Statistics on households according to ONS
complexity of contemporary family forms in UK society. Economic constraints – cohabiting being more economically sensible
2021:
Realisation that they don’t want the state to intervene in relationships as much –
An estimated 28.1 million households in
response to the institutions of marriage and civil partnerships – people thinking
the UK in 2021 (up 6.3% over the last 10 STATISTICS:
they don’t want to be in a legal relationship
years)
Number of families in the UK:
An 8.3% increase in the number of people
In 2021, there were 19.3 million families in the UK (ONS, 2021)
living alone in the UK over the last 10
12.7 million families including a couple in a legally registered
years
partnership (an increase of 3.7% in the past decade) (ONS
In 2021: 3.6 million people aged 20-34
2021)
living at home with their parents (28% of
people in this age group; up 24% in the last
Number of lone parent families:
10 years) - Perhaps because of staying in
3.0 million lone-parent families (This makes up 15.4% of
education for longer, costs of renting or
families in the UK) (ONS 2021)
buying a home, less formation of
relationships at a young age
, WHAT IS FAMILY LAW? SUPPORT BUBBLES DURING THE PANDEMIC: TROTTER 2021
Sir James Munby in his 2018 lecture said that family law is concerned with 3 things: What was the support bubble?
Status - marriage etc. This was put in place during the pandemic where certain groups of people (those living alone or with children
'The consequences of the fracturing of the family' - what happens when a under 18) could form a bubble with another household
couple separates - consequences of relationship breakdown etc. This allowed them to interact with one and other as if they lived in the same household
Family finances - what should happen to wealth due to family breakdown or The ideas was to provide people with some form of social support whilst trying to control the spread of Covid-
inheritence? 19.
Olsen (1992): What can it tell us?
“Family law is an arena for ideological struggle over what it means to be a Relationships that had not previously attracted much legal attention (like friendships and dating relationships)
mother, daughter, wife, and so forth, as well as an arena for overt political came to find a space in which they were accorded a degree of legal reflection and recognition
struggle over power within the family and upon the breakup of a marriage.”
So she takes a more critical perspective on what the family is and that family
law involves contestation over roles e.g. does a mother have to be the
FAMILY LIFE UNDER THE ECHR:
person who gives birth Hart (2018) - Typically, when thinking about HRs we are thinking about individual but when it comes to family life
we are thinking about relationships BETWEEN individuals
The Family Justice System:
“…a family justice system can be described as comprising those institutions The right to respect for family life:
whose primary purpose is to define, protect and enforce the legal rights family A negative undertaking not to interfere with the right otherwise than in accordance with Art.8(2)
members have as family members and to resolve conflicts between family And, positive obligations on the State as per Marckx v Belgium (1979)
members concerning those rights.” (Eekelaar and Maclean 2013) Paradiso and Campanelli v Italy (2018):
“The existence or non-existence of “family life” is essentially a question of fact depending upon the existence of
QUESTION OF THE 'FAMILY' IN LAW: close personal ties…"
“The provisions of Article 8 do not guarantee either the right to found a family or the right to adopt…. The right
It is evident that gradually courts moved to a functional approach ->
to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence
of a family…, or at the very least the potential relationship"
Fitzpatrick v Sterling Housing Association Ltd [2001]:
F and T lived together for 18 years - homosexual relationship - T died and tenancy
was in his name - F wanted to claim succession rights under the Rent Act 1977 which CONCEPTUALISING 'FAMILY' AND 'FAMILY LIFE':
were only available to 'a member of the original tenant's family' There are assumptions made about family life and what it means and entails in the case law
The question: was F the spouse or a member of T’s family within the meaning of the
Act? Senchishak v Finland (2014):
Judgement - couldn't be seen as a surviving spouse because statute didn't allow for S argued that if she was removed to Russia, she would be at risk of mistreatment as her daughter would not be
this, but given the nature of the relationship the statutory provision was interpreted able to look after her. This, she claimed, would breach her Art 8 rights
to include same-sex partners as family members - so was allowed to remain in the Judgement - “The Court…reiterates the principle that relationships between parents and adult children do not fall
house within the protective scope of Article 8 unless ‘additional factors of dependence, other than normal emotional
Diduck and Kaganas (2012) - they say that whilst the functional approach taken in ties, are shown to exist..."
the case allowed F to remain in the home, it is still based on the traditional model of
the family and thus might not be inclusive of other family structures. Burden v UK (2008):
2 unmarried sisters I their 80s had lived together their entire lives - house owned jointly - worth an amount that if
The Human Rights Act 1998: one of them died the inheritance tax would have to be paid to the level - above
The ECHR - S3(1) and S6(1) are relevant - incorporated into law Argument - should be treated akin to civil partnership
Art 8 ECHR: Right to Respect for Private and Family Life Judgement - “…the relationship between siblings is qualitatively of a different nature to that between married
Art 14 ECHR: Prohibition of discrimination couples and homosexual civil partners...The fact that the applicants have chosen to live together all their adult
lives, as do many married and Civil Partnership Act couples, does not alter this essential difference between the
Ghaidan v Godin-Mendoza [2004]: two types of relationship.”
