Critical Analysis of the Role of Functionality in 21st Century Family Law

Introduction

The law regulating the family is a fast-changing field of study and practice, covering a broad range of issues and concerns arising from personal relationships. Yet one of the major issues with modern day family law surrounds the recognition of these relationships, specifically its failure in some regards to develop and evolve in line with changing social norms. Granted, progress has been made in certain areas, for example the introduction of same-sex marriage[footnoteRef:1] and Civil Partnerships for LGBT couples[footnoteRef:2] and the enactment of statute which enables same-sex couples and single persons to adopt.[footnoteRef:3] These are undoubtedly progressive measures that have attempted to remedy issues of discrimination and have helped promote equal rights for those who wish to formalise their relationships.[footnoteRef:4] But these widely applauded, undeniably positive reforms have also highlighted a major issue: family law’s obsession with formalism. [1: Marriage (Same Sex Couples) Act 2013] [2: Civil Partnership Act 2004] [3: Adoption and Children Act 2002] [4: ‘Same sex marriage becomes law’ (17 July 2013) https://www.gov.uk/government/news/same-sex-marriage-becomes-law accessed 16 February 2020]

Formalised relationships are exceptionally popular in England and Wales, as demonstrated by the statistics. Marriage is undoubtedly the most popular form of relationship; there were 24.1 million people in England and Wales who were married in 2016 which was 50.9% of the population aged 16 and over.[footnoteRef:5] There are a range of historical, social, economic and political reasons for this which will not be discussed in this dissertation. Further, this paper will not provide comment on whether this institution and formalism generally are still necessary and befitting the nature of 21st century society. Rather, it will consider whether formalism can provide adequate protections for the diverse range of relationships found in England and Wales today. [5: ‘Population estimates by marital status and living arrangements, England and Wales: 2002 to 2016’ (ONS, 13 July 2013) https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/bulletins/populationestimatesbymaritalstatusandlivingarrangements/2002to2016 accessed 17 February 2020]

The title of this dissertation is a quote taken from Waite LJ’s judgment in the well-known family law case of Fitzpatrick v Sterling Housing Association.[footnoteRef:6] This case is one of the leading authorities on the meaning of family, demonstrating the severe injustices associated with prioritising those who formalise their relationships over those who do not. This has consequently highlighted modern-day family law’s need to embrace the functional approach, which shall be discussed in greater detail throughout this dissertation. However, before embarking upon this critical analysis, it is important to make clear exactly what is meant by the term functionality. [6: Fitzpatrick v Sterling Housing Association [1999] UKHL 42]

The ‘functional’ or ‘function-based’ definition of family is one that allows benefits and privileges to be bestowed on associations of individuals that materially perform functions similar to a family. In other words, instead of looking at whether a relationship has been formalised, we would look to the physical operations of the ‘family’ and the activities performed by its members. For example, mutual love and support, sexual relations, caregiving, financial interdependence and home-sharing may be considered as some of the functions associated with a family. This simultaneously allows an evolving conception of what ‘family life’ means, especially given the increasing diversity of modern-day relationships.[footnoteRef:7] Functionality is thus in contrast with formalism which is a static form of relationship that requires strict documentary evidence, for example celebration of a marriage or registration of a civil partnership. [7: Ruth Lamont, Family Law (OUP 2018) 13]

This dissertation focuses on adult relationships and not those between adult and child. Children are dependent on adults for emotional, financial, physical support[footnoteRef:8] and these criteria are widely regarded as essential by society, social services, the government and the law.[footnoteRef:9] There is little doubt about which functions need to be performed or what constitutes good care for a child whereas adult family functions are more complex and harder to define because there is no consensus on what functions we should identify as most important.[footnoteRef:10] There is a strong general consensus regarding what children need from their carers throughout the course of their upbringing[footnoteRef:11] and so non-traditional family structures are able to fulfil these basic needs. For example, if you have a non-parent taking good care of a child, they may be able to get recognition, not necessarily as legal parents, but through conferral of parental responsibility if they obtain a child arrangements order.[footnoteRef:12] If the parents wish or have their consent dispensed with, this non-parent could even adopt the child.[footnoteRef:13] [8: ‘Looking for a Family Resemblance: The Limits of the Functional Approach to the Legal Definition of Family’ [1991] 104 HarvLRev 1640, 1655] [9: ‘Childcare and parenting’ https://www.gov.uk/browse/childcare-parenting accessed 29 January 2020] [10: n 8, 1657] [11: Kristen E. Darling-Churchill and Laura Lippman, ‘Childhood social and emotional development: Advancing the field of measurement’ (2016) Journal of Applied Developmental Psychology 1-7] [12: Children Act 1989] [13: n 3]

