Family Law

The functionalist era has now been displaced by the complex era. It will become apparent that there is no single set of ideas or explanations lying behind the trends characteristic of the complex era, although there may be some loose connections between them. Instead, the patterns are diverse, fragmented, and sometimes contradictory.

The shift from functionalism to complexity can be seen in the following aspects of modern family law. First, marriage has been displaced as the central concept linking law to families. Instead, legislation increasingly recognizes other relationships, such as unmarried cohabitation, or attaches greater significance to existing ones, such as parenthood. Some jurisdictions have gone further and have created new forms of marriage or legal partnership to accommodate those who cannot enter marriage in its conventional sense (Barron 2000). At the same time, concerns about the instability of marriage have led to calls for a return to fault-based divorce laws, or for offering couples the option of entering marriages that are harder to exit than normal ones (Wardle 1999). Ironically, perhaps, these seem to offer a return to an older—prefunctionalist—mode of family governance.

Second, there has been a retreat from the discretionary legislation that was the core of the functionalist model. Family law legislation is increasingly drafted in more specific, rule-like, terms. For example, child support legislation, whether drafted as judicial guidelines or as legislation creating a separate agency charged with assessment and enforcement of child support, is drafted in terms of fixed entitlements rather than discretionary awards. Rules on property adjustment are similarly debated in terms of increasingly clearer rules rather than broad discretions (Blumberg 2000), whereas legislation on postseparation parenting often includes statements of principles of equality between parents, or of rights of children, in mandatory rather than discretionary terms. The explanation for this lies in governmental desire to control the costs of family breakdown to the welfare state and the legal system; an increased tendency to conceive of parties in family law disputes as bearers of rights rather than as objects of welfarist interventions; and a perceived need to offer a clearer set of principles for law in this area, so that parties are more easily able to arrive at their own agreements rather than having to litigate.

Third, there is a greater emphasis on family autonomy in decision making, through promotion of binding prenuptial agreements, and nonjudicial forms of dispute resolution for those who have no ready-made agreements to fall back on. Once again, this trend is informed by a wish to remove family disputes from costly judicial arenas as much as possible, while at the same time drawing on the concepts of individual, empowerment, responsibility, and autonomy as self-sufficient justifications for parties to agree without court or professional involvement. Indeed, it seems that the role of law itself—or, at any rate, of lawyers—is sometimes in question.

A final shift of emphasis has been in the area of postdivorce parenting. Under the functionalist model, the emphasis was on assisting parties to move on from one relationship, and household, to the next. The language was that of the clean break, of "looking to the future." In this context, little prominence was given to the issue of how ongoing relationships were to be maintained or managed between children and their nonresident parent. That issue has now moved to center stage, with policy makers increasingly concerned to respond to demands from nonresident parents, often framed in terms of fathers' rights, for greater participation and involvement in the lives of children. Indeed, much attention is focused on how best to manage postseparation relationships centered on children, including (perhaps especially) those relationships characterized by high conflict.