Family Law for Family Life: Rethinking the Boundaries of Family Law

1. Introduction

The goal of this article is to convince readers that family law should be for family life, not just for family crisis, and that thinking of it in this way could refresh the means through which it is practised, making it more relevant and accessible. The impetus for it derives from a conviction that the zeitgeist of family justice discourse has become too narrow and pessimistic. Section 1 makes the case for this assertion, observing that family law has long been theorized as having multiple functions and a broad scope encompassing the formation, nature, and ending of family relationships, and a valuable norm-signalling function, as well as substantive rules. However, it also observes that attention in recent decades has been concentrated on how family law relates to family breakdown and conflict. This context has always been important and has become more so as policy reform has eroded access to formal family justice processes. Legislation, court procedure, and legal aid funding have evolved in concert to nudge people towards private agreement and to delegalize family disputes.^[1] For many, this means a struggle to access support in the face of abuse, power imbalances, entrenched conflict, or litigation not of their choosing.

The problem certainly merits ongoing concern. But family law’s full potential to support family relationships cannot be realized if concern with its function as a dispute resolution intervention becomes a fixation. Indeed, aligning family law practice and inquiry too closely to the direction of policy seems likely to couple it hopelessly to an agenda intent on overseeing its decline. This article calls for us to widen the framing of family law’s utility and relevance. Ongoing assertions of the importance of family law-informed dispute resolution could be supplemented by demonstrating that family law rules and norms can be relevant and useful to people during their ongoing family lives, regardless of whether they ever experience a justiciable family dispute.

Section 2 therefore makes the case for re-engaging with family law’s broader functions to build a ‘family law for family life’ agenda. It offers three examples of relationships that could benefit, arguing that it is logical and fair that people should understand to some degree the legal consequences of their most important relationships. The section also engages with two critiques: first, that family life is unlikely to change in response to efforts to signal law’s relevance to it (the effectiveness critique); second, that the impact of family law can be negative as well as positive, and we would not want all elements of it more widely adhered to (the contestable norms critique). The stance adopted here is that both critiques flag issues worth grappling with, but they do not negate the case for family law for family life.

In Section 3, the article considers how a family law for family life agenda could challenge us to rethink how family law is practised and communicated. It suggests that it would demand a partial reinvention of the modalities of family law. This would yield tangible benefits that could reinvigorate the field, ensuring its ongoing relevance irrespective of the direction of future family law policy and potentially generating incidental improvements to the support available for resolving family disputes.

2. The Boundaries of Family Law

This section examines how the remit of family law—what it does and what it is for—has been conceptualized in scholarship to date, along with policy developments that have contracted its reach in ways that appear, but need not be, existential.

A. The Remit of Family Law

Clearly family law regulates family relationships. But numerous scholars have drilled down into the nature of that regulation over the years, revealing at least four distinct functions.

First, family law can be said to define or constitute relationships, both implicitly—through the validation that comes with certain forms of regulation—and expressly—by designating which relationships qualify as, for example, marriages and parent/child relationships.^[2] Secondly, as John Eekelaar demonstrated in 1979, family law has a protective function^[3]; it offers routes to relief for those who suffer harm within the private sphere of their family relationships, most notably in the case of domestic and child abuse, but also through broader efforts to guard against exploitation of the vulnerable.^[4] Eekelaar also outlined a third function of family law: to facilitate adjustments on family breakdown, by setting rules and procedures for dissolving marriages and civil partnerships, and for settling post-breakdown arrangements for finance, property, and child care.^[5] We might term this the remedial function of family law.

Finally, family law has an expressive, or normative, function. For the purposes of this article, this warrants closer attention. In examining ‘what family law is for’, Alison Diduck argued that the norms family law expresses are as significant as its formal legal rules and procedures.^[6] To understand family law merely with reference to what it does in a descriptive or positivist sense, would be to miss a substantial part of its nature and power. For it does not define families, or establish protective regimes for abuse, or lay down rules for adjustment of relationships on breakdown, in a vacuum. Rather, the way in which it does these things transmits messages about the qualitative nature of family relationships and how people are supposed to behave within them. As Diduck says, family law,

Signposts what is thought to be the legitimate public point of view. A judge’s discursive choices reflect social and moral values and offer normative guidance to family members and to society.^[7]

Furthermore, she asserts that family law speaks to how people should behave during relationships, not just at their end. Noting that, ‘ancillary relief law is about the nature and responsibilities of marriage as much as it is about divorce’,^[8] she demonstrates this by analysing the jurisprudence of financial remedies on divorce over time, observing shifts in the framing of judgments. Once, they projected a vision of marriage in which breadwinners had a duty to provide for women and children as dependents and restricted financial provision on divorce to meeting the needs of those dependents. More recently, they talk of marriage as a ‘partnership of equals’ in which breadwinner and homemaker contributions are equally valued as part of a collaborative endeavour. In the spirit of mutuality and sharing that now characterizes the marital relationship, the financial fruits of the relationship are to be shared at its end.^[9] This shift has had material consequences for the outcomes of individual cases, but it also says something broader about what a ‘good’ version of marriage looks like.

The law on parental responsibility—the power and responsibility to take decisions and actions in connection with the upbringing of a child—^[10] further illustrates this expressive function of family law in action. The extension of parental responsibility to almost all unmarried fathers asserts the importance of fathers in families and communicates the policy imperative of all parents assuming responsibility for their offspring.^[11] The legal rule that parents may exercise their responsibility unilaterally confirms the equal status of both parents in the eyes of the law.^[12] Yet, thanks to a series of judicial decisions, in the pragmatic spirit of respectful and collaborative parenting, parents are also expected to communicate and co-operate on certain key decisions.^[13] These rules say much about how parenting ought to be shared and managed during a child’s minority.

B. The Value of Family Law’s Expressive Function

Scholars have also emphasized the intrinsic importance of family law’s expressive function. Noting that ‘The family is still one of the most gendered of social and legal institutions’,^[14] Diduck reminds us that many family relationships engender vulnerability as a result of the inter-dependency they incur.^[15] This can erode the possibility of autonomous, unfettered decision-making in many areas of life, producing long-term consequences. There is, she says, a significant role for family law to play in ensuring that gendered disadvantage produced through private family relationships can be challenged and corrected:

Much of family law is thus about providing justice in determining the consequences of relations between gendered subjects in the privacy of the home. But in this way it is also about determining the consequences of those relations in public civil and political society.^[16]

In other words, it is not just about making sure gendered disadvantage in family relationships can be challenged in individual cases. It is also about sending the broader message that it should be challenged because equitable treatment of women—in family relationships and beyond—is an important value in society:

Family law is about determining what it means, both privately and publicly, to be a mother, father, son, daughter, partner, husband or wife. These meanings are as important socially as they are to the individuals concerned.^[17]

This view is echoed by Eekelaar, who has written of the essential role of family law as a general corrective against power within the community of family relationships.^[18] Family Law for him provides an indispensable means by which individuals can avoid their needs being subjugated to the more powerful party in family relationships, whether that manifests through the relative economic disadvantage of wives to husbands in marriages, experiences of domestic abuse or child neglect, or clashes over the upbringing, financial support or care of children. Certain standards of behaviour are seen as expected in private to ensure the dignity and freedom of those who might otherwise be oppressed through them. In this way family law sets parameters and limits on how power should be exercised within private relationships and aims to restrict exploitation of less powerful parties within and after relationships.^[19]

In summary, some of the most influential analyses of family law frame it as a corrective against power and hegemony on two levels in a way that is reminiscent of the ‘micro and macro levels’ of social justice identified by other theorists.^[20] First, by providing just outcomes on the micro level of individual family disputes and difficulties, and secondly by macro-level signalling about how society expects us to run our family lives. For family law to work on either of these levels, however, it is imperative that people know something about it. Otherwise, individuals will not be empowered to access legal support when they need it and general relationship norms and expectations can never be influenced. As Diduck says,

we also must provide a system with values and transparently developed principles that are made public and speak to those families who are not even in dispute at all and who are simply going about the business of ‘doing family’.^[21]

This view is foundational to the core message of this article—that family law should be oriented as much towards family life as it is towards family crisis.

