Challenges for Legally Defining a Family

As Herring concludes, ‘the term ‘family’ does not have a fixed meaning.’[1] Law Lords have emphasised the requirement of ‘dependency’,[2] physicians have stated the requirement for ‘sexual intimacy’[3] and philosophers have asserted the requirement of ‘dependent children’[4] for there to be a family. Such requirements are clearly controversial and often disputed. Douglas comments that one of the difficulties in defining a family is the ‘power of the definition’.[5]  Indeed, the definition of a family is a powerful one, which can affect a wide array of people’s lives. However, as will be discussed, the law is seeking to widen the scope of what a family is, and people also have the choice to define it themselves.

It will be discussed that attempting to legally define a family can conflict with other legal systems, namely the EU. It will also be discussed that narrowly defining a family can have negative impacts upon its members, which, in turn, can have a negative impact upon the law. This piece will then go on to discuss the problems that face individuals who identify as a family, but at law, are not. The problems described will be viewed from a feminist perspective and due to wording constraints, other issues will not be discussed at great length.

What is family law?

Family law encompasses, inter alia, issues around children, relationships, the breakdown of those relationships and finances.

Feminists such as Oakley have argued that a family is a ‘conservative institution that preserves social order.’[6] Oakley goes on to say that this conservative institution acts as ‘major site of the subordination of women’[7] which ‘actively denies women opportunities in wider society.’[8]

Considering the Matrimonial Causes Act of 1857, which allowed a husband to divorce their wife, but did not afford the wife the same right,[9] and the criminalisation of marital rape just 30 years ago,[10] It is fair to say that women have been treated subordinately. However, as will be discussed, family law is moving forward toward equality, be that through statute, or through case law. [11]

Confliction and importance

As mentioned above, there is no one accepted definition of family law. This causes issues in, for example, immigration cases. In Huang & Ors v Secretary of State for the Home Department,[12] Mrs. Huang, dependent on her adult daughter, requested indefinite leave to remain in the United Kingdom on familial grounds. The relevant authority at the time was the Immigration Rules (HC 395).[13] Under these Immigration Rules, of which one requirement was for the applicant to be under a certain age, the Secretary of State (SoS) refused the application.[14] Whilst there is no evidence to suggest that the SoS rejected that Mrs. Huang and her daughter were family, we need only look at Huang’s subsequent claim to understand why the search for a definition matters for law, that being potential conflict between UK and EU law.

Mrs. Huang argued that her removal to China would breach her rights under Article 8 European Convention on Human Rights.[15] The adjudicator allowed the appeal on Article 8 grounds, stating that Mrs. Huang did enjoy a substantial family life with her grandchildren and daughter in the UK and removing her would be ‘disproportionate to the legitimate aim of maintaining immigration control.’[16] The adjudicators approach was upheld in the later appeal to the House of Lords.[17]

Whilst this piece acknowledges that Huang is an immigration case and the government has standards of immigration control, it illustrates the conflict between our legislation, i.e. in the immediate case, between the ECHR and the Immigration Rules. One of the functions of family law is to protect families, we can see from Huang, the ECHR has fulfilled that function.

The Government has since proposed a new approach to defining a family regarding immigration. The Refugees (Family Reunion) Bill,[18] defines what a family member is. Notably, the sweeping up provision of ‘any dependent relative not otherwise listed in this subsection.’[19] This suggests that the government is widening the scope of the definition of a family, although, it only applies to either full or half blood relatives.[20]

The SoS appears to have taken a ‘Black Letter’/Doctrinal approach to the Huang case, and this has caused problems in seeking to define a family. This search matters, as we can see from Huang, as the case decided whether Mrs. Huang could live in the UK with her family, and this piece contends, alongside Hoff and Asante, that is important not only for Huang and her family, but also the state.