Similar situation to above case of same sex couple
The Q - could the Fitzpatrick reading of para.2(2) of Schedule 1 of the Rent Act 1977 Stübing v Germany (2012):
as excluding persons in a same-sex relationship “survive the coming into force of Patrick, a German national, was convicted of incest with his adult sister after they had a child together.
the Human Rights Act 1998”? (Lord Nicholls, para.1) Patrick argued that the conviction violated his Art 8 rights
HL - said there was no objective justification for the differential treatment of same German gov - conviction was necessary
sex couples The European Court of Human Rights agreed, noting that the domestic authorities had a wide margin of
appreciation in determining how to confront incestuous relationships between consenting adults, and that the
Federal Constitutional Court’s decision was reasonable.
, CURRENT LAW IN THIS AREA:
Should law focus on care instead of its Idea of the nuclear family as the overarching narrative in family law - Fineman, Hasday, Brown discuss this
current focus on the sexual nature of Why law might focus on sex -
the relationship? Sex is seen as a proxy of care - but, sex often takes place in casual relationships too - so these aren't necessarily relationships we want to protect
Convenience of assigning parenthood in accordance with biology - but, family types are becoming more diverse now - Kessler (2007) - current
approach of the law 'seeks to characterise as dysfunctional' families which don't meet the ideal.
INTRODUCTION:
Sir James Munby - family law is 'the law that applies
BENEFITS OF FOCUSING ON CARE: PROBLEMS AND POSSIBLE SOLUTIONS:
to families' - family law concerned with status,
fracturing of family and regulation of family finances 1 - One goal of family law is to promote certain types of relationships and give this formal recognition: Value of such relationships could reduce:
Family law in the UK does not focus on care, rather Herring - care relationships are the ones that warrant promotion because if we didn't have these Eekelaar (2007) - According legal
the focus is on the sexual nature of relationships - then the state would have the burden of care instead - and state money, time etc. would be needed protection to such relationships could
relationships such as marriage are seen as ones that to care for these individuals reduce their special nature,
warrant protection So, it is in the best interests of the state to promote such relationships of care characterised by voluntariness - may
Herring (2015) outlines goals for family law: Jakobson - 'the diminishing state help for those in need has made the private provision of care ever leave them open to manipulation -
Support and promotion of forms of intimate life more significant' these relationships are distinct for
Protection of individuals from abuse within Westwood (2013) - lots of older LGBT people who value friendship above all other relationships - being free from law and being known
family life but law doesn't protect those for love and care that occurs in them
Remedying benefits and limitations caused by a Law would then be promoting relationships that people want promoted, as opposed to vulnerable Boyd and Young (2003) - raise the
relationship groups such as migrant families having to fit and shape their families around state policies on what same point
Herring (2015) also says that a relationship of care families are meant to look like (Strasser, 2009) Counter argument - More problems if
has 4 key markers - meeting of needs, respect, We should be protecting relationships characterised by mutual care and respect we don't intervene + also Herring says
responsibility and relationality ‘the values of love, trust and care can
This essay will put forward the view that goals of 2 - Another goal of family law is to protect people from abuse: only flourish if there is a legal
family law are better met if focus was on caring State wishes to protect its citizens protection from potential abuse
relationships Human rights aspect to this too - everyone has the right to be safe in their homes caused by the vulnerabilities that
Various reasons in support of this view will be Abuse can have long term negative impact on health and wellbeing and therefore it is in the state's arise’
provided, including... best interests to ensure people do not experience abuse - domestic abuse is a particular area of
Possible solutions for difficulties arising out of such focus (Gov.UK 2022) Difficult to determine when a
an approach will also be looked at Abuse is likely to occur where there is a relationship characterised by intimacy, trust and relationship of care is deserving of
vulnerability - not sexual nature itself protection:
The law's current focus on sexual relationships means that many types of abuse often go unnoticed This is because care is a very flexible
PAST EXAM Qs: e.g. Abuse of parents by teenagers emotional abuse (Holt, 2013) concept and could mean different
Fineman (1995) suggests that family and welfare law should support caretaking as the norm for things in different contexts
‘Family law should focus on care, rather than sex.
family intimacy So admin difficulties could arise in
Caring relationships are the ones that need
Focusing on care would therefore better protect citizens, because caring relationships are the ones enforcing family law
promoting through family law, because they are the
in which abuse is likely to occur Counter argument - Herring says ‘the
relationships that are key to the well-being of
plight of those whose care goes
society. Caring relationships are the ones that can
3 - Final goal - providing remedies upon relationship breakdown: unrecognized and unrewarded
create vulnerability to abuse and should be the
Redistribution as per parties' commitment and contributions is essential and family law helps to justifies any increased bureaucratic
focus of protection. It is in caring relationships that
organise this redistribution difficulties’
the law is able to remedy the disadvantages that
flow from relationships and so promote an equal State interest in doing so - otherwise state would have to provide the party left without resources
sharing of the burdens of care. In short, family law with support using state resources POSSIBLE SOLUTIONS:
needs to be less sexy and more careful.’ (Jonathan Caring relationships = characterised by dependence and mixing of lives - so essential for
redistribution to occur following breakdown of these relationships - emotionally taxing relationships 1 -> Use of indicators such as length of
Herring). Discuss. (2019).