At this point I would like to consider another account of family law operating as a signalling device. It offers a slightly different take on the utility of the expressive function. It also helpfully examines how norm signalling occurs, drawing conclusions that underpin my argument that the potentially expansive reach of family law has been circumscribed because its value for family life has not been realized.

In a highly influential account of ‘The Normal Chaos of Family Law’, John Dewar argued that family law ‘radiates messages’, going so far as to assert that this is the primary means through which it operates in modern times.^[22] Family law’s modern purpose, he said, ‘is to set the tone for private ordering, or alternative dispute resolution, rather than to confer measurable entitlements that one might expect to see enforced in a court room’.^[23]

Dewar’s account explored how family law’s norms are communicated to ordinary people and its signalling function thereby realized. He concluded that family law is made coherent at any given time through ‘stabilizing practices of interpretation’, brought to bear in the advice and decisions of lawyers and judges.^[24] The norms that these professionals deploy in applying the law day-to-day bring consistency and meaning to an area of law that can otherwise be difficult to explain, providing the ballast needed for it to regulate family disputes. Furthermore, because of the instability inherent in the discretionary nature of many core family law rules, in Dewar’s account the norms transmitted through law-in-practice effectively come to constitute the rules; family law is not just optimized when it serves as a signalling device for relationships, but that signalling is the essence of its existence.

In this account, family law’s signalling function informs the resolution of specific disputes. It is confined to operating at the micro level, through formal legal advice and process, rather than shaping broader behaviour in the way that other scholars have framed its potential. Dewar’s analysis has a seductively powerful explanatory force. But I will illustrate in the next section that its appeal has served to underpin an unduly narrow framing of family law, which in turn has contributed to the belief that the field is now facing an existential crisis.

C. The Privatization of Family Dispute Resolution and the Shrinking of the Boundaries of Family Law

The consensus that family law norms are substantively important at both the collective and individual level is one reason why certain family law and policy events of recent decades have prompted alarm. In particular, the long-standing drive to divert private family disputes away from courts and lawyers, ostensibly because law is thought to exacerbate conflict and be ill-suited to the emotional, intensely personal nature of family disputes.^[25] This has generated a strong settlement culture and a push towards mediation as an alternative to legal proceedings.^[26] These trends are embedded and materially advanced through Family Procedure Rules (FPR).^[27] The paradoxical result is that family law procedure has been engineered to divert individuals away from the law,^[28] and family justice policy has characterized law and lawyers as ‘anathema’ to family problems.^[29]

Against this backdrop, family justice was low hanging fruit when the Government sought to dramatically curtail this country’s legal aid budget. ‘LASPO’, or the Legal Sentencing and Punishment of Offenders Act 2012, withdrew legal aid for almost all private family disputes, while continuing to make it available for family mediation.^[30] The move has had a substantial and lamentable impact on the range of individuals able to access professional legal advice for a family dispute. Post-LASPO, only 40 per cent of those reporting that they have experienced a family justice issue report that they received advice from a lawyer.^[31] Only a minority of those who experience a family dispute will use family courts but, of those who do, both parties now have legal representation in fewer than 20 per cent of cases.^[32]

These figures tell us that family law’s important rules and norms are retreating from view for a majority of those who might benefit from them while resolving a family dispute. Indeed, such is the scale and persistence of the push towards mediators, or completely private negotiation, that the future existence of the field of family law and family justice is seen to be under threat. As one leading family law textbook puts it: ‘such has been the dramatic withdrawal of “law” from family dispute resolution, that serious questions are now raised about whether the state has abandoned its normative and regulatory aims within this sphere’.^[33] Eekelaar meanwhile, effectively implied the field’s demise post-LASPO by quipping ominously that, ‘It is probably too melodramatic to announce the death of family justice in England and Wales’.^[34]

Without diminishing the significance of removing access to dispute resolution guided by informed application of family law norms, I suggest that the sense of catastrophe exhibited in these views captures a problem with the way we draw the boundaries of family law. Dewar’s account of how family law’s norms are shaped and transmitted, considered above, illustrates how a preoccupation with legal process and lawyers has come to circumscribe our conceptions of family law. His explanation of how his espoused central goal of modern family law—norm transmission—manifests depends entirely on the use of lawyers and other legal system professionals. From that starting point, lawyers become a sine qua non of family law. Ergo, the functionality of family law collapses if lawyers not only cease to play a central role, but increasingly play no role at all for many experiencing a justiciable family problem. From this standpoint, the impact of LASPO and linked policies promoting private settlement of family disputes does look calamitous, even existential, for the field of family law itself.

Gillian Douglas was marginally less pessimistic about family law in the post-LASPO world:

…” it might be argued that the extent of the law’s role is to proclaim the norms by which families should deal, by themselves, with the problems arising from the breakdown of the relationship then leave them to get on with it”^[35]

This view at least sees a continuing role for family law norms. But the optimism implicit in it crashes into a conundrum. On the one hand, family law’s norms are more important than ever as they provide the reference point by which family relationships might be constructively organized and managed, even without recourse to legal advice or process. On the other hand, the instruments for the expression of those norms (lawyers and legal process) have all but disappeared.

Douglas does not offer a solution. Her recognition that, today, family obligation, ‘…insofar as it may still need to be articulated through family law, is not supposed to require the use of a family justice system to make it manifest’, seems laced with scepticism.^[36] Perhaps this explains why she does not venture suggestions as to how family law’s norms might be clarified or transmitted so that families can receive them now the conduit of legal advice has been blocked. Curiously, the same explanatory gap exists in Diduck’s exposition of how family law transmits norms to govern our views of acceptable relationship practices.^[37] Diduck does not cede all to family lawyers as Dewar does. But while she incisively identified the useful norms embedded in family law judgments, she stopped short of considering whether and how their potential signalling effect—their power to influence family life—might be realized in practice.

This is a critical gap. Without a rival explanation of how family law’s norms are made manifest beyond specific judgments in individual cases, we are left with only the catastrophic implications of Dewar’s theory. The lamentations on the devastating impact of LASPO for family justice continue to look justified.

The problem that has been exposed is one of both scope and method. First, the recognition that family law has broad boundaries, with functions capable of usefully ministering to family life as well as family breakdown, has been undermined by a tendency to explore it predominantly through the lens of dispute resolution. Secondly, partly because of this focus, the means by which family law can be made meaningful for family life have been under-explored. One contemporaneously published riposte to Dewar captured both issues, criticizing his account for, ‘handing family law over to a professional elite’, and ‘distracting thinking from the development of a coherent theory of family law’.^[38] All this adds up to a conceptual shrinking of the boundaries of family law and a consequent elevation of the threat posed by delegalization of family disputes.

3. From Family Conflict to Family Life: Expanding the Reach of Family Law

The analysis thus far vindicates the view that ‘rather than the functioning family, it is the pathology of family breakdown that has come to preoccupy the discipline’.^[39] To date, little effort has been made to engage people with family law outside the context of disputes. This is a missed opportunity. Many family law norms and rules would be helpfully, or at least logically, understood at the inception of relationships, or during their existence. And one way to recapture and extend the relevance of family law—even in the post-LASPO environment—is by embracing its latent functionality as a tool for shaping understandings and expectations of relationships over extended periods of time. This section will begin with three contextual examples of where family law could be made useful for family life, and then address potential critiques concerning the effectiveness and the contestability of family law norms with reference to those examples.

A. How Family Law Could Be Useful for Family Life

(i) Cohabiting Relationships

Some 3.4 million couples cohabit instead of marrying and cohabitation is the fastest growing family type.^[40] Cohabitation attracts legal recognition in some areas: the availability of protections from domestic abuse, for example. But it does not attract recognition in material ways that can be harshly felt when the relationship ends, be it through separation or death. There are no powers for courts to adjust each party’s property or make maintenance awards, leaving cohabiting couples reliant on the rules of property law.