Academics such as Hoff and Asante have researched the importance of grandparents on both their children and grandchildren. Hoff concludes that grandparents play a ‘vital role’ in supporting their families, for example through emergency childcare and financial support.[21] Asante, advocating the feminist approach, discusses the impact of grandparents involvement in their grandchild’s life, stating that grandparents positively influence the lives of their grandchildren, particularly granddaughters.’[22] Although both above researchers focused solely on biological grandparents, there is nothing to suggest that the same conclusion would not apply to non-biological or step-grandparents.

As has been discussed, there are problems when seeking to define a family. In the above example, the UK’s legal definition has conflicted with Mrs. Huang’s human rights. Although one may argue that Huang is simply an isolated case, it suggests that the government at the time was prioritising immigration control over Article 8.

Furthermore, the Social Justice Policy Groups interim report found that debt and family breakdown results in criminality.[23] Considering this, alongside the findings of both Hoff and Asante, this piece contends that the definition of family given by the government could have possibly contributed to criminality, and therefore impacted upon the law. 

Undocumented

The definition can become even more obscure involving cases of people who are not family in the eyes of the law, for example, cohabiting persons. Cohabitants may appear on the surface to be a family, however, they have not attained the title of family in the eyes of the law due to no formal ceremony. This can cause problems for the law, for instance, upon a family break up or death, as cohabitants are not legally defined as a family for the purposes of intestacy or (much of) property law.

Whilst this piece acknowledges the existence of married and civil partners, due to wording constraints, they will not be discussed at great length. As was stated in Wilkinson v Kitzinger: ‘civil partnership is marriage in all but name.[24] This piece argues that some of the main problems when seeking to define a family, and why it matters, can be found when discussing cohabitants.

According to a bulletin from the Office for National Statistics (ONS), over the last 10 years in the UK, the ‘proportion of families containing a cohabiting couple increased from 15.3% to 18.4%.’[25] The bulletin goes on to state that the rates of marriages are declining, whilst the rates of cohabitation are increasing.[26]

In certain statutes, parliament has given the same rights to spouses as to cohabiting couples. One example is the Family Law Act 1996, which gives cohabitants the same legal rights as spouses (or civil partners) to apply for a non-molestation order.[27] Additionally, recent cases have shown that cohabitants (either same-sex or opposite-sex) can be deemed to be ‘living together as husband and wife’,[28] although, this is only for the purposes of the Rent Act 1977.[29]

As Smart and Stevens summarise, ‘if there is no statutory provision, the law treats an unmarried couple in the same way as it would two strangers.’ [30] For example, as pointed out in Negus v Gordon Charles Bahouse & Anor, a cohabitant does not have an automatic right to inherit any portion of their deceased cohabitants estate under intestacy laws.[31] Although the claimant was ultimately successful in Negus, relying on a proprietary estoppel claim, this piece contends that this is a major problem for our current families and the law. As Papworth points out, in these situations, there is ‘very little protection for the weaker partner, typically the woman, who often has children.’[32]

Although it is possible for the court to establish a resulting, implied, or constructive trust when deciding cases such as Negus,[33] as we can see from Lloyds Bank v Rosset, this can prove difficult. It was held that Mrs Rosset’s (a cohabitant) assistance in renovating the house and caring for the children, was not sufficient to establish a trust.[34] This could leave a ‘stay at home’ cohabitant, in a vulnerable position, and considering that cohabitation rates are increasing, this could potentially impact on vast amounts of women. 

Dunne, advocating the feminist approach to law and families, argues against the decision in Rosset. Dunne suggests that we should ‘recognise and celebrate the value of woman’s traditional areas of work.’ [35] Davies goes further, noting that property, in particular, the home, is connected with ‘relations of power.’[36]

However, Dunne and Davies comments are over a decade old. One third of British working mothers are now the main ‘breadwinners’ in UK households,[37] and only 13% of the public agree that ‘a woman’s job is to look after the home and family’, down from 49% in 1984.[38] From these statistics, we can see that social attitudes are changing and women are becoming more independent. Nevertheless, these statistics have not changed the approach of the law.

