Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-25T08:04:48.007Z Has data issue: false hasContentIssue false
  • English
  • Français

Winner of the SLS Annual Conference Best Paper Prize 2015: Towards an understanding of the basis of obligation and commitment in family law

Published online by Cambridge University Press:  02 January 2018

Gillian Douglas
Gillian Douglas*
Affiliation:
Cardiff University
*
Gillian Douglas, Professor of Law, Cardiff School of Law and Politics, Cardiff University, Law Building, Museum Avenue, Cardiff CF10 3AX, UK. Email: [email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

Much family law scholarship in recent years has been focused on the recognition of different types of family relationship. Often, the rationale for the grant of rights and duties to new forms of relationship is said to be because the parties have shown commitment, or the same degree of commitment, as those in formally recognised unions, such as marriage. But there has been relatively little consideration of why or how commitment can provide an adequate rationale for the imposition of legal consequences, in particular, legal obligations, especially when such commitment may be lacking on the part of one of the parties, or comes to an end. This paper explores the meanings of obligation and commitment within the family and questions whether commitment provides a necessary or sufficient justification for the imposition of legal obligations in family relationships.

Type
Research Article
Information
Legal Studies , Volume 36 , Issue 1 , March 2016 , pp. 1 - 19
Copyright
Copyright © Society of Legal Scholars 2016

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

I am very grateful to the Leverhulme Trust for funding the Major Research Fellowship that enabled the research for this paper to be undertaken. I would also like to thank colleagues who attended the Family Law Section at the SLS 2015 Annual Conference in York for their helpful comments on this paper.

References

1. Farquhar, G The Beaux’ Stratagem (1707) Act III, Sc 3.CrossRefGoogle Scholar

2. But compare Estin, A ‘Love and obligation: family law and the romance of economics’ (1995) 36 (3) Wm & Mary L Rev 989;Google Scholar and Scott, E ‘Social norms and the legal regulation of marriage’ (2000) 86 Va L Rev 1901, 1923.CrossRefGoogle Scholar

3. On this issue, see Eekelaar, J ‘Self-restraint: social norms, individualism and the family’ (2012) Theoret Inq L 75.Google Scholar

4. There was no duty at common law to support even a legitimate child: Sir W Blackstone Commentaries on the Laws of England (1765–1769) bk I, ch 16, ‘Of parent and child’; Royal Commission on Marriage and Divorce Report 1951–1955 Cmd 9678, 1956, para 560.

5. Baroness Hale in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 [2006] 2 AC 618 at [144].

6. By contrast, the dictionary definition of ‘responsibility’ is ‘having the ability or authority to act or decide’ or ‘accountability’. The focus is on who takes decisions rather than the binding nature of the onus placed on the decision maker. For consideration of parental responsibility, see Eekelaar, J ‘Parental responsibility: state of nature or nature of the state?’ [1991] J Soc Welfare & Fam L 37.CrossRefGoogle Scholar

7. Hart, H The Concept of Law (Oxford: Oxford University Press, 1961) pp 55 and 84.Google Scholar But for the view that people ‘exert social pressure on others to comply because of the existence of the obligation’ rather than the other way round, see Smith, JC Legal Obligation (London: The Athlone Press, 1976) pp 32–33.Google ScholarPubMed

8. Hart regarded ‘obligation’ and ‘duty’ as synonymous (ibid, p 238), although their usage may vary according to context, with ‘obligation’ commonly used in relation to contract, ‘duty’ in relation to tort. In his commentary on Hart, H.L.A. Hart (Stanford, CA: Stanford University Press, 1981) pp 59–60, Neil MacCormick argued that they are distinct, with obligation flowing from a relationship (eg parent and child) while duty relates to a position or role. This is a subtle distinction – does a parent have a relationship, or a role? MacCormick recognized that ‘in their vague and general use’ they are more or less interchangeable, and they are used thus in this paper.Google Scholar