The results can be unpalatable, unfair, and sometimes personally disastrous for cohabiting partners who find themselves financially interdependent or economically disadvantaged through decisions taken during a relationship. The problem is compounded by widespread misunderstanding, with the ‘common law marriage myth’ leading many to believe incorrectly that cohabiting relationships generate legal recognition and protective rights akin to a marriage. In 2018, the last British Social Attitudes survey to measure the prevalence of belief in this myth found that 47 per cent of respondents held it. This proportion held constant among individuals who were themselves cohabiting. The report noted the tenacity of the myth, observing that its prevalence had only dropped slightly since it was first measured in 2000.^[41]

On the surface, therefore, it is difficult to argue against the logic of communicating information about which legal obligations and consequences cohabitation does and does not generate so that it is received before such relationships form, or at least before they end. It is clearly long before the break-up of a cohabiting relationship that such information is useful or actionable.

(ii) The Wedding Planners

Marriage—as Baroness Hale memorably noted—still counts for something in the law of this country.^[42] While many historical legal consequences of marriage have become obsolete^[43] or only marginally applicable,^[44] marriage continues to have significant consequences if the relationship breaks down. Then, the consequences of a legal relationship founded on an ethos of sharing and mutual support can be acutely felt, since the courts have broad powers to adjust assets to meet needs or achieve fairness, as well as to impose ongoing maintenance obligations. Parties may be surprised to discover that these powers can encompass assets they considered their own, such as inherited money or property, pensions, or personal savings.^[45] While an orientation towards ‘clean breaks’ is written into statute, it is couched in aspirational terms.^[46] Plenty of divorcees find that they are financially tied to their former spouse long after their divorce as a result of a periodical payments order.^[47]

This is broadly positive, embodying principles of fairness, gender equality, and valuing differential contributions to relationships. For many, the promise of material security forms part of the appeal of marriage, or even the very reason for entering it. But the logic and fairness of fitting family law to family life is striking here. Wouldn’t it make sense to ensure people know what they are entering into in legal terms before they marry? Isn’t it rather shocking that individuals are routinely forming a legal relationship with enduring ramifications without being told what those ramifications are?

It might be retorted that most people do know marriage has significant legal consequences. Yet evidence indicates that many do not, or at least that they do not know the nature of the consequences. A YouGov survey of over 2000 recent divorcees, conducted as part of substantial research into the financial arrangements made by divorcing couples, found evidence of widespread ‘confusion and misunderstanding’ of relevant legal rules and norms.^[48] Understanding would likely be even poorer among those who have not experienced divorce. These data reinforce an anecdotal insight I have gleaned over fifteen years of teaching family law to undergraduates. As a knowledge and ideals priming exercise, I commonly begin teaching the topic of marriage by asking students to indicate their level of agreement with a variety of statements, including that ‘marriage is just a piece of paper’. A strikingly high percentage of students agree with this statement year-on-year. For some, the agreement is intended to signal ideological openness to different types of partnership as valuable. But it is also clear that the responses are part explained by naivete about the substantive consequences of entering a marriage. If this view exists among third year law undergraduates, it is likely to thrive in the general population.

The peculiarity of a situation in which thousands of couples each year form a legally consequential union that they know little about is driven home by the current law on the enforceability of pre-nuptial agreements. Pre-nuptial agreements effectively enable couples to opt out of the default legal rules on financial and property division at the end of a marriage, and agree in advance their own terms. For an agreement to be upheld by a court, the parties are expected to have had ‘a full appreciation of its implications’ at the time it was formed.^[49] The Law Commission would like to go further, and has proposed that independent legal advice on the consequences of a pre-nuptial agreement should be a pre-requisite of its enforceability.^[50] Yet, while an informed decision is required of the minority who wish to opt out of the default legal consequences of marriage and fix terms of their own choosing for the potential ending of their relationship, an informed decision is not deemed necessary for the vast majority of people to opt into the default legal consequences of marriage, which are not of their choosing. Even if the detail of law’s norms around sharing and maintenance post-divorce shift over time to generate different outcomes for divorcing couples (which they do, as noted by Diduck),^[51] it would still be possible and appropriate to communicate that there are consequences for property and finance, and to give examples of what that might mean on relationship breakdown.

Finally, the practical case for increasing understanding of the law pertaining to marriage is strengthened by the need to ensure couples are informed about the legal distinction (or the lack of it) between marriages and other partnership types. I am not alluding only to marriage vis-à-vis cohabitation here. In this country it is possible for couples to choose either a marriage or a civil partnership. We understand little of what people know or perceive about the distinction between these two institutions, which in law is so fine as to be almost non-existent. There is some research indicating that knowledgeable couples understand the substantive equivalence of marriage and civil partnership and select the latter for reasons of ideological purity, preferring an institution untainted by the religious and patriarchal history of marriage.^[52] For others, confusion over the existence of two formal legal relationships risks engendering the false belief that civil partnership is substantively different and less significant than marriage. A small research study with same-sex couples in civil partnerships found some evidence of such confusion, the authors noting that ‘some people continue to be unclear about what the legal differences between a civil partnership and marriage are, including those who have already entered into one’.^[53] If I might further exploit the anecdotal evidence amassed in the course of teaching family law, this finding resonates with the erroneous perception of some students that civil partnerships are less significant than marriage in legal terms. In the face of such evidence, accessible communication of messages about the legal meaning of both marriages and civil partnerships prior to their inception would undoubtedly be valuable.

(iii) Parents

A niche area of legal practice already exists giving prior advice on parental status and parental responsibility to adults planning to become parents through surrogacy or atypical sperm donation arrangements.^[54] These unconventional routes to reproduction unsurprisingly generate desire for understanding of the resulting legal relationships. But information on the legal consequences of parenthood could be valuable in more common situations.

As with couples contemplating marriage, it seems sensible and fair that new or recent parents should understand the inescapable new legal dynamic they have created, or are about to create, between themselves.^[55] Some might consider it relevant background information when deciding whether—or with whom—to become a parent in the first place. Certainly when a choice about sharing parental responsibility is made—as it is by unmarried mothers when they register their child’s birth and choose whether to name the other parent^[56] – the choice ought to be informed. But beyond this, there is a more important and neglected role for law to play in shaping individual and social understanding of a particular type of parenting relationship: co-parenting.

Co-parenting (ie when two people who are no longer, or never were, in a relationship are parenting a child) is an enduring relationship in law and reality that is not widely understood as such. It is suggested here that it should be. It might be a relationship many co-parents do not want but, excepting those cases where one parent poses a risk of harm, it is one that cannot be avoided for as long as both parents wish to maintain some involvement. This is true on a practical level, because arranging the logistic and financial aspects of caring for a child between two people creates a significant tie between them. As the vicissitudes of life impact on the lifestyle and wealth of one parent, there might be knock-on demands placed on the other parent, for example, to do unplanned childcare if the other parent is unwell or to manage with less child maintenance should they lose their job. So there is inter-dependency. On top of this, law’s shared parenting and involvement norms mean that being a co-parent is a relationship with legal ramifications, and one that prevails long after partnership between parents ends.

Law has strong normative expectations that both parents should be involved with their children, subject to the statutory proviso that this should not put children in harm’s way. It has further expectations that when parents are not together they will co-operate to a certain degree in their parenting. These expectations are expressed respectively in the ‘presumption of involvement’ enshrined in statute and case law^[57] and in rules on sharing parental responsibility.^[58] The former underpins a powerful pro-contact ethos that in practice supports parent–child contact against the background of extremely challenging parent–parent relationships, including some that are violent,^[59] and expects proactive efforts to facilitate that contact on the part of a primary carer.^[60] It also means that a co-parenting relationship can be sprung on someone after many years of solo parenting, if a previously absent parent suddenly decides to seek involvement. As noted earlier, implicit in the rules on sharing parental responsibility is a particular vision of responsible parenthood. It expects that parents will share the burden of parenting, maintain open communication channels, be respectful of each other’s roles and align the logistics of their lives to enable dual parenting.