This piece suggests that the law is out of step with the current makeup of families within the UK. Government is trying to catch up, for example, through the Cohabitation Rights Bill. The Bill (if approved) would afford cohabiting couples, with either a dependent child or had been living together as a couple for a minimum of three years, certain rights, such as financial redress upon the breakdown of the relationship.[39] Currently, former cohabitants may only apply for an order for financial provision on behalf of their children under Schedule 1 Children Act 1989, however, this can only be exercised until the child is 18 years old.[40]

In Kimber v Kimber, Tyrer J suggested a ‘test’ to decide whether a couple are cohabiting. One of those factors was the ‘opinion of a reasonable person’. [41] Whilst this subjective approach would arguably correctly identify a large proportion of cohabitates, the very fact that the question has got to court suggests that there is a problem with the definition of a family.

In an attempt to avoid such difficulties, cohabitants can make a cohabitation agreement. This is a legally enforceable document that can cover finances, property and assets and arrangements for children etc. Government advertising of the agreement could dispel the myth of the ‘common law marriage’[42] and give cohabitants rights if the relationship does break down, whilst potentially reducing the need for claimants to spend time and money on lengthy court battles. There would still be the court route for those who had not made a cohabitation agreement.

In conclusion, this piece has discussed some of the problems when seeking to define a family. A legal definition can conflict with other sources of law and cause problems for families. A narrow definition, as was the case in Huang, can have negative effects on families, which (as studies show) can have knock on implications for the law due to poverty and crime.

Persons who are not legally defined as family have also been discussed and problems they face, such as finance and property. This can have impacts upon the law due to increased time before the courts and costs of litigation, not to mention the stress upon both the parties and judges involved, which could be dramatically reduced if cohabitation agreements were made.

What is covered by family law has been discussed and as we have seen, the law and social attitudes are moving forward with regards to women. The legal test put forward by Munby J and the Bills discussed in this essay seeks to promote families and acknowledge that what family is for one person, may not be for another.

Bibliography

Bills

• Cohabitation Rights HL Bill (2017-2019) Bill 34 of 2017-19
• Refugees (Family Reunion) HL Bill (2017-2019) Bill 246 57/1

Books

• Archard D, The Family: A Liberal Defence (Palgrave, 2010)
• Davies M, Property (Routledge, 2007)
• Douglas G, An Introduction to Family Law (2nd edn, Clarendon Law Series, 2005)
• Dunne G, Lesbian Lifestyles: Women’s Work and the Politics of Sexuality (Macmillan, 1997)
• Herring J, Family Law (9th edn, Pearson, 2019)
• Eekelaar J, Family Law and Personal Life (OUP, 2012)
• Fineman M, The Autonomy Myth (OUP, 2004)
• Miles J, Mody P and Probert R, Marriage Rites and Rights (Hart Publishing 2016)
• Oakley A, Sex, Gender and Society (Temple Smith Gower, 1972)
• Probert R, The Changing Legal Regulation of Cohabitation (CUP, 2012)
• Smart C and Stevens P, Cohabitation Breakdown: Non-marital Separation (YPS, 2000)

Cases

• Fitzpatrick v Sterling Housing Association [2000] 1 FCR 21
• Ghaidan v Godin-Mendoza [2004] 2 AC 557 (HL)
• Huang and others v Secretary of State for the Home Department [2005] 3 All ER 435
• Huang v Secretary of State for the Home Department [2007] UKHL 11 
• Kimber v Kimber [2000] 1 FLR 232
• Lloyds Bank v Rosset [1991] 1 AC 107
• Negus v Gordon Charles Bahouse & Anor [2007] EWHC 2628 (Ch)
• R v R [1991] UKHL 12
• Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233
• Wilkinson v Kitzinger [2006] EWHC 2022 (Fam)

