About this sample
About this sample
4 pages /
4 pages /
The nature of family life has been on a constant flux throughout the years . Historically families had a different meaning and different roles existed between the parents. However, families have changed and society has become more open to changes such as same-sex marriages. This essay will focus on the nature of family law as a subject, and will consider different theoretical approaches that outline the difficulties in describing the relationship between law and families. In addition, the essay will also focus on the importance of defining ‘family’ in family law and why uncertainty exists in this area of law.
A family is a group of people consisting of parents and their children that love and support each other psychologically, financially, and physically and it includes blood relatives, and “people connected by marriage and adoption” . A person defines a family based on their personal experiences, their socialization process, their background and the culture they lived in. All of those factors shape the definition of a family. Some definitions such as the formalistic definition suggest that a group of people should have “certain observable traits” to be a family, others such as the function based definition focus on the “functions that a family performs” , it “focuses on what they do, rather than what they are” . These different definitions show that there is no clear way in which a family could be defined, especially because there are different types of families like cohabitation and same sex relationships.
Robert and Rhona Rapoport (1982) were one of the first sociologists to notice the changes that were happening to English families . They claimed that nuclear families were not the only type of families existing and different types of families are appearing. They argued that all types of families should be acknowledged . Furthermore, According to Herring, “family life has been transformed with cohabitation, divorce, children born through assisted reproduction, increased acceptance of same sex relationships all leading to different understandings of what family life is all about” . Herring recognizes that families are different than what they were before based on societal changes and increased acceptance of unconventional ideas. Moreover, these changes demonstrate that promoting family life or referring to family law carries with it its risks until there is a clear meaning to family law . It is important to define families because the law seeks to protect families and when it defines a family it intends to cover the groups that are regarded as a family and which parts of the law covers which individuals . This does not mean that the law excludes groups on the basis that they are not a family but that some people need the law more than others .
The Functionalist approach suggests that family law has specific functions that it aims to achieve . Eekelaar argues that family law has three functions: to protect family members from harm, to help family members adjust to different circumstances (e.g. divorce), to support and increase families . However, there are some problems with this approach. The Family law act 1996 does not only have one aim but tries to balance different aims and the law is not the only influence on family life, society also affects how a family functions . The Functionalist approach provides the judiciary wide discretion in deciding which relationships are considered a family in this functionalist perspective . Dewar claims, family law is chaotic and that it is harder to regulate because it deals with feelings and that is human nature, which is an aspect the law cannot control .
This perspective considers how the law affects men and women in particular how the law favors men more than women . Feminists claim that women are unappreciated and controlled by men and that the law discriminates against women. The roles of women and men formerly used to be, the women as a child-carer and the man as the breadwinner. Currently, these roles have changed in that women might be the breadwinners and the man might stay home and take care of the children . Feminists argue that the law formerly discriminated against women in adultery as a reason for divorce. The man could divorce his wife based on adultery but a women could not unless there was another reason that goes against morality .
Feminists claim that in divorce proceedings the court takes into account that the man, as a breadwinner, contributed financially to the home but it fails to take into account women’s contributions, which is taking care of the children or cleaning . Giddens argues that feminists stress domestic abuse and the power men hold over women , he gives an example of marital rape, which is now illegal . Other societies have honor killings which also discriminates against women based on the fact that a man can kill a women who he thinks has dishonored him. Feminists’ perspectives have some limitations to it. One of the limitations is that the different feminist ideas of Marxist, Radical and liberal feminism might be against each other, which would make their ideas weak. Another limitation is that feminists claim that the law is not doing everything it can to protect women against domestic abuse . The law, in the past, did not protect women against domestic abuse, however, these days, women are protected within the law against any abuse as a result the feminist ideas are considered outdated . Those feminists’ arguments do not take into account that some women want to be with men and want to get married . Another approach related to Feminism is the familialism approach, but according to Dewar, this approach “places much importance on woman and deprioritizes children which are also vulnerable and in need of protection” .
