Family Law Research Paper

In this short article, I will first lay out the various ways of conceptualizing the role of law in family life as the framework within which the individual, the family, and the state define their mutual obligations, and second examine the implications of these models for the framing and operation of the legal assumptions and instruments which regulate family matters.

As Aubert has pointed out, both law and social science are concerned with social interaction: with rights and expectations, with obligations and sanctions, and with predictability (Aubert 1963). But the same terms are used for different purposes. The lawyer uses a normative framework; she gives directions to her client and expects action to follow. The social scientist, on the other hand, observes and describes, seeking to identify and to explain patterns of behavior. The lawyer interested in family work is often concerned with how people behave in family settings, as well as with the strict applications of legal rules. The social scientist who looks at family law is often policy aware and interested in the practical implications of the work, as well as in the theoretical analysis. The study and development of family law in many different societies, including Japan, Italy, France, the UK, the USA, Australia, and Poland has been imbued with collaboration between social scientists and lawyers (Murayama 1999, Ronfani 1991, Bastard and Cardia Voneche 1995, Commaille and Singley 1997, Maclean and Eekelaar 1998, Weitzman 1991, Funder 1996, Maclean and Kurczewski 1994). The result is a rich understanding of law in family life.

2. Families, Politics And The Law

What do we want from law in the context of family life—as opposed to business life, or economic life, or international relations?

The way we model our answer will depend on our view of the family, of the law, and of the state. Let us take three examples of the interweaving of politics, family life, and the law: an old fashioned liberal democracy, an old democracy emerging from totalitarian rule, and a new democracy emerging into a multicultural society. From these examples, we shall derive our models.

In the predominantly secular UK, discussion of the boundaries between the obligations of individuals to each other as individual citizens or as members of family groups (however these are defined) usually is couched in economic rather than in moral terms. In times of economic stringency, there is a tendency to retrench public spending and to stress the obligations of families to support their members, and also to extend the ties which carry a duty to support. For example, the obligations of parents who do not share a household with their children will be highlighted and enforced. Such moves are countered by the claims of weaker family members, usually women and children but also the older generation, to establish their right to call on the public purse as individuals, irrespective of their family relationships. In the UK, family forms have changed and diversified as a result, in part, of the increased opportunities to form separate households when housing became more widely available in the late 1960s and early 1970s. We have experienced a divorce explosion and a rise in cohabitation. More older people are forming separate households, more women are working despite limited child care, and more men are unemployed.

‘Supporting families’ has become a political slogan attracting universal support in the UK, but for a variety of reasons. Family life is seen as an answer to the need for increased social control, particularly of young delinquents, and also as the alternative to public provision of shelter and support. The conservative administration of the Thatcher era was active in passing legislation to increase the visibility and enforceability of private obligations as an adjunct to the rolling back of the welfare state. Thus, the UK saw the paradox of a government committed to ‘privatizing’ the family and to withdrawing from intervention in family matters but compelled to construct a regulatory framework in order to do so. The Child Support Act of 1989 stands at the pinnacle of this policy. This Act attempted to reverse the widely held assumption that when a couple separate and the breadwinner repartners and produces a second family, their resources should be mainly available to the household in which they now live and not be directed back to the first set of children. The Act firmly stated that first children must have first call on their absent parent’s resources. To achieve this change, the government, which was pledged to reducing the role of the ‘nanny state,’ was required to take draconian powers of investigation and enforcement.

On the other hand, in Poland between 1945 and 1990, the family had a unique role as the only institution supported both by the ruling Communist Party and by the Catholic Church, for different reasons but with a similar purpose. The family was seen as the institution through which moral values are best transmitted and reinforced, and as a powerful agent of social control. In times of intellectual and spiritual alienation, the family became of primary importance as the place where trust predominated over suspicion and where communication could be frank and open. When there were shortages, the family functioned as an effective searching, queuing, and allocating organization, providing specialist’s support for the group in bringing home goods in short supply, or in helping with access to jobs and housing. Following this period of intense interdependency, it has been suggested that family members may wish to withdraw from this level of closeness and move towards the pure relationships of coupledom, parenthood, and friendship defined by Giddens (Reith Lectures 1999). But if the public welfare provision of care for children and care for the sick and elderly break down, then the family may be needed to replace these functions. Despite the emphasis on individual rights and liberties in the free market after the end of authoritarian rule in Poland, family values remain strong and are reinforced by the Catholic Church, whose wish to restrict divorce and abortion has had a profound impact on family law since 1990. Divorce has been removed to the higher level of the courts, which means a long wait and increased costs to the petitioner. And at the same time, the long struggle in the Sejm to restrict the right to abortion succeeded in January 1993 by a narrow margin.

