Fundamental Principles of Family Law Essay Example

even some would say that an 'essential dichotomy surrounds the notion'7.

Geraldine Van Bueren describes the family in her article as being 'conceptualised both as a cohesive association of autonomous people and as a group of individuals subject to a higher law that protects competing claims'. 8 Yet as she clearly observes 'even after the passing of the International Year of the Family, there is still confusion as to precisely the nature of the institution that is being celebrated'9.In Fitzpatrick v Sterling10 Lord Clyde deliberated on the definition of family and found that the problem in this case was in determining 'what, short of blood or marriage, may evidence the common bond in a partnership of two adult persons which may entitle one to be in the common judgement of society, a member of the others family'11. It reflects the necessity that in searching for a legal definition of family, one must not remain within the confines of historical norms but should branch out and accommodate the many variables that exist within society.

On his definition of family, he went on to elaborate and say that 'essentially the bond must be one of love and affection, not of a casual or transitory nature, but in a relationship which is permanent or at least intended to be so. 12 Commonly the term family connotes the idea of persons being related either by blood, marriage or adoption and 'is in some ways synonymous with biological or legal kinship'13. This definition may be appropriate in defining the traditional 'media' idealistic view of family i. e.

he nuclear family consisting of a mother, father and children, but realistically it is not

an adequate reflection of the relationships that find favour in society today. In its construction the nuclear family fails to recognise that a familiar bond can occur between the common cohabiting couple, regardless of whether they are gay or straight. Arguably under the current political climate this seems absurd as the social trends would suggest that it is increasingly the 'nuclear family' that is being relegated in the social scheme of things14.The number of nuclear households has fallen since 1960, with society witnessing a 61% decline in such arrangements.

15 This coupled with the fact that more individuals are choosing to cohabit or live alone and an increase in the proportion of single parent families prompts the notion that possibly there can be no family definition nowadays that prevails over the rest. The differing traits of the various relationship types indicate more certain than not, that the definition of family through blood or by marriage can not adequately satisfy a contemporary definition of family today.Arguably this would do no justice in being a template upon which the law could intrinsically rely to represent the rights of society . In Child and Family Law16 two methods of defining a family are examined.

The first one 'embraces a clearly defined notion of the family'17. This sentiment, examined earlier suggests that a family is 'a group of people related to each other through blood or by marriage'. This may be clearly defined, but as pointed out by Elaine Sutherland18 it fails to 'recognise legitimate relationships and to offer the members of some groups the same rights as the members of other substantially similar groups' 19.The second method is

to define a family by the function that the relationships fulfil and to 'recognise those which serve some family-like function'20.

This method is more responsive to the ever changing social climate as it takes into account a diverse range of groups and thus limits the number of people who would be unfairly excluded under the heading. Peter Duckworth believes the term family connotes 'a kind of belonging, whether through a blood tie, marriage, or membership of the same household'21. He suggests that the family has indeed four focuses - next of kin, nuclear family, extended family and reconstituted family.The scope of this definition allows it to encompass the 'vast array of diverse family types'22 that society has formed and in doing so thus provides a more realistic alternative to the nuclear family paradigm. An indicative trend in the decline of nuclear supremacy, is the ever-growing practice among society not to marry.

1960 represented a year where marriage was upheld and respected as an institution. 23 Compared to contemporary society, current attitudes reveal a marked reduction in the significance of marriage.In 1991, it was predicted that 26% of 16 year olds would remain unmarried by age 50. 24 The importance of this statistic is disclosed when contrast is made with 1974, where a mere 5% were forecast to be single at 50. 25 This expanding minority also incorporates the male propensity to disregard marriage in that 50% of all men in the 30-44 age bracket will not be married by 2021. 26 This demographic shift in attitudes is juxtaposed with an increase in extra-marital cohabitation.

This is swiftly becoming a successful basis for raising children and

operating basic family life.Cohabiting couples would arguably describe themselves as a family though the government continue to maintain the hegemony of marriage. It is reasonable to conclude that given the increasing tendency to cohabit out with marriage, this should be included in a definition of family - thus including a large section of society in any universal conclusion of what a family is. The law itself provides very little statutory guidance on what a family is and up until the House of Lords ruling in Fitzpatrick v Sterling27 in 2000, there was even less up to date case law broaching the matter.In the few Scottish legislative provisions that have attempted a definition of family, Kenneth Norrie28 points out that the definition either allows for a wide interpretation as in the Children (Scotland) Act 1995 where under s93(1) family in relation to a child, includes any person who has parental responsibility for the child and any other person with whom the child has been living.

