Defining Family in a Law Context

Defining Family in a honor Context1. IntroductionThe term family is a fluid concept1, used to describe different forms of expressions regarding the link shared in undercover liveness based on care and interdependence. It comprises of different relationships, including homosexual or heterosexual couple with or without children, cohabiting with or without sanctioned formality.2 Therefore, if the family is the core social environment in society, then family honorfulness is any form of governing and supporting those close emotional relationships between adults, children and the state.3 However, it is difficult to sic the family fairness due to changes in social norms and standards. There is also a wide range of fairnesss, such as immigration honor and employment law4, that may pick out significant influence on family life, therefore family law usually is considered as an ambiguous and incoherent subject.5To explore the question of what family law is, this paper get out see k to address two main issues. First, to discuss the ways to define the concept of family within the law. Second, to evaluate what family law is from several different theoretical approaches.2. ever-changing ideas of family in lawThe traditional concept of family in law takes the idea of the nuclear family, which comprises of a marital heterosexual couple with children.6 Apart from the context of marriage, it was considered an subvert of the English language to include other relationships.7 According to the statistics provided by the Office for National Statistics (ONS)8, the number of the nuclear family has decreased 500 thousand compared to the data from 2000 to 2015 mend the cohabiting couple family has become the fastest growing family type reaching 3.2 million in the past decade. Meanwhile, the most common family type changes from the idealised family into the form of the married couple or civil partner couple without any children.9 This daub pushes the law to respond to this gap10 by flip-floping from the traditional nuclear family into the idea of untried Families.11The concept of New Families12 begins with the recognition of unmarried couples regardless of children, but still contracts an appropriate degree of apparent permanence and stability.13 Same sex relationships has recently been judge as a family in Fitzpatrick v Sterling Housing Association,14 where longstanding, close, loving and faithful, monogamous homosexual relationshipsis deemed to make someone a member of a family.15 doll Hale also highlights that widening the scope of the family, regardless of the sex, could recognise the importance the principles of dignity, humanity and pertainity.16 Therefore, the law does not limit the definition of family life and accepts the different forms of family as long as they can establish the degree of intimacy and stability and sharing of lives.However, the law has categorised an exclusion, friendship has been refused as the relationship of the f amily due to drop of degree of intimacy and stability.17 Arguably, Diduck argues that there are blurring lines between family and friends in contemporary society, as friends become lovers and lovers become friends 18.3. What is Family fair play?This section examines how the family law works in relations to the family. The functions have been briefly divided into four main categories cling toion, regulation, radiating message and promotion of equality, and further use several theoretical approaches respectively for evaluation.i. security system and SupportA Good parent in a family is usually considered as a person who provides physical, emotional and financial support for their children. They also protect the children and family members from harm.19 In terms of the functionalist approach, family law has a series of goals to be fulfilled.20 Eekelaar has suggested that the main objectives of family law are the enforcers of protection and support to the family.21 As an example, the most common situation encountered by law is national violence. According to the research by the ONS, there are over 78% of incidents of the domestic abuse involved violence.22 The introduction of Family Law work on 1996 is one of legislation for allowing the victims to achieve the help for protection. It attempts to bring consistency to the civil remedies and emphasises the protection of the human rights for safeguarding victims from domestic violence.23 The application of this law yielded positive results, as the data provided by the ONS showed the numbers of domestic violence have generally decreased by 0.7 million over the past decade.24However, difficulty arises when it is assumed that the law is the only factor to influence the family. 