The gap between law’s version of co-parenting and what happens in practice is likely to be wide. Research data in this area are not strong. What we have tells us that many separated parents do not continue involvement with their child(ren) at all,^[61] though their legal parental responsibility will normally endure irrespective of that. We also know that many do not share decision-making and struggle to establish a workable framework for it after a separation.^[62] Many never really ‘co-parent’, managing only to ‘parallel parent’, prompting tussles and upsets over the respective parenting decisions they make.^[63]

None of this will surprise anyone who has watched separated parents they know navigating a seemingly endless tug-of-war over routine events in the parenting life course; conflicts might arise over medical treatment, new homes and partners, aspirations to move area, changing disciplinary boundaries as children mature, new schools, celebrations etc. Law has expectations about how some (though not all) of these struggles should be managed, and particularly about which decisions must be shared.^[64] Those expectations only manifest if one parent decides to invoke the law in a particular situation. But should that happen, the legal position may come as an unwelcome surprise. Particularly if the challenging parent has had little prior involvement and is invoking the latent parental responsibility that they have despite this, or where one parent’s life plans may be destabilized by the result.^[65] Litigated disputes over the exercise of parental responsibility are on the increase,^[66] a fact that suggests plenty of co-parents either misunderstand or disregard what law expects of them, or are unable to live up to it.

Information on law’s vision of co-parenting is usually only communicated in response to legal advice sought at the point of separation or because legal proceedings have been brought to resolve a dispute. If legal advice is inaccessible, the information might only be received via a judge. But it could be proactively communicated to all parents, and targeted at events known to be flashpoints in the co-parenting lifecycle.

B. The Effectiveness and Contestable Norm Critiques

(i) Would Family Law for Family Life Change Anything?

Having briefly outlined some areas in which communicating family law to support family life looks appealing, it would be remiss not to consider how the effectiveness critique mentioned at the start of this article might be mounted. Would disseminating information on family law rules and norms make any difference to what people do, at either the micro individual or macro social understanding level?

In the context of cohabitation we have some evidence on this point because the value of communicating the tenets of family law during a relationship has already been recognized and tested. Government-funded efforts were made to educate cohabiting couples on their legal rights and options in the 2004 Living Together Campaign^[67]—a response to the research that confirmed existence of the common law marriage myth.^[68] An evaluation of that campaign found that increased awareness did not often influence behaviour; few were prompted by information exposure to marry or take other legal steps to plan for the financial consequences of the relationship’s end. Problems including optimism bias,^[69] different partner perspectives, unequal bargaining power, and discomfort discussing relationship breakdown made many cohabitants ‘unable to act or agree to act in a legally rational way’.^[70]

These problems are tenacious and common to many intimate relationships. Consequently, the notion that people can be expected to engage directly in rational relationship planning in response to information about their legal position is widely met with scepticism. This explains why, following the Living Together Campaign, focus shifted to building pressure to reform the law to extend a default package of legal rights and recognition to cohabiting relationships.^[71] However, the strong case for such reform does not negate the case for continuing to attempt to communicate information about how law applies to cohabiting relationships to those who are in them, or might at some point be in them.

For one thing, a weak behavioural response is not the same as no behavioural response. An evaluation of the Living Together Campaign found ‘some evidence of a link between legal knowledge and legal actions’, even though only a minority of the cohabitants surveyed had taken steps to act in response to information about their legal situation and options.^[72] Following later research, the authors concluded that a significant group of ‘pragmatist’ cohabitants, who base their decisions about whether to marry or cohabit on legal or financial grounds, are likely to be ‘open to legally rational arguments’, and therefore might be galvanized into action by information.^[73] So there is potential for some micro-level impact here.

Even if evidence indicates that legal knowledge will not often generate protective legal action by cohabitants (eg getting married or making property agreements), there is no research examining whether legal knowledge indirectly influences cohabitants’ behaviour in other ‘rational’ ways that might reduce their exposure to financial vulnerability on breakdown. Examples might include not sacrificing employment income or career advancement to bring up children or to prioritize the interests of the partner during the relationship. In the absence of evidence we cannot know that knowledge of the law’s stance on cohabitation would not prompt some to make such choices.

There could also be more indirect macro-level advantage to increasing understanding that cohabitation is not legally recognized as a relationship generating support obligations. In the long-term, alteration of the general social discourse surrounding this relationship could create a climate in which planning and executing cohabiting relationships in ways more cognizant and protective of the interests of both parties becomes normalized. The potential for family law to shape general social understanding of relationships through norm signalling could thereby boost the ability of individuals to utilize it in tangibly useful ways.

The example of marrying couples is similar. Again, we might query whether it would be worth communicating information about the enduring consequences of marriage from the outset, since we know that the optimism of romance means most couples would dismiss the likelihood of things every going wrong for them.^[74] But the fact that being better informed would not necessarily affect couples’ marriage plans does not negate the case for better information. Fairness and transparency surely dictate that people should understand at a basic level the legal consequences of forming a marriage.

Moreover, as in the case of cohabitation, the usefulness of educating people on the legal position does not rest solely on the likelihood of it influencing the decision to marry itself. Here too, the impact of understanding law’s expectations of marriage could be more indirect, influencing decisions about careers and lifestyle made during the marriage. Perhaps it would help manage expectations in the event of divorce in some instances, and in so doing dilute the intensity of conflict over property and finance decisions. It is also possible that more couples would be inclined to make pre-nuptial agreements if they were informed of the full scope of law’s discretionary regime for settling property and finances on divorce. I will address the question of whether growth in pre-nuptial agreements would be too alarming a side effect of educating the public on marriage consequences towards the end of this section.

The effectiveness critique might be thought to bite particularly hard in relation to the example of co-parents. Private law disputes between parents are notoriously difficult to resolve. The malleable legal concept of child welfare can generate a strong conviction on the part of each parent that their view is the right one and enable them to ground opposing claims in legal terms.^[75] This can underpin deeply entrenched conflict in a minority of families. Many litigated cases are also plagued by real complexities which often link to allegations of abuse or risk of harm.^[76] It is highly unlikely that such complex cases would be assisted as a result of the parties being forearmed with understanding about law’s co-parenting expectations.

But most parents to whom these difficulties do not apply, but for whom co-parenting is still emotionally and logistically challenging, could benefit from anticipating the nature and duration of the challenges. Co-parents who do engage with the legal process to solve a dispute are encouraged to draw up a parenting plan,^[77] proactively agreeing how they will share their parental responsibility in different contexts. It would undoubtedly be useful for all parents to be made aware of the value of discussing and planning for the division of their parenting duties and parental responsibility over time—even those parenting as a couple. Such purposeful and comprehensive planning could even surface the uneven division of parenting labour that still prevails between men and women and prompt more fair and thoughtful division in intact relationships.

More generally, promoting broad understanding of co-parenting as an enduring relationship would produce a social environment more cognizant of its ongoing challenges. The idea that partnerships require support and work at times is already well-embedded in society. A shift in discourse to frame co-parenting as a relationship similarly requiring planning, management, and support for most people could only be a positive thing. In this respect, the behavioural impact of legal norms could be to nudge people towards more widespread use of co-parenting relationship support that is already available but not widely used.^[78] Moreover, it could reduce the element of surprise and the sense of individual pathology or failure when inevitable bumps on the co-parenting road are repeatedly encountered.

The suggestions I have made in this section about the potential indirect impacts of developing broader awareness of family law norms are partly speculative. Yet they are in line with theories observing the potential for law to have indirect behavioural impacts. Cass Sunstein, for example, has written of ‘information-induced norm cascades’ that law can bring about, generating changes in behaviour simply through its signalling effect.^[79] It is to be expected that legal norms will have ripple effects on behaviour that can be hypothesized but not known for certain in advance.

(ii) What If the Relevant Norms Are Contestable?

