Family Law

A central concern of modern family law is how familial relationships should be defined, and for what purpose (Diduck 2001). Under the functionalist model, as we have seen, marriage was the chief means by which families were linked to law. Marriage conferred a status, in the sense of rights not available to others, in private and public law. There was only limited recognition of other forms of family organization as having legal significance. Marriage is a convenient conceptual device for making families visible in law, provided that most family life is conducted within marriage. The difficulty facing legal policy in this area, however, has been the dramatic shift in attitudes and social practices in relation to nonmarital cohabitation and other family forms. This leads to two consequences, both of which have reduced the centrality of marriage as a legal concept.

The first is growing practical and political pressure to grant nonmarital relationships some form of legal recognition (Graycar and Millbank 2000). The terms and consequences of that recognition, however, are not settled (Polikoff 1993). For example, should such recognition be a matter of choice by the parties, or is it to be imposed; and in either case, how far should recognition extend and with what consequences? In some cases, it is argued that marriage itself, or something like it, should be extended to embrace couples previously excluded from it (e.g., same-sex couples). Indeed, in some jurisdictions there has been explicit judicial or legislative recognition of a right to marry for same-sex couples, by entering either marriage itself or something similar to it (Barron 2000). In most jurisdictions, however, legislation is confined to involuntary recognition of unmarried cohabitation, with consequences less far-reaching than those attaching to marriage.

The second is an increased prominence for the legal status of parenthood—if relationships between adults are increasingly fragile and transitory, at least the parent-child relationship is susceptible of clear proof, and is enduring. Indeed, in many jurisdictions, the legal consequences of being a parent are of far greater practical significance (especially in terms of child support) than are the consequences of marriage. The net result is that there is no privileged legal perspective on families—instead, the law now offers a variety of lenses through which family relations may be understood, whether between adults or between adults and children.

The most obvious evidence of this is the growth in child support schemes, which impose significant financial obligations on separated parents, whether they are married to the other parent or not. One consequence of this is that for many couples, especially those with few capital assets, the financial consequences of a separation will be the same whether they are married or not—it is the presence or absence of children that will make the biggest difference.

The increased significance of parenthood can be seen as the function of three separate developments. First, it is a necessary consequence of a policy of removing any distinction in the legal treatment of marital and nonmarital children, and of eradicating the common law concept of illegitimacy. One effect of this is that, from the child's point of view, the marital status of the parents is, or should be, irrelevant—what matters, in other words, is parenthood, not marriage.

Second, the decline in marriage as a social practice has meant that some other legal technique was needed to link men to children, and to impose parental obligations on men, especially obligations of support. Parenthood is a way of tying men into the nonmarital family. As Richard Collier (1995) has suggested, the rise of parenthood can be seen as a "widening of the net of paternal authority through facilitating the making of links between men and children just at the time when rising trends of divorce, cohabitation, step-parenthood and serial marriage might appear to have been breaking down the traditional family unit."

Third, parenthood has become a means by which family law maintains a notional set of links between family members after separation. That family law is increasingly emphasizing the maintenance of economic and legal ties between parents and children after separation, as if to create the illusion of permanence in the face of instability, is discussed below. Because, by definition, neither marriage nor cohabitation is available for the purpose, these continuing links are founded on parenthood.