25 By using the above example, the law influence may not be the sole reason for the reduction of domestic violence, thus there are other possible factors to improve the domestic violence situation, such as government support and educational po licy.26The uncertainty of family law further arguably undermines this approach where it is difficult to simplify the laws into one single goal. In the case of the 1996 Act on divorce claims that it is pursuing two turnabout goals, including, to encourage marriage and to make it possible to break down the marriage with as little bitterness as possible, therefore, it cannot precisely assess the effectiveness of family law.ii. polity and Adjustment of family lifeThe relationship between law and family has been described as the protector of private life.27 However, the traditional division of public and private sphere have given rises to debates of whether it is appropriate to regulate the private life by the law. The opinion of traditional liberal position suggests that it is improper for the state to regulate and intervene on private affairs.28 For example, if the law illegalises adultery, it cogency violate the privacy of family life. It also seems impossible and difficult for th e law enforcers to control all private properties for the adultery issue.Respecting private life upholds the principle of autonomy. The traditional liberal position respects individuals decisions about how they wish to develop their own beliefs and personality on the family issue.29 Arguably, the promotion of autonomy principle does not necessarily mean that the law should be entirely cast out of the private sphere. Some undesirable 30forms of family life, such as child abuse, readiness require and deserve the intervention to regulate and adjust to the private family life. For example, there has been an increase of criminal law used against parents whose children misbehave. Therefore, it is not a clear picture to tell apart one of intervention or deregulation.Although the law is difficult to have clear-cut for public and private intervention to family life, it seems to endorse the shift to privatisation. The law attempts to regulate the private life less and less.31 The law encoura ges divorcing couples to use mediation for the family and financial dispute resolution, rather than settling it through court. The current Government also gives the clear steerage about the role of the court that the law should focus on protecting the vulnerable from abuse, victimisation and exploitation and should avoid intervening in family life draw out where there is clear benefit to children or vulnerable adults in doing so.32 In other words, the law can focus on the regulation and adjustment of the family in crisis. 33iii. Sending Message to the PublicWith collaboration with the family regulation policy, the Law Commission recognises the ability of family law was to send the message to the public about the desirable demeanour of good family living.34 Law upholds the traditional values of nuclear families with unrestrictive form, underlining those qualities as an ideal family model. Therefore, the law encourages the former partners of the divorced family and lone parent fami lies to go on to make a new family35, rather than focusing on the remedying the broken family. The government policy takes this approach to achieve good divorce, now defined as one that creates the separate-but-continuing family.36The message sent by the law can be reviewed through the usage of judicial language and style in the appraisals.37 Traditionally, the expression of paternalism or welfare highlight the breadwinner in a traditional patriarchal family was responsible for supporting continually his pre-separation marital obligation after the breaking-down of marriage.38 In the 1990s, the judgment starts to shift to the language of equality or rights, which supports and assumes a diverse and democratic form of family. The breadwinner became obliged to share what became re-conceived as the fruit of the marital partnership. 39 The language radiates the message that the law shifts to emphasise the principle of non-discrimination, mutuality, right or entitlement and equality.iv. P romotion of Equality Family law positively promotes the principle of equality and non-discrimination. The widening scope of what is a family, by allowing diverse relationships is a significant indication of justice, equality and inclusivity.40 The enforcements of polite Partnership Act 2004 and Marriage (Same Sex Couples) Act 2013 grant most of the rights and responsibilities of marriage to the registered same-sex couples to enjoy the equal right and status for family life41 as the heterosexual marriage couples. 42Arguably, there are still some limits on equality and discrimination. On 21st February 2017, the Court of appeal rejected heterosexual couples entering into civil partnerships.43 The judgment fails to allow the couples to seek fairness and equality and to eliminate discrimination between heterosexual and homosexual couples. The judgment has further potentially violated the human rights under Article 14 taken with Article 8 of the European Convention on Human ripe(p)s (E CHR)44. The couples might not make their personal family choices. Hence, Lord Arden further urged the need to change the law by the Parliament.To further argue regarding inequality within the law. Historically, the law has discriminated against women in divorce where the husbands are able to divorce their wives on the basis of adultery. However, the wives are only able to divorce their husbands based on the grounds of the incestuous adultery.45 Therefore, the law seeks to emphasise the concept of equality before the law that both men and women are on equal footing 46and to avoid men abusing their gender to obtain an unfair advantage.The law also ensures everyone in society could equally access safety and justice through the law. In