Journals

• Auchmuty R, ‘Law and the power of feminism: how marriage lost its powers to oppress women’ (2012) Feminist Legal Studies Vol. 20, 71-87
• Bailey-Harris R, ‘Law and the unmarried couple – oppression or liberation?’ (1996) Child and Family Law Quarterly Vol. 8(2)
• Chau P.L and Herring J, ‘Defining, assigning and designing sex’ (2002) International Journal of Law, Policy and the Family Vol. 16
• Deech R, ‘Cohabitation’ (2010) Family Law Vol. 40(39)
• Duncan S, Barlow A and James G, ‘Why don’t they marry? Cohabitation, commitment and DIY marriage’ Child and Family Law Quarterly (2005) Vol. 17(3), 383
• Eekelaar J, ‘Evaluating legal regulation of family behaviour’ (2010) International Journal of Jurisprudence of the Family Vol. 1
• Gardner S, ‘Family property today’ (2008) Law Quarterly Review Vol. 124
• George R, ‘Cohabitants’ property rights: when is fair fair?’ (2012) Cambridge Law Journal Vol. 71
• Heaphy B, ‘Troubling Traditional and Conventional Families? Formalised Same-Sex Couples and ‘The Ordinary’’ (2018) Sociological Research Online Vol. 23(1), 160-176
• Mee J, ‘The limits of proprietary estoppel’ (2009) Child and Family Law Quarterly Vol 21(3)
• Miles J, ‘Property law v family law: resolving the problems of family property’ (2005) Legal Studies Vol. 23(4)
• Noble J and Bithoney W et al., ‘The core content of a generalist curriculum for general internal medicine, family practice, and paediatrics’ (1994) Journal of General Internal Medicine 9 Vol. 10(12)

Legislation

• Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Article 8
• The Children Act 1989
• The Equality Act 2010
• The Family Law Act 1996
• The Law of Property Act 1925
• The Matrimonial Causes Act 1857
• The Rent Act 1977

Websites

• Asante S, ‘Grandmothers' Leadership Roles as Reflected in the Lives of High-Achieving Women: A Qualitative Study of the Impact of Grandmothers on Granddaughters During Their Formative Years’ (Antioch University Repository and Archive, May 2015) accessed 15th January 2020
• Corey G and Stirling A, ‘Who’s breadwinning in Europe?’ (Institute for Public Policy Research, October 2015) accessed 17 January 2020
• House of Commons, ‘Immigration Rules’ (Gov.uk, May 2003) accessed 19 January 2020 paragraph 317(i)(d) and (v)
• National Centre for Social Research, ‘Gender roles: An incomplete Revolution?’ (NatCen, 2013) accessed 17 January 2020
• Office for National Statistics, ‘Families and households in the UK: 2019’ (ONS, 15 November 2019) accessed 15 January 2020
• Papworth J, ‘Why a cohabitation agreement is essential for non-married couples’ (The Guardian, 9 March 2013) accessed 16 January 2020
• Rockliff B, ‘The myth of common law marriage’ (PorterDodson, 16 August 2018) accessed 17 January 2020
• Social Justice Policy Group, ‘Breakdown Britain’ (Centre for Social Justice, 2006) accessed 15 January 2020

Working Papers

• Hoff A, ‘Functional Solidarity between Grandparents and Grandchildren in Germany’ (2007) Oxford Institute of Ageing Working Papers 307 accessed 14th January 2020

---

[1] Johnathan Herring, Family Law (9th edn, Pearson, 2019) p.33

[2] Huang v Secretary of State for the Home Department [2007] UKHL 11 para. 18 (Hereinafter: ‘Huang’).