This brings us to the question of how the observation of many scholars that family law’s norms can play out in complex and contestable ways should be dealt with. How sensible would it be to increase awareness of family law if the ‘norm cascades’ it might generate are seen as problematic?

Take the example of law’s co-parenting norms. It was noted above that a pro-contact ethos is dogmatically pursued in the family justice system. This results in the safety and wellbeing of children and mothers being routinely marginalized, and in children being exposed to the caprice of unreliable parents.^[80] Repeated efforts to challenge this on the part of researchers and policy-makers have been largely unsuccessful,^[81] but it would be unhelpful if those efforts were countered by allowing a ‘contact-at-all costs’ norm to penetrate society more widely.

Pre- nuptial agreements provide another example of family law that could have negative consequences. The development of the law so that it broadly supports the enforceability of these agreements has been welcomed by many for empowering couples to make autonomous and personalized decisions on the terms of their marriage.^[82] But in reality, pre-nuptial agreements are normally appealing to the stronger partner and can function to manipulate and exploit a weaker partner.^[83] Is this an opportunity we want more widely understood?

Furthermore, we must be alert to the possibility that norms and rules which appear innocuous might have unintended effects. Smart wrote many years ago of the tendency of legal discourse to operate in ways that support existing hegemonies,^[84] and some of the theorists this article has drawn on have since revealed the diffuse and unpredictable ways this can happen. For example, Diduck has shown how seemingly progressive family law norms can paradoxically co-exist with, even sustain, regressive ones:

things rarely go according to plan… Despite their apparent earlier exile, it seems, traditional family values did not go quietly away… more recent cases might be said to illustrate a process of discursive construction [of formal equality, autonomy, choice and personal responsibility] which could have the effect of re-instantiating traditional family identities and choices,’^[85]

This complexity can be seen in both the co-parenting and the pre-nuptial agreement examples. Discourse surrounding the pro-contact ethos is multi-layered. Insistence on the involvement of both parents can be dressed up as progressive; it suggests men have the same role to play as parents that women do, equalizing and dividing the responsibility. But the involvement of fathers has not depended on them doing much parenting at all. Rather, it has been asserted as synonymous with child welfare with little or no regard for context. This has the effect of diminishing the significance of women’s caregiving, guaranteeing fathers’ power and position in family life,^[86] even to the extent that they are not held to account for abuse of mothers and children.^[87]

Meanwhile, legal support for pre-nuptial agreements began with the notion of equality that first powered a shift to valuing the gendered contributions of women on equal terms as men’s financial ones. Later, this ideal expanded to embrace parties’ autonomy in marriage,^[88] which in turn justified an emphasis on personal responsibility for choices made within the marriage and provided a rationale for law’s endorsement of pre-nuptial agreements. This returned us to a situation where the losses incurred by relationship compromises and caregiving can be left to fall where they may—which usually means on women. It prompted Lady Hale to question, ‘whether we really believe in equality in marriage’.^[89]

It follows that, even as family law’s normative power is prized and championed for its capacity to correct power, protect the vulnerable, and signal social expectations of equality and care, the norms in question might have negative as well as positive effects, on both the micro and macro level. A family law for family life agenda would increase exposure to family law norms seen as forces for social good, and family law norms seen as retrograde and damaging, and might have unforeseen impacts that some think undesirable. It is my contention that the family law for family life agenda is worthwhile notwithstanding this, for several reasons. These, I suggest, add up to the sort of ‘plausible judgment’ that communicating legal norms would ‘on balance’ have a positive effect that Sunstein argues is a sound foundation for proceeding.^[90]

First, the logic and fairness of ensuring people understand in basic terms the legal consequences of family relationships they choose to form remains. To these values we might add transparency. The way to address objectionable norms is surely not to hide them. Certain elements of family law are undoubtedly helpful to some interests and less helpful to others. But there is nothing worthy in keeping those in the latter category in the dark, where law’s expectations might ambush them from the shadows if the law is invoked against them in the context of a family dispute.

Secondly, the norms of family law are not just expressions of contestable values. Even when they are imperfect, they are also the vehicle through which rights are realized, and through which justice may be used as a corrective against power and vulnerability. On this point it is noteworthy that many theorists who have flagged the potentially negative repercussions of family law norms have also mourned the retraction of those norms in the wake of LASPO and privatization of family dispute resolution. But it isn’t possible to have things both ways. As we have seen, the direction of policy is such that the individual and collective impact of positive family law norms will diminish significantly if we leave them to manifest only through litigated or lawyer-guided dispute resolution. A family law for family life agenda could play a role in offsetting the impact of the relentless march towards privatizing family disputes.

Raising awareness of the norms we would rather downplay might be the cost of transmitting family law’s more valuable norms in the current policy landscape. But we would also expect a family law for family life agenda to be comprehensive in its remit. For example, communication about law’s co-parenting norms would encompass the formal rules that designate involvement with a parent as subordinate to the child’s safety, and witnessing diverse domestic abuse behaviours as harmful to children—those invaluable protective elements of family law that Eekelaar has lauded.^[91] It would also highlight legal rules and processes that might support those at the receiving end of abusive behaviour from their co-parent. In so doing, it could improve the chances of individuals and society recognizing and naming abusive behaviour.

Thirdly, contesting family law norms and putting ordinary people in a position where they understand them need not be mutually exclusive. Intellectual inquiry into the diffuse ways law operates is an important endeavour for academics. But it is unintelligible and of little relevance to ordinary people, and it is imperative that theorizing does not hamstring efforts to extend the practical utility of law. Professional practice is not incompatible with professional critique and activism. As Eekelaar has said, ‘it is an important feature of institutional lawmaking and law appliance that the lawmakers and law appliers are susceptible to argument about the values which underpin their activities’.^[92] I would go further, to assert that professional diligence demands a degree of proactive reflexivity. This requires an intellectual agility of family law professionals and scholars. They must be able to point out and guide people through the trees even as they maintain oversight and stewardship of the wood. But this is no more than the very essence of what Dewar claimed family lawyers already do.

Fourthly, I suggest that resistance and protest against family law’s norms are not the exclusive preserve of an academic or lawyer cognoscenti. The rest of society is capable of these things too, as illustrated by Charles Keidan and Rebecca Steinfeld, who successfully blazed the trail for equal civil partnership,^[93] and —perhaps less palatably—as fathers’ rights lobbying groups have ensured their interests remained at the top of legislative and policy agendas.^[94] It is possible that greater awareness of family law’s more divisive norms—such as supporting contact with parents in almost all circumstances, including where the parent has been violent, volatile or unreliable—will garner broader public support for reform. This could add weight and political capital to the reform efforts of family law professionals, and counter-weight to those dominant interests which already manage to keep their agendas on the policy radar.

Resistance and change could also take the form of subtle, long-range changes in behaviour—the ‘norm cascades’ that Sunstein has identified. We cannot be sure how people would make meaning of some of law’s norms if awareness and discourse around them increased outside of the routines and mantras of family lawyers and the family justice system. What if a behavioural upside of learning that law apportions parenting rights and responsibility equally is that more women begin to insist on egalitarian caregiving or sharing career compromise? What if greater understanding of parental responsibility prompted more parents to recognize and plan for elements of parental labour often shouldered by women, such as routine oversight and decision-making in relation to education and healthcare?

Finally, part of the point of the law for life agenda is to rethink how law is communicated, shifting emphasis from rarefied and exclusive modalities to more accessible ones. That is what we turn to now.

4. Modalities

The fact that family law operates both by radiating normative messages, and through resolving disputes using rules and process, demonstrates that it has different modalities on a conceptual level. Elsewhere, it has already been observed that the more tangible modalities of family law service provision are rapidly and dramatically diversifying, partly in response to the gap left by LASPO, and partly because of growing tech use and capability. Maclean and Eekelaar recently traced a bewildering smorgasbord of advice and information provision.^[95] Meanwhile Smith and Hitchings have noted that this covers a wide spectrum of professional legal advice, non-lawyer legal services, and extra-legal services that focus more on relational and conflict skills, rather than legal rules and processes, as family dispute resolution tools.^[96] There is evidence of significant uptake of non-traditional advice services in the field of family disputes, particularly those provided online,^[97] indicating that the way advice and expertise are accessed is already changing.