9. Hart above n 7, p 85.

10. Ibid, p 114.

11. There is, of course, an enormous literature: see in particular, MacCormick, above n 8, and Bayles, M Hart's Legal Philosophy: An Evaluation (Dordrecht: Kluwer Academic, 1992).CrossRefGoogle Scholar For recent discussion of sanctions and coercion, see Schauer, F ‘Was Austin right after all? On the role of sanctions in a theory of law’ (2010) 23(1) Ratio Juris 1;CrossRefGoogle Scholar and E Yankah ‘The force of law: the role of coercion in legal norms’ (2007–2008) 42 U Rich L Rev 1197. On the internal aspect of rules, see Gardner, J ‘Nearly natural law’ (2007) 52 Am J Jurisp 1;CrossRefGoogle Scholar and Delacroix, S ‘You'd better be committed: legal norms and normativity’ (2009) 54 Am J Jurisp 117.CrossRefGoogle Scholar

12. MacCormick, above n 8, p 59.

13. Maclean, M and Eekelaar, J The Parental Obligation: A Study of Parenthood Across the Households (Oxford: Hart Publishing, 1997) p 6.Google Scholar See also Ferguson, L ‘Family, social inequalities, and the persuasive force of interpersonal obligation’ (2008) 22(1) int J Law, Pol & Fam 61.CrossRefGoogle Scholar

14. R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48 [2006] 1 AC 42.

15. Including civil partners, unless the context requires otherwise.

16. Husband and wife were one person in law, and the wife could not own property in her own name. There was a presumption that she was acting as his agent if she obtained articles of a domestic nature, and she had an ‘agency of necessity’ under which she could pledge the husband's credit to meet the cost of necessaries supplied to her while living apart from the husband with just cause: Morrison, C ‘Contract’ in Graveson, R and Crane, F (eds) A Century of Family Law (London : Sweet & Maxwell, 1957) pp 127–133.Google Scholar

17. See Stone, L Broken Lives: Separation and Divorce in England 1660–1857 (Oxford: Oxford University Press, 1993);CrossRefGoogle Scholar Bailey, J Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (Cambridge: Cambridge University Press, 2003);CrossRefGoogle Scholar Barton, J ‘The enforcement of financial provisions’ in Graveson and Crane (eds), above n 16, pp 352–355.Google Scholar

18. See also Fineman, M The Autonomy Myth: A Theory of Dependency (New York: The New Press, 2004) pp 98, 297.Google Scholar

19. For the view that divorced wives should expect to work once their children are aged around seven and have no expectation of long-term maintenance, see Wright v Wright [2015] EWCA Civ 201.

20. Act for the Relief of the Poor 1601, s 7. For discussion of this and earlier Elizabethan legislation, see Wikeley, N Child Support: Law and Policy (Oxford: Hart Publishing, 2006) pp 40–42.Google Scholar

21. See Wikeley, N ‘The strange death of the liable relative rule’ [2008] J Soc Welfare & Fam L 339. For discussion of the Poor Law and the household means test of the 1930s,Google Scholar see Finch, J Family Obligations and Social Change (Oxford: Polity Press, 1989) chs 2, 4.Google Scholar

22. Now see Social Security Administration Act 1992 s 78(6), prospectively repealed by the Welfare Reform Act 2012, Sch 14 Pt 8.

23. Social Security Administration Act 1992 s 106.

24. Wikeley above n 21, p 346.

25. Schedule 7, Pt 1. Oddly, it remains a criminal offence persistently to refuse or neglect to maintain oneself or a person whom one is liable to support (which is now limited to one's spouse or civil partner and not one's children): Social Security Administration Act 1992 s 105.

26. M Garrison ‘Is consent necessary? An evaluation of the emerging law of cohabitant obligation’ (2004–2005) 52 UCLA L Rev 815 at 832ff argues that the obligation on a liable relative to reimburse the state is a public obligation based on participation in civil society, but this seems to ignore the crucial fact that only certain relatives are placed under the duty, presumably precisely because of their relationship with the benefit recipient.

27. Matrimonial and Family Proceedings Act 1984, amending Matrimonial Causes Act 1973 s 25 and inserting s 25A.

28. For judicial consideration of the issue, see the judgment of Mostyn J in SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam) [2015] 2 FLR 1124 [25]–[31].