[3] Jarrett Noble and William Bithoney et al. ‘The core content of a generalist curriculum for general internal medicine, family practice, and paediatrics’ [1994] Journal of General Internal Medicine 9 Vol. 10(12) p. 704

[4] David Archard, The Family: A Liberal Defence (Palgrave, 2010)

[5] Gillian Douglas, An Introduction to Family Law (2nd edn, Clarendon Law Series, 2005) p.3

[6] Anne Oakley, Sex, Gender and Society (Temple Smith Gower, 1972)

[7] Anne Oakley, Sex, Gender and Society (Temple Smith Gower, 1972)

[8] Anne Oakley, Sex, Gender and Society (Temple Smith Gower, 1972)

[9] The Matrimonial Causes Act 1857

[10] R v R [1991] UKHL 12

[11] The Equality Act 2010; Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, para 24

[12] Huang and others v Secretary of State for the Home Department [2005] 3 All ER 435

[13] House of Commons, ‘Immigration Rules’ (Gov.uk, May 2003) accessed 19 January 2020 paragraph 317(i)(d) and (v) (Hereinafter: ‘the Immigration Rules’)

[14] House of Commons, ‘Immigration Rules’ (Gov.uk, May 2003) accessed 19 January 2020 paragraph 317(i)(d)

[15] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Article 8

[16] Huang and others v Secretary of State for the Home Department [2005] 3 All ER 435 at 443

[17] Huang v Secretary of State for the Home Department [2007] UKHL 11

[18] Refugees (Family Reunion) HL Bill (2017-2019) Bill 246 57/1

[19] Refugees (Family Reunion) HL Bill (2017-2019) Bill 246 57/1 s.1 (2)(i)

[20] Refugees (Family Reunion) HL Bill (2017-2019) Bill 246 57/1 s. 1(4)

[21] Andreas Hof, ‘Functional Solidarity between Grandparents and Grandchildren in Germany’ (2007) Oxford Institute of Ageing Working Papers 307 < https://bit.ly/30Q6y9v> accessed 14th January 2020

[22] Sylvia Asante, ‘Grandmothers' Leadership Roles as Reflected in the Lives of High-Achieving Women: A Qualitative Study of the Impact of Grandmothers on Granddaughters During Their Formative Years’ (Antioch University Repository and Archive, May 2015) accessed 15th January 2020

[23] Social Justice Policy Group, ‘Breakdown Britain’ (Centre for Social Justice, 2006) accessed 15 January 2020

[24] Wilkinson v Kitzinger [2006] EWHC 2022 (Fam) para. 88

[25] Office for National Statistics, ‘Families and households in the UK: 2019’ (ONS, 15 November 2019) accessed 15 January 2020

[26] Office for National Statistics, ‘Families and households in the UK: 2019’ (ONS, 15 November 2019) accessed 15 January 2020

[27] The Family Law Act 1996

[28] Fitzpatrick v Sterling Housing Association [2000] 1 FCR 21; Ghaidan v Godin-Mendoza [2004] 2 AC 557 (HL)

[29] The Rent Act 1977

[30] Carol Smart and Pippa Stevens, Cohabitation Breakdown: Non-marital Separation (YPS, 2000)

[31] Negus v Gordon Charles Bahouse & Anor [2007] EWHC 2628 (Ch) (hereinafter: ‘Negus’)

[32] Jill Papworth, ‘Why a cohabitation agreement is essential for non-married couples’ (The Guardian, 9 March 2013) accessed 16 January 2020

[33] The Law of Property Act 1925, s 53(2)

[34] Lloyds Bank v Rosset [1991] 1 AC 107

[35] Gillian Dunne, Lesbian Lifestyles: Women’s Work and the Politics of Sexuality (Macmillan, 1997)

[36] Margaret Davies, Property (Routledge, 2007)

[37] Giselle Cory and Alfie Stirling, ‘Who’s breadwinning in Europe?’ (Institute for Public Policy Research, October 2015) accessed 17 January 2020

[38] National Centre for Social Research, ‘Gender roles: An incomplete Revolution?’ (NatCen, 2013) accessed 17 January 2020

[39] Cohabitation Rights HL Bill (2017-2019) Bill 34 of 2017-19

[40] The Children Act 1989, Sch. 1 s 5(a)

[41] Kimber v Kimber [2000] 1 FLR 232

[42] Beverley Rockliff, ‘The myth of common law marriage’ (PorterDodson, 16 August 2018) accessed 17 January 2020