Herring (2015) - ‘we need financial orders on relationship breakdown that recognize the value of relationship could be used to show
care, ensure the consequences of care are shared equally’. commitment and decide which
CONCLUSION: relationships should be protected by law
Given the arguments presented above, it is possible
to conclude that law's current focus on sexual
relationships is not justifie and a focus on caregiving
relationships would help to better achieve the goals
of family law
, FRIENDSHIPS CAN BE IMPORTANT TO PEOPLE: UNNECESSARY:
Should family law recognise and
Friendships can be important for people, particularly during later life and can We don't need to protect friendships, they can protect
regulate friendships? constitute a very important part of people's social networks (Leib 2007) themselves - that is the nature of the relationship
There is now greater diversity in family types, with many people choosing not to
get married - and as such relationships such as friendships have become more COUNTER ARGUMENT -
INTRODUCTION: important This could be said of any relationship
Sir James Munby - family law is 'the law that applies For certain groups such as older LGBT people, friendships are especially
to families' - family law concerned with status, important and play a significant role in their lives - a study found that 80% of
POSSIBLE SOLUTIONS:
fracturing of family and regulation of family finances lesbian and bisexual women and 70% of gay and bisexual men said they viewed
Family law in the UK does not recognise or regulate their friends as family (Stonewell, 2011) 1 -> Stop offering of tax breaks based on relationship status - and
friendships, rather the focus is on sexual The law should seek to ensure that it is protecting relationships that citizens thus stop privileging of couples
relationships such as marriage and relationships of a deem important and worthy of protection
biological nature such that of a parent and child 2 -> Adopting Scottish model when it comes to mental health
Surviving friends don't have many rights unless legislation - friends can make decisions for someone who lacks
VARIOUS PERSONAL ADVANTAGES OF FRIENDSHIPS: capacity to do so themselves
formally named in wills etc. and so cannot benefit
from things such as inheritence tax privileges Leib (2006) -
Many individuals such as Westwood (2013) have "Friendship is central in identity exploration, identity formation, identity
called for the law to recognise and regulate development, and identity maintenance"
friendships too as these can be important "Friends confirm our sense of social and moral worth.' They allow us to feel
relationships, particularly for certain groups of "cared for and loved, that [we are] esteemed and valued, and that [we]
individuals and the lack of legal focus on these is belong[] to a network of communication and mutual obligation"
unjustified "Finally, friends can inspire innovation and creativity in our professional and
This essay will put forward the argument that.. personal lives, giving rise to new modalities of thought"
Various reasons in support of this will be put
forward including...
VARIOUS PUBLIC ADVANTAGES OF FRIENDSHIPS:
CURRENT LAW: Leib (2006) -
The state clearly reaps a public health benefit from friends who take care of
European states, including the UK - family based on
the sick and handicapped
nuclear family model
Good for business because we are likely to enter into contracts with friends -
Fineman (1993) - Argues that there is a normative
"amity... is desirable and conducive to business" - Hill and McCarthy (2000)
idea of the family running through family law - that
LIPSET ET AL. - found that patterns of friendship contribute to political
the nuclear family is an overarching narrative - 'The
integration, "democratic unionism," and a broad sense of community
nuclear family as natural is assumed'
Hasday (2014) - Family law seems to be focusing on
marriage and parenthood and fails to pay attention REGULATING FRIENDSHIPS WOULD DETRACT FROM THEM:
to other 'noncanonical' relatives such as
grandparents - who might function as substitutes to Silver (1990) -
e.g. marriage and can be just as important for family "[F]riendship in modem society is a quintessentially private relationship, not
life and people's wellbeing. We seem to be taking the normatively constituted by public roles and obligations-[and] indeed often in
lack of attention toward other family types for distinction from them."
Friendships are private and voluntary - that is what makes them special, the fact that
granted
they are free from state control
In the UK there are assumptions about coupledom
Leib (2006) recognises the argument that "Friendship and keeping it private is central
as being the norm (Roseneil et al 2020) to our freedom; without friendship's privacy we might have no authentic personal
Only time friendships can be said to be legally relations outside the control of the state"
recognised - support bubbles during the pandemic.
Support bubble defined by Trnka and Davies (2021) COUNTER ARGUMENT -
as “an exclusive social unit whose members are Sociological evidence shows that friendships are not actually so voluntary - "
allowed physical contact amongst themselves but [Friendship is not just a voluntary or freely chosen relationship. It is one which is
not with others” When this concept was introduced patterned and structured in a variety of ways by factors which can be recognised, at
during the pandemic it enabled people to draw least to some degree, as genuinely.., outside the individual's immediate control."
diverse relationships together, and defining who (Silver, 1990)
they thought was important to them as their 'family' Family is a private institution too - why does the law regulate that so much then?