Alternatively there is a narrow definition as found in the Rent (Scotland) Act 1984. This allows the members of the deceased's 'family' to succeed to a protected tenancy29.The similar situation arises in England and Wales by virtue of the Housing Act 1980. The ambiguity surrounding the definitions means that in order to obtain a definition of family, they have to be read in light of the statute that they are contained in and this has usually meant that the definition of family has been construed in a restrictive context and thus has become rather 'heteronormative'30. The inability of the legislature to explicitly adapt any definition wide enough to catch most relationships,

has caused disarray amongst some.

This has been reflected in the few cases that have been heard in court.Maybe only a minority but they still highlight the inadequacies of the present day legal interpretation of family. In the case Dyson Holdings Ltd v Fox31 it was recognised through judicial definition that 'family' could be extended beyond marriage but it was not until the case of Fitzpatrick v Sterling32 that this notion was once again challenged resulting in the same-sex relationship being allowed recognition in a family context. The case concerned the Housing Act 1980, which permits a public sector tenancy to be signed over to a tenant's spouse or family member.The Act defines a tenant's spouse as either a person who was married to the tenant or who lived with the tenant as husband or wife. This definition was worded in such a way as to exclude same-sex partners although the government in following years did give out guidance to local authorities suggesting that this principle could be flexible where there was evidence of a long-term relationship33.

In this case Mr John Thomson, who was tenant of a flat cohabited with his partner Mr Fitzpatrick up until his death in 1994.Mr Fitzpatrick on his partner's death applied for a declaration to allow him to succeed to the tenancy under the Rent Act 1977. Under the Act a person could only succeed if he was "living with the original tenant as his or her wife or husband" or was a "member of the original tenant's family..

. residing with him in the dwelling house at the time of and for the period of two years immediately before

his death"34. In the Court of Appeal it was held that Mr Fitzpatrick did not qualify under the schedule so therefore his claim failed.In the House of Lords the claim under paragraph 2(2) was rejected but they decided by a majority of three to two that Mr Fitzpatrick was in fact a member of Mr Thomson's family for the limited purposes of the Rent Act.

In his dissenting judgement Ward LJ professed that 'The question is more what a family does than what a family is. A family unit is a social organisation which functions through linking its members closely together. The functions may be procreative, sexual, sociable, economic, emotional. The list is not exhaustive.

Not all families function in the same way. 35' The functional approach of the House of Lords is very similar to the approach outlined in Child and Family36 in defining a family and thus would fit in with the view that the definition of family is moving away from the restrictive notion of the nuclear family. This ruling may have been seen as a break-through for same sex partnerships but in reality the interpretation of family given as emphasised by the majority was only confined to the context of the Rent Act and within that context purposive37.As Rebecca Bailey-Harris states 'it would be quite wrong to treat this decision as binding authority for the interpretation of "family" in other statutes, where it may be given a wider or narrower meaning'38.

So even though a definition of family seemed to at last extend to same sex relationships it seems only to have been 'a response to the specific facts of the case,

without creating a wider precedent'39. In his article, Kenneth Norrie regards the Fitzpatrick case as of being of 'fundamental importance'40 as it is the first time that a same-sex couple has been held to be a family by the House of Lords.He believes that this case 'consigns the concept of a "pretended family relationship" to the dustbin of history'41 and along with other decisions in Supreme Courts around the world, this will hopefully prompt a much-needed change. A year after the judgement in Fitzpatrick, the Housing (Scotland) Act 2001 was passed amending the Housing (Scotland) Act 1987 and under section 108 a person in a same-sex relationship can be considered as a member of their partners' family.This move towards same-sex recognition in a family context seems to be gaining more prominence as time goes on and no more so than in the Constitutional Court of South Africa, where Justice Ackermann stated in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs42 gays and lesbians "are capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses"43.