29. Granatino v Radmacher [2010] UKSC 42 [2011] 1 AC 534.

30. Matrimonial Causes Act 1973, ss 25(2)(b) and 25A(1).

31. Regan, M Alone Together: Law and the Meanings of Marriage (Oxford: Oxford University Press, 1999) pp 188, 190.Google Scholar

32. [2006] UKHL 24 [2006] 2 AC 618.

33. At [9]–[11].

34. [2007] EWCA 760 [2008] 1 FLR 158 at [32].

35. [2015] UKSC 14 [2015] 1 WLR 1228 at [33].

36. Cf Scotland. The Family Law (Scotland) Act 1985 ss 1, 2 permit a child to bring an action for aliment against the parent (or step-parent) and the Child Support Act 1991 s 7 permits a child aged 12 or over to seek a maintenance calculation against the non-resident parent where no such application has been brought by the person with care or non-resident parent.

37. The issue of whether parents owe a financial obligation to each other qua parents is not discussed here. For a convincing argument that they do, see A Blecher-Prigat ‘The costs of raising children: towards a theory of financial obligations between co-parents’ (2012) 13 Theoret Inq L 179. For consideration of the varying potential obligations to the child, other parent or the state, see M Garrison ‘Autonomy or community: an evaluation of two models of parental obligation’ (1998) 86 Cal L Rev 41.

38. Contrary to the view of Baroness Hale, who argued that the father's ‘common law obligation’ has never been abolished, in R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48 [2006] 1 AC 42 at [69].

39. Described by Wikeley, above n 20, as conceptually distinct from the Poor Law, since the illegitimate child was a filius nullius: p 47.

40. M Finer and OR McGregor ‘The history of the obligation to maintain’ in the Finer Committee Report of the Committee on One-Parent Families Cmnd 5629, 1974, vol 2, App 5; N Wikeley, above n 20, ch 2.

41. For authoritative discussion of the genesis and operation of the Act up to 2006, see Wikeley, above n 20; for a summary of subsequent developments, see Lowe, N and Douglas, G Bromley's Family Law (London: Butterworths, 11th edn, 2015) pp 800–825.CrossRefGoogle Scholar

42. Child Support Act 1991 s 3(1)(2).

43. Where the child lives in a shared care arrangement, the amount of child support may be reduced and where the time spent is equal, there is no liability under the Act: Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677) reg 50.

44. Department of Social Security (DSS) Children Come First: The Government's Proposals on the Maintenance of Children Cm 1264, October 1990, vol 2, p i.

45. Child Support Act 1991 s 6. Failure to cooperate without showing good cause would result in a reduction to her benefit payment: s 46.

46. Sir David Henshaw Recovering Child Support: Routes to Responsibility Cm 6894, July 2006, p 4.

47. Ibid, pp 18, 22. The provisions were repealed by the Child Maintenance and Other Payments Act 2008 s 15.

48. For the view that the Act did succeed in bringing about a shift in acceptance of the obligation, see Fehlberg, B and Maclean, M ‘Child support policy in Australia and the United Kingdom: changing priorities but a similar tough deal for children?’ (2009) 23(1) Int J Law, Pol & Fam 1 at p 19.CrossRefGoogle Scholar

49. A consequential amendment to the law amended the ‘liable relative’ rule so as to exclude reference to a parent being liable to support his or her children. For a critique of the change, see Wikeley, above n 21, p 346.

50. Department of Work and Pensions (DWP) Strengthening Families, Promoting Parental Responsibility: The Future of Child Maintenance Cm 7990, January 2011, p 10.

51. The major study of kinship arrangements is that by J Finch and J Mason Negotiating Family Responsibilities (London: Routledge, 1993) discussed below, but similar evidence is available in the child support context: see N Wikeley et al National Survey of Child Support Agency Clients, DWP Research Report No 152 (2001).

52. Bryson, C et al Kids Aren't Free: The Child Maintenance Arrangements of Single Parents on Benefit in 2012 (London: Nuffield Foundation, 2013).Google Scholar

53. This is a small amount in comparison to taking legal proceedings, but significant for parents dependent upon subsistence-level benefits and tax credits.