A review of how traditional and emerging modalities of family law might be adapted and expanded to fit a family law for family life agenda reveals that the agenda would be well-aligned with the direction of travel in advice-seeking and provision.

A. Traditional Family Law Modalities

The established modalities of family law include traditional partisan legal advice, court proceedings, and adjudication. To these can be added less conventionally ‘legal’ modalities that typify the application of family law through the modern family justice system. For example, alternative dispute resolution, most notably family mediation, which is integrated into the family justice process through statute and procedure rules, and incentivized through legal aid funding.^[98] Planning Together for Children programmes, delivered to parents to support private settlement of post-separation parenting disputes in line with family law’s pro-contact norm, are another innovation.^[99] Finally, there is legal information, most notably delivered through online resources developed and curated by organizations such as Advice Now, but also through in-person support provided by charities such as Support Through Court.^[100]

Two characteristics of these modalities stand out in the context of the current analysis. First, they are predominantly reactive. They are provided only when proactively sought. True to the earlier cited observation that it is the pathology of family breakdown that has come to preoccupy the discipline, they also largely depend on family conflict as the triggering event. Such conflicts generally arise in the context of a discrete, justiciable event like a divorce, a post-separation property dispute or a child arrangements dispute between parents. As such it is unsurprising that a second characteristic of these modalities is that they are largely remedial and formalistic. Often, they are integrated into formal legal proceedings. But even when they are not, they are backed by the potential for them. So traditional lawyer advice may often be geared towards avoiding legal proceedings.^[101] But the potential for such proceedings is nonetheless implicit in it, particularly given that the advice is subject to rules about partisanship and privilege that derive entirely from the nature of legal proceedings. Mediation is a means of attempting to resolve a dispute without recourse to court, but it is structurally integrated into the legal process, albeit as a first and ideally last step. Planning Together for Children programmes are also built into the family court process as a tool judges can direct parties to use to reach agreement.

Established modalities are not exclusively reactive and remedial. For example, legal advice is sometimes provided to clients seeking pre-nuptial agreements or cohabitation agreements, or to couples seeking legal advice on donor conception and co-parenting arrangements prior to assisted reproduction. Though marginal instances of this modality, these are examples of how family law can be constructive and anticipatory and instrumentally useful for family life, even in its traditional guises. Meanwhile, legal information sources are largely pitched at resolving family disputes, but some do offer anticipatory information on the consequences of forming different relationships, like becoming a parent or a cohabiting partner. Foundations for family law for family life are visible in this modality too.

B. Emerging and New Modalities

Further promise for the provision of family law for family life can be seen in emerging modalities. Take, for example, one lawyer/ two client advice services, which aim to make legal advice more efficient and affordable, and less conflict-oriented.^[102] These are presently a niche offering but represent a clear break from the traditional partisan legal advice model predicated on the potential for adversarial legal proceedings. While this model is currently reactive and family breakdown-focussed, it is a good template for how traditional modalities might be adapted to provide constructive family law advice in the different context of ongoing family relationships.

Divorce coaching is a related emerging modality, in which non-lawyer advice is provided to a separating couple. Often this is geared towards navigating legal process, but supplemented by advice on relationship-oriented skills and conflict management strategies.^[103] This type of hybrid professional support holds particular promise for the provision of constructive and anticipatory family law advice for nascent or intact relationships.

However, if more people are to be exposed to family law during their ordinary family lives, the modalities of family law must expand further. We need as many modalities that are constructive and anticipatory in their nature and timing as we have that are reactive and remedial. Traditional family law services could expand on existing anticipatory legal advice offerings, targeting key family events like engagement, cohabitation, and reproduction, in the same way that will-writing services—which must be anticipatory—are routinely promoted to ordinary people. Billable hours could also encompass ad hoc legal health checks for family relationships. True innovation might see such services coupled with holistic advice and coaching services for co-parents, who are in effect locked into a uniquely challenging post-partnership relationship that is largely unsupported.

Although such modalities would be innovative, they would hardly be groundbreaking given that they would only reach the minority able to privately fund them. This is where public legal education (PLE) might come into play. PLE is a potentially game-changing modality as an effective mechanism for communicating legal rules and norms that is highly scalable, and therefore relatively cheap. Legal education must be distinguished from legal information, however. A static legal information resource can be excellently designed and assembled. But presenting such a resource to someone no more amounts to educating them on an element of family law than would giving a textbook to a student and leaving them to get on with a course. In the latter scenario, educators would not expect the student to be confident or skilled in applying knowledge that had merely been read in private. Education involves engaging learners with information in ways that enable them to go through cognitive processing and elaboration, making the information meaningful and useable. It is interactive, ideally discursive and, crucially, at its most effective, also engages with the emotional dimension of the learning, taking place in a supportive and empathetic environment. This final feature is especially important in the family law context. It is well known that the emotional dimension of family relationships can impede responses to legal information and advice, whether in the context of dispute resolution efforts,^[104] or establishing relationship terms.^[105]

Legal information has come a long way in the field of family law, partly because it has been purposefully funded and expanded as part of Government efforts to offset the impact of withdrawing legal aid for professional family law advice.^[106] Some excellent resources exist, such as those provided by Advice Now. This suggests that the area is already fertile ground for PLE strategies. But while current resources are often badged as PLE,^[107] they usually still take the form of static legal information. Even those enlivened with multimedia content are normally still to be consumed passively. To become a truly effective family law modality, and truly deserving of the PLE descriptor, resources would need to be designed and delivered more creatively. This would entail greater fidelity to principles of effective learning, and holistic content that empathically acknowledges the emotional context of family relationships.^[108]

Strong templates for family law education resources do exist in the context of relationship breakdown. The UK’s Planning Together for Children Programme bears some hallmarks of effective education. California’s court-based self-help programme for people trying to resolve a family dispute includes interactive workshops that emulate real education settings.^[109] And Denmark’s Cooperation After Divorce app is a groundbreaking and exemplary resource;^[110] devised in accordance with theories of learning, it comprises ‘a combination of knowledge and tools designed to teach divorcees relevant coping strategies, and adequate behavioural changes’.^[111] Not only does the app merge legal with psychoeducational content, but it contains whole sections to support the ongoing co-parenting relationship that this article has argued is inappropriately overlooked in traditional family law advice.

Good PLE resources might be cheaper than tailored legal advice but they are not cost-free. One way to keep the cost low-to-neutral would be to embed some elements of family law for family life information in school personal, social, and health education (PSHE) curricula. This is not far-fetched. It is a statutory obligation for schools to include relationships education in their PSHE syllabuses.^[112] Barlow and Ewing have worked successfully with education providers to incorporate the tenets of healthy adult relationships into PSHE resources used in secondary schools.^[113] Their resources are derived from family law research-based evidence on the causes of family breakdown. It would take little more to add to such resources key information on the legal differences between relationship types. Design and delivery of resources in other spheres would come with a price tag, but the Government funding for legal information intended to fill the advice gap left by LASPO indicates willingness to contemplate spending in this area. Because the scalable nature of legal education resources makes them cost-effective, a persuasive case for further public funding would not be difficult to make.

Advocating for good PLE resources is not a capitulation to policy-level platitudes about how the enormous shortfall in legal advice following LASPO can be made good through mere timely provision of the right information. This is a fallacy, as revealed by ample research.^[114] That said, if innovating around a family law for family life agenda were to result in more sophisticated and holistic PLE resources, tangential benefits might accrue for resources targeted at family disputes.