The public/private distinction is based on the idea that family life is divided into public and private areas . Arguments in the public/private distinction focus on the fact that the law has a right to regulate on public areas and that the law should not interfere in the private areas of family life . According to Houlgate, the law has to distinguish which parts of family life should be intervened in and the parts that should be kept private . Traditionalists argue that the law should intervene when there is any type of abuse in the family . Houlgate argues that the as long as the state reforms the law based on societal changes and adjustments are made based on family then there should be no distinction between public and private, it remains a political concept and the law must intervene . He also argues that sex is a private area and it is claimed that the law should not intervene in it, but the law does intervene because “there are laws prohibiting certain kinds of homosexual conduct” . This means that the law does intervene when it is morally obliged to intervene. His argument is that the state intervenes just by regulating areas considered private . In addition, the European law seeks to protect the private life in Article 8 of the ECHR “the right to private family life”
Moreover, the case of McGuire v McGuire shows that what happens in a household is a private matter if the spouse chooses to continue in the relationship and it is an area where the law cannot intervene and chooses not to intervene. This case concerned a wife that went to the courts in regard to her husbands’ behavior in the household and that he did not provide for her financially and did not provide the basic entities to the household. The court accepted in this case that the husband’s behavior was unacceptable but they could not intervene in such a private matter . This case shows that there is a public/private distinction in these types of cases.
Martha Fineman notes that the idea of non-intervention in the private sector is a negative aspect when it comes to privacy because privacy should not tolerate child abuse and that this area should always allow state intervention . It is very hard to draw a line between the private and the public sectors of family law, based on the idea that the women is mostly in the private part of the law dealing with the household and the husband with the market which is the public side of the law . The law cannot state to which extent it will intervene in family life because it intervenes when anything wrong happens within the private home and this depends on different circumstances . That is the reason why the law is uncertain in this area because its aim is to protect from abuse and anything abnormal and it keeps changing based on different societal changes .
As mentioned earlier, the law requires to define a family in order to know which laws applies to which groups. The changing societal changes are affecting how the laws are reformed . In Fitzpatrick v sterling house Association Ltd , the family was considered in terms of the Rent act 1977 . The court considered whether same sex couples could be considered a family. The court stressed that there should be a sexual relationship in order to prove that a familial relationship exists and that it differs from a friendship . The Fitzpatrick case shows that the law does not only have a definition problem with ‘family’ in just family law, but that it also has this problem in other areas like taxation, property and contract. Moreover, the law does not define a family based on blood relations and marriage only, but it also acknowledges that other relationships can be considered a family if they can show that there is a “degree of intimacy, stability and sharing of lives” . As Herring notes, the law takes a mixture of a function and formalist based approach .
According to John Dewar, “family law is chaotic” . He argues that it is chaotic in terms of the relationship between children and their parents . Moreover, family law deals with the legal part of the relationships between families, which are divorce, marriage, abuse etc. Family law reflects on the term family because its main focus is families and relationships that stem from families . It is argued that family law is chaotic because it may not have a clear goal of where it is heading. This could weaken the functionalist idea because functionalists argue that family law has specific functions that it seeks to achieve. In order to get a better understanding of what family law aims to do it should focus on what its functions are . The term ‘family’ is important to define in family law when looking at the private/public distinction because the law needs to know where it can intervene and whether an area is considered private and so it should be beyond the reach of the law . In addition the difficult part of assessing the relationship between families and family law is that family law tries to promote equality and it is difficult because of the changing roles of the man and women in the family .
This essay has revealed that there is no one way of defining the term ‘family’ which causes uncertainty in this area of law especially because different relationships are being accepted as a family, and as a result family law does not have a well-defined aim. The different theoretical approaches of feminists, functionalist and public/private distinction show that family law has many issues when assessing the relationship between the law and families. Family law needs to know what relationships are covered within the law in order to know whom to protect. However, if the law strikes a balance between the conflicting ideas of the different approaches it will reach its goal in defining the relationship between law and families.
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