54. Section 8(1)(3).

55. [2005] UKHL 48 [2006] 1 AC 42.

56. Ibid, at [33]–[34].

57. At [69]–[74]. For a critique of the majority and support for Baroness Hale, see Wikeley, N ‘A duty but not a right: child support after R (Kehoe) v Secretary of State for Work and Pensions ’ [2006] Child & Fam L Q 287.Google Scholar

58. Kehoe v United Kingdom [2008] 2 FLR 1014.

59. Garrison, above n 26, p 834.

60. As Wikeley, above n 20, pp 66, 279–280, points out, the position in Scotland is different, with a clear statutory obligation to the child in both private and child support law.

61. The detailed provisions are discussed in N Lowe and G Douglas, above n 41, pp 820–824.

62. Including, for these purposes, the Civil Partnership Act 2004.

63. Section 27. The equivalent provision under the Civil Partnership Ac 2004 is Sch 5 Pt 9 para 39(1). Similar provisions are contained in the Domestic Proceedings and Magistrates’ Courts Act 1978.

64. A ‘child of the family’ is defined as (a) a child of both spouses or civil partners; and (b) any other child … who has been treated by both of those parties as a child of the family: Matrimonial Causes Act 1973 s 52, as amended.

65. The duty is placed on the other party to the marriage, constituting an exception to the usual principle that only a legal parent has the liability to maintain, but the court must have regard to whether there is a parent available to support the child in the first instance: 1973 Act s 27(3A), 25(4); 1978 Act s 3(3), 7(5).

66. When the child support regime was first introduced, the formula used to calculate the amount to be paid also included elements taking account of the financial position of the parent with care, suggesting the same approach, but subsequently, this was abandoned as part of the attempt to simplify the formula.

67. 1978 Act s 2(1)(c)(d); 1973 Act s 27(6)(d)(e)(f).

68. 1973 Act s 27(6A); 1978 Act s 20(12)(b). Section 20A(1) also allows the child to apply for an order made by the magistrates but which has ceased to have effect because he or she has reached the age of 16 to be revived.

69. Family Law Reform Act 1987 ss 12–17.

70. Children Act 1989 Sch 1 para 16(2). As under the matrimonial jurisdictions, the step-parent must be, or have been, married to or in a civil partnership with, a parent of the child and have treated the child as a child of the family.

71. Sch 1 para 4.

72. J Finch and J Mason, above n 51. For a critique, see Miller, D ‘What is a relationship? Is kinship negotiated experience?’ (2007) 72(4) Ethnos 535.CrossRefGoogle Scholar

73. Finch and Mason, above n 51, p 166.

74. Ibid.

75. Ibid, pp 18–19. Finch, above n 21, pp 154–177, elucidates a further set of guidelines drawing on previous research literature, including the relationship between the parties in terms of genealogy; the quality of their relationship; and the extent of prior mutual assistance.

76. Ibid, p 60.

77. Ibid, pp 61–62.

78. It also endorses the view of Regan, above n 31, pp 26, 190, that obligations between spouses grow ‘from the accretion of experience in a relationship of interdependence’. They ‘make a host of subtle contributions and sacrifices in reliance on continuation of a shared life together’.

79. Maclean, M and Eekelaar, J ‘Marriage and the moral bases of personal relationships’ (2004) 31(4) J L Soc'y 510.Google Scholar

80. E Scott, above n 2, p 1905.

81. Barlow, A et al Cohabitation, Marriage and the Law (Oxford: Hart Publishing, 2005) p 1.Google Scholar This statement is not in conflict with that of Scott – Barlow et al go on to argue that marriage ‘self-evidently cannot be seen any longer as a commitment for life …’.

82. Section 36(6)(e), amended by s 2(2) of the Domestic Violence, Crime and Victims Act 2004.

83. Section 41.

84. Re M (handicapped child: parental responsibility) [2001] 3 FCR 454 at 479b.

85. Re H (Minors)(Local Authority: Parental Rights)(No 3) [1991] Fam 151, 158; Re S (Parental Responsibility) [1995] 2 FLR 648 at 652–657; Re M (Parental Responsibility Order) [2013] EWCA Civ 969 [2014] 1 FLR 339 at [15].