The components of better resources would almost certainly end up being incorporated into resources intended to support family dispute resolution for those without access to legal advice, making them intrinsically more engaging and useful. Additionally, those who had been exposed to family law for family life resources would be primed on the basic tenets of family law before ever experiencing a dispute. This could improve their ability to absorb additional information and advice at the point of family crisis. Family breakdown often engulfs people in a fugue of shock, emotional turmoil, and logistical challenges. Amidst this, it is unrealistic to expect absorption of and dispassionate response to relevant legal norms. But this would be less of a feat given a prior framework of knowledge and skill to build on. Done well, therefore, innovating to realize family law’s neglected potential to support family life could bring us full circle, to a place where its dispute resolution function is coincidentally better fulfilled for those reliant on self-help and free resources.

The above suggestions are not definitive or exhaustive proposals. The point is to illustrate that there is scope to creatively expand the modalities of family law so that it lends itself more comfortably and accessibly to family life. Some of the examples are hybridized advice forms. Although competent understanding of law is an integral part of them, they have a distinctly non-legal flavour; they could be delivered by lawyers, but they would not necessarily have to be. Either way, legal competence would need to be supplemented by expertise from other domains—education, relationship and conflict management, resource design, and computer technologies could all be implicated in the effective design and delivey of such modalities.

The challenge is not new. Together with Emma Hitchings, I have written previously of how the territory of family law is already being challenged extensively by non-lawyer service providers. This, we observed, is likely to result in ‘the remaking of family lawyers as family justice professionals, with law and legal expertise no longer necessarily central’.^[115] This is another way in which the traditional boundaries of family law are shrinking, as the reach of family lawyer advice diminishes. Embracing the new norm of diverse services and service providers would almost certainly be necessary to effectively realize family law for family life. A tangential upside is that pursuing this new agenda could provide the momentum and purpose needed for the shifting sands of family law advice provision to be managed. Moreover, some of the options mooted here indicate that there is potential to boost traditional legal service provision in delivering a family law for family life agenda, recapturing some territory for family lawyers.

5. Conclusion

This article has presented a case for pursuing a family law for family life agenda with a view to reasserting and extending the relevance of family law at a time when its role in dispute resolution has been heavily undermined. It has been shown that existing family law scholarship provides theoretical foundations for this agenda. In concluding, it is worth noting that the agenda also fits with scholarship that criticized the potential loss, in social justice terms, of privatizing legal disputes when alternative dispute resolution became popular several decades ago. Several theorists argued that ‘the very kinds of cases likely to benefit from judicial resolution given the progressive trends in legal doctrine that had emerged,’ would lose out on both the micro and macro levels.^[116] Individuals would be nudged towards private agreements uninformed by protective legal norms, while the progression of legal doctrine would halt, with ‘no chance that the resolutions of [individuals’] cases will have positive aggregate impacts’.^[117] The multiple benefits that could accrue from a family law for family life agenda could help offset this erosion of justice.

On a micro level, the discussion has highlighted the logic and fairness of the case for ensuring that people know the consequences of legal relationships before they form them. Without invoking the unrealistic fallacy of caricatures like the ‘fact-gathering rational, caring parent who would make [post-divorce] decisions based on knowledge’,^[118] it has highlighted the scope that being informed might offer people to shape the trajectories of their relationships in more future-proof ways. As well as suggesting that it could soften the impact of the privatization trend in the context of disputes, by ensuring people know a little of what law can and would do for them, and by informing more effective accessible dispute resolution services and resources. Of course, on an individual level, the dispute resolution function of family law will continue to be critically important for some. As such, the proposals made here are intended to supplement rather than usurp that dimension of family law practice.

It should be clear, therefore, that the proposed agenda is decidedly different in character from the ideological effort made in the 1990s to use law and legal information to influence relationships by dissuading couples from divorcing.^[119] Like many others, Eekelaar was both critical and sceptical of that effort. He noted that the endeavour, which included notifying both marrying and divorcing couples of the responsibilities and values of marriage, could be characterized as ‘government by persuasion’ – plus, evidence revealed it to be futile.^[120] By contrast, a significant driver here is to find ways of ensuring that the more positive dimensions of family law are accessible in meaningful ways, in an era when the role of lawyers in communicating them has substantially declined. It is a more neutral, practically motivated and individual-centred agenda, designed for a different time.

On a macro level, the agenda could reinsert some of the public scrutiny and discussion of legal norms that falls away when legal process is seldom used because dispute resolution has been normalized. If effective, family law for family life would be as much a signalling device to the powerful as to the vulnerable, and the latter might occasionally find they are operating on a more even playing field because both parties know law’s standards and expectations. Moreover, it has been argued that enabling family law norms to percolate more widely in society could facilitate long-range change in the form of contributions to policy debates, protest, and personal relationship practices.

The kernel of the idea that has been presented here is simple. Its complexity lies in the shift of mindset and receptiveness to change needed for diversification from the mainstays of traditional family law practice to occur. Not least because we have seen that reshaping family law’s boundaries and modalities to make it work for family life, rather than just for family crisis, has ramifications for the contours of professional advice and services. However, the potential gains are plentiful and the challenge is aligned with the times, both in terms of flux in legal service provision and challenges to the ongoing relevance and remit of family law.

1. Various accounts of the delegalization of family law have been written: Emma Hitchings, ‘Official, Operative and Outsider Justice: The Ties That (May Not) Bind in Family Financial Disputes’ (2017) Child and Family Law Quarterly 359; Mavis Maclean and John Eekelaar, After the Act: Access to Family Justice after LASPO (Bloomsbury Publishing 2019); Alison Diduck, ‘Autonomy and Family Justice’ [2016] Child and Family Law Quarterly 133. ↑

2. Alison Diduck, ‘Family Law and Family Responsibility’ in J Bridgman, H Keating and C Lind (eds), Responsibility, Law and the Family (Aldershot, Ashgate 2008). ↑

3. John Eekelaar, Family Law and Social Policy (Weidenfeld and Nicholson 1979). ↑

4. For example, through law and procedure designed to thwart efforts to force any individual into marriage. And through efforts to centre the child’s welfare rather than parental rights in private parenting disputes. ↑

5. Eekelaar (n 3). In the same book, Eekelaar discusses one further function: supporting families. I have excluded that from this list because it seems to me to speak more to how other branches of law and policy bolster family law, for example, by affording special protection to the matrimonial home or structuring entitlements to benefits based on relationship status. ↑

6. Alison Diduck, ‘What Is Family Law For?’ [2011] CLP 287. ↑

7. ibid 289. ↑

8. Above (n 6) 291. Emphasis added. ↑

9. See in particular Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 FCR 213, though Diduck discusses other examples and still more could be selected from reported case law. ↑

10. See Children Act 1989, s 2(3) for the statutory definition of parental responsibility in English law. ↑

11. This was the intention behind the decision to extend parental responsibility to all fathers named on a child’s birth certificate through the Adoption and Children Act 2002. The motive was criticized by some as optimistic and misguided. See Leanne Smith, ‘Clashing Symbols, Reconciling Support for Fathers and Fatherless Families After the Human Fertilisation and Embryology Act 2008’ [2010] Child and Family Law Quarterly 46; Julie Wallbank, ‘“Bodies in the Shadows”: Joint Birth Registration, Parental Responsibility and Social Class’ [2009] Child and Family Law Quarterly 267. As both these articles show, the policy objective was strongly shaped by the claims of fathers’ rights advocates. ↑

12. As enshrined in Children Act 1989, s 2(7) and explained in Law Commission, Family Law, Review of Child Law: Guardianship and Custody (Law Com No 172, 1988), chapter 2. ↑

13. Re G (Parental Responsibility: Education) [1995] 2 FCR 53; Re C (Minors) (Change of Surname) [1997] 3 FCR 310; Re C (Welfare of Child: Immunisation) [2003] EWHC 1376; Re J (Child’s Religious Upbringing and Circumcision) [2000] 1 FCR 307. ↑

14. Diduck (n 1) 133. ↑

15. See also Martha Fineman, The Autonomy Myth: A Theory of Dependency (New Press 2004). ↑

16. Diduck (n 1) 133. ↑

17. ibid 134. ↑

18. Eekelaar (n 3). Eekelaar expressly links the importance of family law as a power corrective to its protective function. ↑

