Traditional and Functional Views of the Family in the Law
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TRADITIONAL AND FUNCTIONAL VIEWS OF THE FAMILY
IN THE LAW
Megan Atack*
The continuing evolution of the family in society
parallels the legal concept of family as anything but
static.' The ambiguous relationship between the law
and family is consequently grounded in the disputed
role of the law and whether it should define what a
family is.2 In this article, it will be argued the law is
taking an increasingly functional approach to outlining
the family and the parameters of family law,3 yet this
approach has nonetheless reinforced the patriarchal
hetero-normativity of the traditional nuclear family.4
Additionally this article will portray family law as a
chaotic platform with atypical and elusive bounds,5
which the law has unsuccessfully attempted to
normalise.6 Finally, it will discuss the public-private
division in law and will argue that law should privatise
the family so far as it achieves the aim of balancing
autonomy, equality and protection of the vulnerable
and exploited.
Historically the law took a formalist approach
where for legal purposes family was determined by
formal status, predominately the heterosexual
marriage.' This was relatively straightforward, as
outlined by Asquith U, it was an 'abuse of the English
language' to determine social units outside of the rigid
formal status of heterosexual marriage' as families.9
Thankfully, the law has progressed beyond this
restrictive approach and, instead of defining family,
has taken a functionalist approach in validating
relationships that fit within its elusive description,
what Diduck describes as its 'club' of family.0 For
instance, since the 1970s, societal changes, like the
decline in marriage and no fault divorce, have
transformed the legal family from a restrictive term of
art2 into a flowing, inclusive3 adjective.14
Indeed, the judiciary are increasingly accepting of
differing family forms and seem aware of the need to
facilitate an adjustment of legal status to align with
societal change,15 particularly for homosexual
relationships as demonstrated in Ghadian v Godin-
Mendoza.16 Yet, in becoming more inclusive, the
judiciary in cases like M v Secretary of State for Work
and Pensions17 have neglected to effectively value the
multitude of family forms in emphasising the
Newcastle University, LLB (Hons) Law.
'Rebecca Probert, Cretney 's Family Law (5th edn, Sweet & Maxwell 2003) 3.
2 Katherine O'Donnovan and Alison Diduck, 'Feminism and Families: Plus Ca Change? in Alison Diduck and Katherine
O'Donnovan (eds), Feminist Perspectives on Family Law (Routledge Cavendish 2006) 7.
3 Edward Stein, 'Looking Beyond Full Relationship Recognition for Couples Regardless of Sex: Abolition, Alternatives and/or
Functionalism' (2010) 28 J Theory and Practice 345, 351-352.
4 Alison Diduck, 'Shifting Familiarity' (2005) 58 CLP 235, 247.
s John Dewar, 'The Normal Chaos of Family Law' (1998) 61 MLR 467, 467.
6 O'Donnovan and Diduck (n 2) 6.
Robert E Gross, Amy Adams Squire Strongheart (eds), Our Families, Our Values. Snapshots of Queer Kinship (Harrington Park
1997) xvii.
Jill Black and others, A Practical Approach to Family Law (91h edn, OUP 2012) 4.
9 Gammans v Ekins [1950] 2 KB 328 (CA) 331 (Asquith LJ).
10 Diduck (n 4) 236.
1 John Eekelaar, Family Law and Social Policy (Weidenfeld and Nicolson 1978) 156.
12 Lord Evershed, 'Foreword' in Ronald H Graveson and Francis R Crane, A Century of Family Law (Sweet & Maxwell 1957)
vii.
13 John Eekelaar, Family Law and Personal Life (OUP 2006) 26.
14 Ronald H Graveson and Francis R Crane, A Century of Family Law (Sweet & Maxwell 1957) vii.
s Eekelaar (n 11) 156.
16 [2004] UKHL 30, [2004] 2 AC 557 [139] (Baroness Hale); cf Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27
(HL).
17 [2006] UKHL 11, [2006] 2 AC 91 [113] (Lord Walker).](ViewImageLocal?handle=hein.journals/neastlr4&div=13&collection=&method=preview&ext=.png&size=3)
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Traditional and Functional Views of the Family in the Law
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