For our third example, let us look to South Africa. Those who prepared the new Rainbow Constitution, which signals the passing of the apartheid regime, have struggled with the question of whether to constitutionalize the rights of the individual to marry the person of his choice and to found a family. The Constitutional court acknowledges that a number of international instruments clearly establish the right to form and live in a family. But although many constitutions expressly defend the family (e.g., Germany, Pakistan, China), many do not (e.g., Austria, India, Singapore, Taiwan). The South African government decided not to constitutionalize family matters, stating that the very nature of the family, particularly in multicultural and multifaith societies, is so diverse that it is best to leave the fundamental rights and liberties in relation to family life to the basic principles of freedom, security, and choice. ‘Then through legislation, the development of precedent in courts, social custom and practice, the different forms of family life will manifest themselves and be appropriately protected. The minute you constitutionalize the family, the courts are obliged to establish a prototype of what is meant by a family, and families take such diverse forms in South Africa that this could impose a straight jacket on future developments.’ (Eekelaar and Nhlapo 1999).

3. Modeling Family Law

We have looked at three very different examples of the interrelationship between the political situation, the institution of the family, and family law. Now we will try to draw on these variations to develop a set of models which incorporate the key elements and illuminate our own choices. We can categorize the family law system according to the level of intervention accorded to the state in family life.

3.1 The Interventionist Model

In societies where the state has a strong and coherent message to communicate, based on a political or religious ideology or world view, we tend to find an interventionist model of family law. The function of the family may be to raise good socialist citizens, as in the former communist countries of Eastern Europe, or to raise good catholic citizens, as in Southern Europe. In the former, divorce and abortion were freely available, gender equality was well developed, citizens were equal in the eyes of the state, and labor productivity required women to be available for work. In the latter, divorce and abortion were unavailable. If the family is seen as a box with walls of varying degrees of porosity, in interventionist societies the box is very transparent and porous, allowing the regulatory system to enter. In this model, the family is less able to function as an institution of civil society but, instead, serves the dominant ideology, whether secular or sacred. Such a system has difficulty providing for a multicultural society and traditionally obscures ethnic differences. Such systems ironed out the differences in family life between the Roma, Turks, Pomacks, and Bulgarians in Bulgaria (Maclean and Kurczewski 1997).

3.2 The Residualist Or Minimalist Model

The residualist model lies at the other extreme of our continuum. In this model, the family is seen as the desirable or competent source of nurture, caring, social control, and perhaps moral education. In such a model, the walls of the family box are dense to opaque, and the state does not easily penetrate the private family world. The function of the law is to do no more than protect the weaker members of the family group from violence or neglect. This may be left to the criminal law rather than requiring a special form of intervention through family law. Such a model is not acceptable to feminists, as nonintervention in effect favors the status quo and does not redress the power imbalance characteristic of patriarchal societies.

3.3 The Facilitative Model

There is, however, a middle position which may be termed the Facilitative model of family law. Under this approach, family law is required to respect the human rights outlined above and (Eekelaar and Nhlapo 1999) to be based on the underlying principles of freedom, security, and choice, to enable each individual to develop to the fullest and to accommodate the varieties of faith, ethnicity, and sexual orientation. Such a model would encompass acceptance of cohabitation, same sex marriage, assisted reproduction, abortion, divorce, and remarriage, and maybe polygamy and polygyny.

4. The Way Ahead

Whichever model of family law underpins the regulatory system of a particular country or state, there do seem to be some common directions for change. In the 1980s and 1990s, writers on family law identified what became known as the rolling back of family law, that is, the increased reliance on individual decision-making and the removal of a number of matters related to personal relationships from legal intervention. It became less common for legal rules to regulate choice of marriage partner (i.e., the old restrictions from the Judaeo–Christian tradition on marrying the dead wife’s sister which conflict with the Moslem requirement to take on responsibility for a dead brother’s wife). In many societies, no-fault divorce became a matter of personal choice. But although the couple relationship is coming to be seen more as a matter of choice, and to lie outside the boundaries of legal regulation, the relationship between parents and children becomes more exposed and subject to increasing legal intervention. Where children live in households with parents, the need for protective legislation remains, but the need for regulation of how the household sustains itself is minimal.

