Family Law

Before turning to examine some of the specific tasks confronting family law, it may be helpful to sketch the larger background against which these tasks are undertaken. That background is one of significant changes, or transitions, in the objectives, assumptions and techniques of family law systems (Glendon 1989). It has been suggested (Dewar and Parker 2000) that family law has passed through a number of eras—a formal era (which was in place from the introduction of judicial divorce in the mid-nineteenth century until the late 1960s and early 1970s), a functionalist era (which began when the formal era ended), and the complex era (which started towards the late 1980s and early 1990s).

In the formal era, family law rested on an identifiable legal-conceptual structure. Marriage was a contract in the sense of being a set of voluntarily assumed rights and obligations, but in the nature of a contract of adhesion and thus not freely negotiable. Under this model, spouses had identifiable rights and obligations, and remedies were available for breach of marital entitlements. Thus, divorce was available only on proof of commission by a spouse of one of a carefully defined list of matrimonial offences; innocence or guilt of matrimonial misconduct affected the consequences of a divorce in terms of money and children. This model of marriage also affected the civil status of the parties to it, especially the wife. For example, a husband could not be prosecuted for raping his wife; spouses could not be compelled to testify against one another in a court of law; and spouses could not sue each other for personal injuries.

The introduction of no-fault divorce marked the shift to a functionalist era. Marriage could be ended without proof of fault, but instead with proof of irretrievable breakdown, usually evidenced by a period of separation. The functionalist era of family law was one in which the task of the legal system was to assist parties in negotiating transitions, and employ judicial order-making power to achieve certain welfare-defined outcomes, rather than allocating punishment or blame. This functionalist model was seen to be supportive of family life—and of the institution of marriage in general—because it enabled individuals to move on from bad marriages to more satisfying ones. It thus marked a shift in techniques of family governance, from control through restriction to control through managed change (Smart 2000).