This dissertation explains that, for a variety of reasons, 21st century family law requires greater use of the functional approach and is divided into three chapters. The first focuses on formalism, exploring issues associated with the idealised relationship and government loyalty to formalised relationships. It contemplates the practical benefits of formalism but also the shortcomings of overreliance on form over function, considering some of the associated injustices found in the case law. The second critiques the functional approach, illustrating the benefits of a functional approach in the 21st century such as its ability to further social progress in the sense that the formal approach has given previously non-recognised relationships legal standing. However, it also acknowledges that functionality comes with an array of issues such as difficulties for the courts and Parliament when prioritising some family functions over others and problems for individuals such as proving they perform the specific functions. The third and final chapter attempts to provide a way forward, arguing that functionality and formalism should coexist as equivalents in 21st century family law. It proposes greater engagement with functionality principles and a re-imagined version of functionality, explained through economic interdependency under trusts of the family home in the cohabitation context.

Chapter One: A critique of formalism in family law

Chapter One looks at formalism exclusively. It explores the concept of the idealised definition of family and considers the prevalence of such a unit in 21st century society. It explains possible reasons for why the government venerates the idealised model of the family and questions why the focus of government policy has been to prioritise and support legally recognised relationships whilst making far less progress on protections for those who decide, for whatever reason, not to formalise. The benefits associated with obtaining legal recognition of a relationship will be set out in an attempt to understand why the government is in staunch support of formalism, divided into two components: the protections that individuals obtain as a result of formalism; and the benefits for the judiciary, specifically the convenient documentary evidence formalised relationships provide. Criticisms of formalism are offered and formalism’s place in the 21st century discussed, contrasting the historical position with the positive social attitudes demonstrated towards cohabitation today. Government policy will be considered, and which will incorporate a discussion as to whether these are out of touch and have failed to keep up with modern day views, neglecting the fastest growing form of family relationship by failing to legislate to protect them. To contextualise this argument, this chapter concludes with two case studies that demonstrate the dangers of prioritising form over function.

It must be made clear that not all the privileges are bestowed solely on those who are married and civil partnered, leaving nothing for cohabitants – cohabitants are still entitled to some, albeit minimal, protections. Formalism is premised on a prioritisation of one relationship, which in turn results in some relationships being side-lined, leading to diminished recognition, prioritisation and support. However, if formalism is heralded at the expense of functionality, individuals in stable, loving and socially beneficial relationships can be stripped of their security and left exposed and vulnerable.

This chapter lays foundations for the argument advanced in Chapter Two that formalism needs to be approached cautiously by the courts and policy makers. At the same time, greater engagement with functionality principles should be encouraged if we are hoping to modernise family law and protect those who are vulnerable. So, whilst formalised relationships will continue to be a popular choice for some couples, caution needs to be exercised for the exclusionary effect of formalism.

Critiquing the idealised definition of family

One of the key debates in modern family law is the question of ‘what is a family’ and how the law should identify and support/protect family relationships. Whilst the law is able to adapt and develop to change the definition of family in line with social norms, for decades the government has idealised a formalised family unit comprising a husband and wife along with children. The mid-twentieth century image of a ‘white, middle-class couple with two children’[footnoteRef:14] springs to mind, as illustrated by Douglas: ‘[w]hen politicians refer to ‘the family’, they often seem to have a particular type in mind, usually incorporating… a man and a woman, with offspring, and a sexual division of labour whereby the husband/father is the primary bread winner and the wife/mother is primarily responsible for the home and the children’.[footnoteRef:15] This model is based on various conventional and somewhat outdated ideals, that family units are heterosexual, conjugal and procreative. [14: Alison Diduck and Felicity Kaganas, Family Law, Gender and the State Text, Cases and Materials (3rd edn, Hart Publishing 2012) 15] [15: Gillian Douglas, ‘Towards an understanding of the basis of obligation and commitment in family law’ (2016) 36 LS 1]