86. Lord Chancellor's Department Consultation Paper on the Procedure for the Determination of Paternity and the Law on Parental Responsibility for Unmarried Fathers (1998) p 59.

87. Department of Work and Pensions (DWP) Joint Birth Registration: Recording Responsibility, June 2008, Cm 7293 at para 8. The duty was included in the Births and Deaths Registration Act 1953 s 2A, inserted by Sch 6 para 4 to the Welfare Reform Act 2009, but has not been brought into force.

88. See, for example, the report from the Centre for Social Justice, Fully Committed? How a Government Could Reverse Family Breakdown (2014), which at no point explains what it means by ‘committed’ relationships.

89. Giddens, A Modernity and Self-Identity: Self and Society in the Late Modern Age (Cambridge: Polity Press, 1991) p 6.Google Scholar See also Giddens, A The Transformation of Intimacy: Sexuality, Love and Eroticism in Modern Societies (Cambridge: Polity Press, 1992) p 58.Google Scholar

90. Giddens, above n 89, Modernity, pp 92–93.

91. See, too, the studies by Lewis, J The End of Marriage? Individualism and Intimate Relations (Cheltenham: Edward Elgar, 2001) andGoogle Scholar Smart, C and Stevens, P Cohabitation Breakdown (London: Family Policy Studies Centre, for the Joseph Rowntree Foundation, 2000).Google Scholar

92. Above n 51, p 96.

93. Ibid, p 94.

94. This work is drawn on in particular by Lewis, above n 91 and Barlow et al, above n 81.

95. Stanley, S and Markman, H ‘Assessing commitment in personal relationships’ (1992) 54(3) J Marriage & Fam 595.CrossRefGoogle Scholar

96. Subsequently tested empirically: see Johnson, M et al ‘The tripartite nature of marital commitment: personal, moral and structural reasons to stay married’ (1999) 61(1) J Marriage & Fam 160, 161.CrossRefGoogle Scholar

97. Adams, JM and Jones, WH ‘Conceptualization of marital commitment: an integrative analysis’ (1997) 72(5) J Pers & Soc Psychol 1177 at 1180.CrossRefGoogle Scholar

98. See Smith, above n 7, who argues that there are two ‘obligation-creating practices’ – promising (contracting) and reciprocity (indebtedness): p 73. As shown below, there must be more than these – the parent–child relationship does not readily fit within either mechanism.

99. Although these factors could be relevant to private negotiation or to a court-based determination of liability.

100. See also Giddens, above n 89, Modernity, p 98; Fineman, above n 18, pp 139, 304; Garrison, above n 26, pp 826, 828.

101. See eg R Tennant et al Separating from Cohabitation: Making Arrangements for Finances and Parenting, DCA Research Series 7/06 (2006); Douglas, G et al A Failure of Trust: Resolving Property Issues on Cohabitation Breakdown (Bristol: School of Law/Cardiff: Cardiff Law School, 2007).Google Scholar

102. As Smith, above n 7, suggests, the basis of such restitution is the broad principle of reciprocity: p 64.

103. As in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 [2006] 2 AC 618. See Law Commission (Law Com No 307) Cohabitation: The Financial Consequences of Relationship Breakdown (2007).

104. Eekelaar, J ‘Are parents morally obliged to care for their children?’ (1991) 11(3) Oxford J Legal Stud 340.CrossRefGoogle Scholar See also Ferguson, above n 13; Wikeley, above, n 20, p 36; Altman, S ‘A theory of child support’ (2003) 17(2) int J Law, Pol & Fam 173.CrossRefGoogle Scholar

105. Garrison, above n 26, p 828.

106. See eg the Divorce (Financial Provision) Bill 2015–16 and note the criticism of the lack of judicial discretion under Scottish law by Lord Hope in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 [2006] 2 AC 618, [101]–[121].

107. See eg M Fineman , above, n 18; Herring, J Caring and the Law (Oxford: Hart Publishing, 2013).Google Scholar