In light of this, it is a fundamental objective of a definition of family to extend to homosexual couples. Though not spouses, same sex couples constitute a family in terms of the mutual support, financial dependence and the sexual and emotional relations shared. The introduction of the Human Rights Act 1998 has allowed citizens by virtue of Article 8 of the European Convention of Human Rights, the right to respect for his private and family life, his

home and his correspondence.In relation to the definition of a family 'the European court and Commission of Human Rights devotes much jurisprudence to defining 'family life' as opposed to "family" per se'44. What constitutes family life is not entirely determined as 'neither (the European Court and Commission of Human Rights) seeks to adopt a comprehensive regional or universal definition of family or family life'45. It has however been noted that 'the concept of the family in the ECHR jurisprudence is very narrow and traditional, albeit with some recognition of relationships outside of marriage, particularly where they are closely assimilated to marriage'46.

A relationship between a mother and a child will always amount to 'family life' but in relation to an unmarried father and his child, the courts will look at a number of factors to determine whether it exists47. It appears that states are afforded a reasonably wide margin of appreciation, allowing them to maintain distinctions in law between the rights and entitlements of married and unmarried fathers, thereby emphasising the privileged state of marriage48. 'Family life is essentially a question of fact rather than of genetics49'. With regard same-sex relationships, the European Commission held in the case of X. nd Y.

v. United Kingdom50 that relationships of that type qualified as 'private life' but did not fall within the scope of the right to respect of 'family life' under Article 8 of the European Convention . The reasoning behind the decision was that the 'European Commission considers that the family merits special protection and therefore the difference in treatment is objectively and reasonably justified51'. Geraldine Van Bueren rejects such a notion and believes that 'the

denial of equality of treatment to non-procreational relationships appears perverse52'.The unwillingness of the European Commission to recognise same-sex relationships as family life may be detrimental to the on going quest to establish equality for all.

However as Norrie observes 'the distinction between "private life" and "family life" in art 8 ECHR is, in any case, less important than the fact that the protection given by the article must be afforded in a non-discriminatory fashion'53. In the fundamental case of Salgueiro da Silva Mouta v Portugal54, the Portuguese court in deciding custody, had made a preference for the heterosexual mother against the homosexual father.The European Court expressly held that sexual orientation fell within art 14 ECHR and thus any person treated differently with no real objective or rational justification for it because of their sexuality could be in breach of the article. This could lead to legally complex consequences within the UK with courts having to interpret phrases like "living together as husband and wife" with reference to whether the Parliament intended to include or to exclude same-sex couples and 'whether an inclusive or an exclusive definition most closely consists with the non-discrimination requirements of the European Convention'55.Given the strong public interest in avoiding discrimination, a reasonable government definition of 'family' would abandon the primacy of the nuclear family, incorporating the diverse rejection of society.

Referring back to Fitzpatrick, Lord Slynn regarded the term family as one that could encompass many different meanings depending on the context and whether it was construed narrowly or widely was dependant on what context it was eventually used in56.This view is echoed by Lynn Wardle who states that in law

' the meaning of family is not unitary'57 and its definition is dependant on legislative intent. If Fitzpatrick marks a much awaited change in public more, can it then be used as a template in which family can be defined? Kenneth Norrie believes that the dicta in the case has clear implications far beyond the Rent Acts58 but as the case was decided by a three to two majority it signals that there is still some adversity towards the subject.In the case a functional approach to defining a family was adopted and in some respects problems could arise by defining a family by what it does. Lord Clyde's dictum defined a family relationship by blood or marriage or a bond of love and affection yet in the case of Carega Properties SA v Sharratt, there was evidence of devotion and commitment but no sexual activity and the heterosexual couple were held not to be a family.

If sexual activity is a requirement in the definition of family discussed in Fitzpatrick then it still would lead to discrimination but this time against long term companions. Again, this moves to eliminate an increased section of society from a definition of family. Having approached the few varying definitions of family encompassed in today's society, it is difficult to conceive one particular conclusion that could command absolute support therein.In order to create a definition that would warrant the acceptance of society, two prominent conflicting issues would have to be balanced; those of tradition and those of the ever increasing recognition of contemporary citizen rights. Society's beliefs and accepted practices are rapidly changing and even though Kenneth Norrie believes 'outmoded bigotries

and prejudices together with the spurious moralities upon which they are based are being jettisoned from the law'59 there is still a great proportion of society who are adverse to change.On analysis of the definitions of family in the latter stages of this investigation, two juxtaposing notions of a family were conveyed.

The first one being described as 'clearly-defined'60 provides for the blood or marriage connections in a family thus promoting the desire to keep the family definition within the realms of marital conduct.