Family Law Complete Notes
W14 / Intro to Family Law
What is family law?
● Family law is the set of rules that manages relationships between members of the social
institution we call ‘family’. Can be genetic, affective, economic, political - describes ways
in which we are bound by law into a legal family.
● Commonly includes marriage, divorse, separation, parentage, adoption, custody,
surrogacy … has both personal and financial consequences,
● Understood as ‘private sphere’ as opposed to ‘public sphere.’ But note that this public /
private distinction is itself contested. Family is about public policy. The state has high
stakes in defining and maintaining families.
● Specifically in this module, we are concerned about relationships between adults.
Nature of the Module
● Focus on policy values, including fairness, equality (especially gender equality),
autonomy (with a network of relationships) and social, economic protection.
● Family law is socio-legal in orientation. This means the law simply cannot be read in
isolation from its context.
● Theoretical underpinnings inform the legal definitions of ‘family’ used throughout Family
Law.
● Much of family law is statutory but foundational cases have made their mark in the
evolution of societal understanding of family.
Knowledge and learning outcomes
1. Explain, analyse and evaluate the legal rules, concepts and values governing and
regulating intimate or domestic relationships between adults.
2. Recognise the development of family law, including the institutions and procedures,
within a broader historical and social context.
3. Think critically about family law and policy: to take nothing at face value, to go beneath
the surface of the law to critically analyse and evaluate it, both in oral discussion and in
written assignments.
4. Locate and apply relevant statutory and case materials to research questions or
problems to construct and develop solutions to resolve legal problems and disputes
which may arise when the family relationships are formed and when family relationships
break down.
There are non-timetabled recordings to watch.
Assessment:
● Formative assessment: an AOB (Abstract-Outline-Bibliography): March
○ Lecture in week 19 will focus on how to prepare an AOB.
, ○This is an optional assessment to help you prepare for the summative
assessment. You are encouraged to do it as you will receive helpful feedback.
● Summative assessment, May:
○ Open book, 72-hour timeframe.
○ 1 essay style question (1500 words); and 2 problem style questions out of a
choice of 3 (1250 words per problem question).
○ Each element is weighted equally.
Resources
● The handbook is your main resource for all questions regarding the module.
● The required textbook is Jonathan Herring, Family Law, 9th edition, Pearson, 2019.
● 2019-20 edition of Rob George’s Family Law Statute Book, Oxford University Press.
What is in family law?
Family and household: Contemporary demographic trends (Herring textbook)
● People marry less and marry older;
● More cohabitation, more births outside of marriage;
● More visible, same sex relationships;
● More single parent households;
● More single-person households;
● Ageing population (more extended family, more multi-generation households);
● More adults living with their parents;
● More migration, family separation and reunification.
Change, but also continuity
● Gender equality:
○ Mothers - career and motherhood,
○ Fathers - more involved but ultimately the burden of childcare falls to mothers
because of normative expectations? Still rare for fathers to take up paternity
leave.
● Individualisation:
○ Personal choices guide our lives more than community, family, etc.
○ But decisions are enabled by family, mode possible by family, in reaction to
family.
○ As a matter of fact, we’re not self-made, we’re the product of family, whatever
form this takes, whether it’s positive or negative.
Family as a good in itself?
● Research tells us that families are helpful for:
○ Emotional security / protection.
○ Developing identity.
○ Protecting each other and protecting the state.
○ Helping you achieve your goals.
, ● But there are oppressive and dangerous families. Research also shows:
○ Most harm to children is perpetrated in the home.
○ covid-19 has shown starkly that homes are not just a safe place that protect us
from the virus, but can also be a trapped unsafe enclosure.
○ Historically protected under the language of ‘private matters’ and under private
law. The ideology of the sacred family hides a reality that’s often complicated.
○ Channels energy and labour or people you love; encouraging people to only do
good for those that they love in society rather than society at large? If we didn’t
have family, would we all be more charitable, more orientated towards
collectivity? Erodes public good.
○ Sociologists are not mainly interested in good/bad families, but in the what and
how of family lives as social facts.
How does / should the law define the ‘family’?
● There is no single, universal concept of the family, but various family forms. The law still
needs a workable concept.
● Historically, kinship gets defined by biology and by law.
● Herring charts five modern ways to define it:
○ Average person on the street; formalistic (objective criteria; is there marriage,
children, etc); normative / idealized (but does it match reality); subjective /
self-definition; function-based.
● New visions of family tend to be function-based: not what families are but what they do.
Function-based definition
● Based on the functionalist approach to family by sociologists.
● Contrast to formalist, idealised.
● Not about who families are (their status) but about what members do and why they do it.
● What are the functions of families?
○ Sex / reproduction? Security and care? Economic protection?
○ ECHR - family life does not have to include marriage.
Care as a new vision for family
● Fineman, Didduck and others note a shift from sex to ‘caring’ as the core function of
families. (see Herring p.15-16)
● How does this ‘care’ vision impact on family law and policy?
○ E.g. Does caring for a neighbour make them part of your family?
○ What about couples that live in separate houses? Care over cohabitation.
● What issues might this entail for law?
○ Definitional? Evidential? Moral?
The importance of defining the legal family
● These terms are used in wills, deeds, statutes and regulations. If there are disputes over
membership, courts are required to determine who falls within the definition, and who is
excluded.
, ● HRA gives the right to privacy and respect for family life, so we need to know what that
means.
○ E.g. Art 8 - Right to respect for private and family life: ECHR & commission
distinguish family relationships and family life. Relationships of dependency help
to prove family life.
● Benefits and privileges (from the state) may be granted or denied to the individuals
concerned, depending on how broad / narrow the definition - high stakes.
● Politically and theoretically, the question of who is family underpins policy.
● If we are promoting ‘family values’ then we need to know what is being promoted.
○ Is it the desire to be contributing, ‘productive’ members of society?
○ Is it to ensure reproduction, serving a natalist agenda for the nation?
○ Is it the desire to ensure that people have their support networks and this don’t
rely on public provision from the state - this is referred to as the privatisation of
care.
● Remember: the family does not have legal personality as such, in contrast with the legal
concept of a company. Family law is therefore about relationships between individuals,
relationships which arise because of an individual’s special capacity or status as a family
member.
● ‘[...] aim to offer definition that is broad enough to protect family members in the family
unit, address human rights violations that occur within families, and broadly support the
well-being of family members’
○ Fareda Banda and John Eeekelar, ‘International Conceptions of the Family’ 66
(2007) Int’l and Comp Law Q
Family Law & Housing Law
● Barlow (2007) identified a ‘symbiosis’ between the two: ‘shared household as a legal tool
with which to identify family relationships (...) it was in the more pragmatic response of
the courts to housing law issues that new-style de facto families came to be recognised
by law’ (Barlow 2007:11)
● Housing law goal: to offer statutory protection for tenants in the private rented sector (the
first Rent Act in 1915).
● Security if tenure, complemented by the provision for statutory succession on the death
of the tenant.
● Encroachment on landlord’s property rights. Housing law focuses on finding the balance
between the landlord’s property rights and providing security for tenants.
Rent Act 1977
● Allows partners / family members to carry on the tenancy of their deceased spouse /
family member either on the basis of schedule 1(2) ‘spouse or living together as his or
her wife or husband’ or schedule 1(3) ‘as a member of the family’.
● If a spouse: can be statutory tenancy (lower rents, possession order needed for eviction,
can pass on, better protections)
● If a family member: can be assured tenancy (higher market rents, no possession order
needed for eviction, cannot pass on, protections are not as good as that of a spouse).