Relationships in the 21st century, particularly those in the England and Wales, have begun to diversify and develop meaning this idealised family unit is becoming far less prevalent.[footnoteRef:16] The debunking of the aforementioned idealised ‘family’ is best shown through several examples. [16: n 14, 16]

The ideal of the heterosexual family unit has been challenged. Most notable have been the introduction of Civil Partnerships, creating a brand-new method of formalism that did not exist before, as well as the introduction of same-sex marriage.[footnoteRef:17] Furthermore, the role of men and women in relationships has evolved, rendering the government’s views that the father acts as a breadwinner and mother as dutiful housewife outdated and redundant. This is best demonstrated by Lord Nicholls who stated that in relation to the granting of financial remedy orders on divorce, that ‘as a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so’.[footnoteRef:18] The government started to recognise this with the introduction of independent taxation of married women in 1990. Recent years have also seen those in ‘sex-less’ relationships challenge the idealised relationship, arguing that platonic, home-sharing relationships should be able to establish a familial nexus and thus be entitled to legal protections.[footnoteRef:19] This includes more controversial areas such as Civil Partnerships for siblings, which potentially blurs the lines between relationships of genetics and marriage, and which in late 2019 was the subject of a private member’s bill to amend the Civil Partnership Act 2004 to permit such relationships. [17: n 1] [18: White v White [2000] UKHL 54] [19: Carega Properties S.A. v. Sharratt [1979] 1 W.L.R. 928]

Cumulatively these developments show a clear departure from the idealised definition. The problem is that despite the above, the idealised definition still continues to persist as a stereotype.

Government policy and its implications

Despite the evolving nature of the family and the diversity of family forms, strong support for formalism is reflected in recent government policy which has been concerned with promoting the idealised relationship.[footnoteRef:20] The Conservative Party 2015 manifesto strongly declared its values in relation to encouraging marriage heralding the value of couples and the commitment that people make when they get married.[footnoteRef:21] The Prime Minister at the time David Cameron writing for the Daily Mail declared, ‘[t]here is something special about marriage: it’s a declaration of commitment, responsibility and stability that helps to bind families. The values of marriage are give and take, support and sacrifice – values that we need more of in this country’.[footnoteRef:22] Specifically, government favouritism towards marriage is evident from its policies where it has attempted to strengthen marriage: same-sex marriage, the marriage tax allowance, and couple relationship education.[footnoteRef:23] This idealised form of relationship is an after-effect from the legacy of 20th century attitudes towards family relationships. As explained by Cretney, ‘although at the beginning of the 20th century people undoubtedly had intimate relationships outside of marriage, marriage was the only socially approved basis for the creation of the family unit’.[footnoteRef:24] Historically, it is evident that the idealised definition was sacrosanct and thus it may be that such a socially, legally and politically entrenched philosophy is difficult to destroy.[footnoteRef:25] [20: Stephen Gilmore and Lisa Glennon, Hayes & Williams’ Family Law (6th edn, OUP 2018) lxxi] [21: The Conservative Party Manifesto 2015 http://ucrel.lancs.ac.uk/wmatrix/ukmanifestos2015/localpdf/Conservatives.pdf accessed 30 November 2019] [22: David Cameron, ‘Marriage is good for Britain – and that’s why I’m backing it with a tax break’ (Mail Online, 27 September 2013) https://www.dailymail.co.uk/debate/article-2435723/DAVID-CAMERON-Marriage-good-Britain–thats-Im-backing-tax-break.html accessed 18 February 2020] [23: Elizabeth van Acker, ‘Disconnected relationship values and marriage policies in England’ (2016) J.Soc.Wel & Fam L, 38:1, 36] [24: Stephen Cretney, Family Law in the Twentieth Century: A History (OUP 2005) lix] [25: ‘Gender ideology and the destruction of family and the rule of law’