terms of domestic violence, the depict provided by the Rights of Women, mentions that there are up to 40% of women who could not satisfy the restrictive requirements of Legal Aid.47 On 23rd Feb 2017, the removal of the five-year limit and the admission of fresh categories of evidence aims to help large numbers of women and also men, who were previously been deprived of legal advice and representation, can obtain legal aid for family disputes.48 Estelle du Boulay, Director of Rights of Women commented that this renew commitment is both victory for women and also for common sense.49 The law is lowering the thresholds for more people to seek the justice through law.However, feminist perspectives argue that there is still a loophole between gender equalities. They criticise the disadvantages from the assumption of the traditional gender role in society the father is the active breadwinner whilst the mother is the traditional mean solar day to day carer. 50 Yet, SRJ v DWJ 51 invokes the entitlement of monetary value for the contribution of the wife that she gave up her work as a teacher to concentrate on her family. The court attempts to redress the gender imbalance that exists in the traditional family-based discourses. Therefore, th e parties respective responsibilities to each other base on the discourse of rights, compensation, mutuality, and gender equality.524. ConclusionFamily law is a special law due to the wide scope of families and wide ranges of issues it deals with throughout its historical and contemporary period. This paper has examined family law from four different categories Functional, adjustive, radiating message and equality. Although these four categories might not cover all issues, it briefly summarises the main principles of family law and further evaluates its effectiveness regarding on concerned issues.ReferencesBowcott O, Court Rules Against Heterosexual Couple Who Wanted Civil Partnership The Guardian (2017) accessed 7 March 2017Bowcott O, Legal Aid Shakeup Hands actionline To domestic help force out Victims The Guardian (2017) accessed 26 February 2017Dewar J, The Normal topsy-turvydom Of Family Law (1998) 61 Modern Law ReviewDiduck A and Kaganas F, Family Law, sexual activity A nd The State Text, Cases And Materials (3rd edn, Oxford Hart 2012)Diduck A, Shifting Familiarity (2005) 58 Current Legal ProblemsDiduck A, What Is Family Law For? 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(2011) 64 Current Legal Problems 2893 Jonathan Herring, Family Law (7th edn, Longman, Essex 2015) 16 -174 ibid.5 John Dewar, The Normal Chaos Of Family Law (1998) 61 Modern Law Review 4676 Herring (n 3) 47 Gamman v Ekins 1950 2 KB 328, 3318 Families And Households- Office For National Statistics (Ons.gov.uk, 2015) accessed 24 February 2017.9 ibid.10 Alison Diduck and Felicity Kaganas, Family Law, Gender And The State Text, Cases And Materials (2nd edn, Hart publishing 2017), p.911 Herring (n 3) 7-1212 ibid.13 Dyson Holdings Ltd v Fox 1976 QB 51314 Fitzpatrick v Sterling Housing Association 2001 1 AC 2715 ibid 32.16 Mendoza v Ghaiden 2004 UKHL 3017 Martha Minow, All in the Family in All Families Membership, Loving, and Owing 1992-1993 95 WVLR 31918 Alison Diduck, Shifting Familiarity (2005) 58 Current Legal Problems 25019 Geoffrey Shannon, Family Law (1st edn, Oxford University Press 2011).20 Herring (n 3) 1721 John Eekelaar, Family law and social policy (2nd edn, Weidenfield and Nicholson, London 1984) 24-2622 Alan Travis, Domestic Abuse Accounts For One In 10 Recorded Crimes ON S The Guardian (2016).23 Herring (n 3) 29924 John Woodhouse and Noel Dempsey, Domestic Violence In England And Wales (House of Commons Library 2016) 525 Herring (n 3) 1726 Refuge For Women and Children Against domestic violence, Starting In School To End Domestic Violence accessed 7 March 2017.27 Herring (n 3) 2128 ibid.29 Herring (n 3) 2230 Sonia Harris-Short and Joanna Miles, Family Law Text, Cases And Material (2nd edn, Oxford 2011) 1231 Herring (n 3) 2432 David Norgrove, Family Justice Review Final Report (The Ministry of Justice, the Department for Education and the Welsh Government 2012) accessed 12 March 2017.33 Harris-Short and Miles (n18) 1234 Law Commission Report No.192, Family Law Ground For Divorce (1990) accessed 26 February 2017.35 Diduck (n 17) 23836 ibid.37 Diduck (n 2) 29238 ibid.39 Diduck (n 2) 29340 Diduck (n 22) 23941 Article 8 of Human Rights Act 1998, Right to respect for private and family life42 The Guardian, Marriage Has Changed Throughout Its History. Making It Equal Changes It For The Better (2015).43 Owen Bowcott, Court Rules Against Heterosexual Couple Who Wanted Civil Partnership (the Guardian, 2017) accessed 7 March 2017.44 Article 14 of ECHR, Prohibition of discriminationArt 8 of ECHR, Right to respect for private and family life,45 The Matrimonial Causes Act 1857 c.85, XXVII, On Adultery of Wife or Incest, and of Husband, Petition for Dissolution of Marriage may be presented.46 Munby LJ, Re G (Education Religious Upbringing) 2012 EWCA, para 2447 Rights of Women, Evidencing Domestic Violence Nearly 3 Years On (2015) accessed 26 February 2017.48 Owen Bowcott, Legal Aid Shakeup Hands life line To Domestic Violence Victims (the Guardian, 2017) accessed 26 February 2017.49 ibid.50 Minow (n 17) 31351 SRJ v DWJ 1999 3 FCR 153 CA52 Diduck (n 2) 297