But as couple relationships become divorced from the parenting function, the need for legal regulation of the obligations of parents increases. If two people produce a child, and either never live together or separate, and either or both go on to have other children with other partners, the potentially conflicting obligations between this network of parents and children requires a regulatory structure. We referred earlier to the difficulty in the UK when the Child Support Act in 1991 required a change in the distribution of the assets of the absent parent, requiring him to give priority to the children born first, and not to children currently sharing the new household. This was a hard switch to make, and it aroused great public outcry.

But there is a further aspect of the parent–child relationship which may also give rise to legal regulation in the future. With an aging population, and the rolling back of welfare provisions, we may be looking to adult children to offer more support to their elderly relatives. After the establishment on a firmer footing of child support, we may need to consider legislating for parent support. Such a development manifests a view of family law as no longer concerned with moral codes of behavior or political ideologies, but as trying through basic human rights principles to deal as best it can with multicultural and multifaith societies. Family law is developing to deal with personal obligations such as material obligations to support and enable.

At the same time, as the thrust of legislative intent focuses on obligations, rather than on rights, so too there is a move away from lawyers and courts to enforce these obligations. We see a resurgence of interest in paralegal activity and in finding alternative methods of dispute resolution. Mediation and conciliation, which require the individuals concerned to take responsibility for arrangements made in family matters, are expected to reduce levels of hostility and to produce longer lasting settlement. Empowerment of the individual is thought to be well served by these means, together with improved ability to communicate, which will be increasingly important as parents continue to take long-term responsibility for their children while no longer sharing a household.

Finally, as family arrangements become more attuned to individual choices in societies with a more tolerant view of different ways of arranging personal life, the ability to negotiate and to adjust becomes more important than the ability to fight for a particular right. If we continue to move in this direction, then it is probable that family law will become less concerned with adjudication or settlement of disputes, and more concerned with the business of managing change. A separation or divorce will involve less acrimony, and there will be clear directives on how to allocate responsibility for children. Legal intervention in families may come to resemble the technical financial advice of the accountant, rather than the fighting spirit of the old divorce lawyer ‘taking the husband for all he’s got’ or ‘making sure she doesn’t get away with a penny.’ The family law of the past was prescriptive, derived from the allocation of property between marrying groups. The family law of the future will be grounded in human rights and will facilitate the maximization of individual choices about personal living arrangements. It will ensure protection for the vulnerable family member, who is likely to be defined by age and relationship to the labor market, rather than by gender.

Bibliography:

1. Aubert V (ed.) 1963 Sociology of Law. Penguin, Harmondsworth, UK
2. Bastard B, Cardia Voneche L 1995 Professional intervention in divorce. International Journal of Law and the Family 9: 275–85
3. Commaille J, Singley F (eds.) 1997 The European Family. Kluwer, Dordrecht
4. Eekelaar J, Nhlapo T (eds.) 1999 The Changing Family. Hart, Oxford, UK
5. Funder K 1996 Remaking Families. AIFS, Melbourne, Australia
6. Maclean M, Eekelaar J 1998 Parental Obligation. Hart, Oxford, UK
7. Maclean M, Kurczewski J (eds.) 1994 Families, Politics and the Law. Oxford University Press, Oxford
8. Maclean M, Kurczewski J (eds.) 1997 Family Law and Family Policy in the New Europe. Hart, Oxford, UK
9. Murayama M 1999 Does a lawyer make a diff International Journal of Law Policy and the Family 13: 52–77
10. Naoumova S 1997 Ethnicity and Family. In: Maclean M, Kurczewski J (eds.) Family Law and Family Policy in the New Europe Hart, Oxford, UK
11. Ronfani P 1991 Towards a Dejuridification and a Dejurisdictionalisation of the Family in Family Law and Social Policy. Onati Proceedings (13)
12. Weitzman L J, Maclean M 1991 The Economic Consequences of Divorce. Oxford University Press, Oxford