19. Dingwall also wrote of family law as playing an important role in regulating how power is exercised in relationships, with a view to transmitting ‘a basic set of assumptions about what is equitable in contemporary society’. Robert Dingwall, ‘Divorce Mediation: Should We Change Our Mind?’ (2010) JSWFL 107, 114. ↑

20. Theories positing these micro and macro-level justice effects are discussed in R Bush and J Folger, ‘Mediation and Social Justice: Risks and Opportunities’ (2012) Ohio State Journal on Dispute Resolution 27. ↑

21. Diduck (n 1) 149. ↑

22. John Dewar, ‘The Normal Chaos of Family Law’ [1998] MLR 467. ↑

23. ibid 474. ↑

24. ibid 477. ↑

25. This belief has been repeatedly challenged through research: John Eekelaar, Mavis Maclean and Sarah Beinart, Family Lawyers: The Divorce Work of Solicitors (Hart 2000); Rosemary Hunter, ‘Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law’ (2003) Journal of Law and Society 156. ↑

26. For discussion of this trend, see Anne Barlow and others, Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times (Palgrave Macmillan 2017) and Diduck (n 1). ↑

27. FPR Part 3 mandate attendance at a Mediation Information and Assessment Meeting prior to an application to court [FPR 3.7] and, where court proceedings are initiated, exhort the court to consider at all stages whether non-court dispute resolution is appropriate [FPR 3.3]. Emphasis on settlement rather than adjudication is also contained in Practice Direction 12B (the Child Arrangements Programme, or ‘CAP’), most notably at 2.2, 5.1, 5.3, 6.1, 6.2, 6.3, and 6.5. ↑

28. As noted in Emma Hitchings and Leanne Smith, ‘Professionals and Partisans: Lessons for Family Lawyers from a Study of Fee-Charging McKenzie Friends’ (2019) Child and Family Law Quarterly 343. ↑

29. Diduck (n 1) 142. ↑

30. Legal advice and representation for private family proceedings are no longer included in the scope of civil legal aid, which is set out in Legal Aid Sentencing and Punishment of Offenders Act 2012, sch 1. Legal aid may still be provided where a history or risk of domestic violence is present: sch 1, para 12. Mediation is within the scope of legal aid as stipulated in sch 1, para 14 to the Act. ↑

31. You Gov, Legal Needs Survey of Individuals in England and Wales: Technical Report 2019/20 (2020), 47. ↑

32. Ministry of Justice, Family Court Statistics Quarterly January – March 2023 (MoJ, September 2023), figure 4. ↑

33. Rob George, Sharon Thompson and Joanna Miles, Family Law: Text, Cases and Materials (5th edn, Oxford University Press 2023) 22. ↑

34. John Eekelaar, ‘Not of the Highest Importance: Family Justice Under Threat’ [2011] JSWFL 311, 311. Emphasis added. ↑

35. Gillian Douglas, Obligation and Commitment in Family Law (Bloomsbury Press 2020) 236. ↑

36. ibid 231. ↑

37. Diduck (n 6). ↑

38. Mark Henaghan, ‘The Normal Order of Family Law’ (2008) OJLS 165, 165. ↑

39. George, Thompson and Miles (n 33) 2. ↑

40. Office for National Statistics, Statistical Bulletin: Population estimates by marital status and living arrangements, England and Wales 2022 (ONS, January 2024) <https:// www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/ populationestimates/bulletins/ populationestimatesbymaritalstatusandlivingarrangements/2022#cite-this- statistical-bulletin> accessed 15th August 2024. ↑

41. John Curtice and others (eds), British Social Attitudes: The 36th Report (The National Centre for Social Research 2019) 123. ↑

42. ‘Marriage still counts for something in the law of this country, and long may it continue to do so’, Radmacher v Granatino [2010] UKSC 42 [195] (Lady Hale). ↑

43. Such as the common law concept of consortium, according to which husbands and wives were under a duty to cohabit. This was declared to be obsolete in Macleod v Macleod [2008] UKPC 64; [2010] 1 AC 298 and Lowe et al report that the last statutory allusion to it, in Matrimonial Causes Act 1973, s 18, was repealed by the Divorce, Dissolution and Separation Act 2020. See Nigel Lowe and others, Bromley’s Family Law (12th edn, Oxford University Press 2021), 86. ↑

44. For example, the residue of what was once a husband’s duty to maintain his wife is found in statutory provision for one spouse to claim maintenance from the other in Matrimonial Causes Act 1973, s 27—although Lowe and others report that this provision is not used in practice—ibid, 89. ↑

45. Matrimonial Causes Act 1973, s 25(2)(a) requires courts to have regard to all the available financial resources of the parties. ‘Non-matrimonial property’ may be redistributed where the parties’ needs require it: White v White [2001] AC 596 and Charman v Charman [2007] EWCA Civ 503. Pension assets too may be subject to redistribution: Matrimonial Causes Act 1973, s 24B. ↑

46. Matrimonial Causes Act, s 25A places the court under a duty to consider terminating any ongoing financial obligations between the parties as soon as it is just and reasonable. ↑

47. Although research demonstrates that ‘clean break’ settlements are prevalent and that pension sharing and periodical payments orders are made only in a minority of cases. Emma Hitchings and Joanna Miles, Financial Remedies on Divorce: The Need For Evidence-Based Reform (Nuffield Foundation 2018). ↑

48. Emma Hitchings and others, Fair Shares? Sorting Out Money and Property on Divorce: Report (University of Bristol November 2023) 168 and chapter 5. ↑

49. Radmacher v Granatino [2010] UKSC 42 [75]. ↑

50. Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) chapter 6. ↑

51. (n 6). ↑

52. Nikki Hayfield, Bethan Jones and Adam Jowett, ‘Exploring Civil Partnership from the Perspective of Those in Mixed-Sex Relationships: Embracing a Clean Slate of Equality’ (2024) Journal of Family Issues 1925; Adam Jowett and Elizabeth Peel, ‘A Question of Equality and Choice’: Same-sex Couples’ Attitudes Towards Civil Partnership After the Introduction of Same-Sex Marriage’ (2017) Psychology & Sexuality 69. ↑

53. Jowett and Peel ibid. ↑

54. See, for example, NGA Law, which describes itself as ‘the UK’s first law firm to specialise in creating families’. ↑

55. Parental responsibility of one parent cannot ordinarily be terminated, although in the case of unmarried fathers and second female parents, it is possible to terminate it in very exceptional circumstances. See Children Act 1989, s 4(2A) and 4ZA(4)and Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ 315. ↑

56. Parental responsibility follows registration on the birth certificate for unmarried fathers and second female parents: Children Act 1989, ss 4(1)(a) and 4ZA(1)(a). ↑

57. The Children Act 1989, s1(2A) established the rebuttable presumption that involvement with both parents will further the child’s welfare when it was inserted into the Act by the Children and Families Act 2014. It was widely considered to be a consolidation of the long-standing common law position that contact is almost always in the interests of children: Re O (A Minor) (Contact: Indirect Contact) [1996] 1 FCR 317. ↑

58. Children Act 1989, s 2(7). Sharing of parental responsibility does not apply when an unmarried parent is not named on a child’s birth certificate, unless they have taken action to obtain it in line with Children Act 1989, s 4. But only around 3% of births are registered solely by the mother: Office For National Statistics, Birth Characteristics in England and Wales: 2021 (ONS 19th January 2023). ↑

59. Many studies have revealed the willingness of courts to support contact even where there is a history of violence, notwithstanding the statutory facility contained in Children Act 1989, s 1(6). For a summary of the issues, see Rosemary Hunter and others, Assessing Risk of Harm to Children and Parents in Private Law Children Cases: Final Report (Ministry of Justice 2020). ↑

60. Re H-B (Children) [2015] EWCA Civ 389. ↑

61. The best evidence available indicated that, as of 2014, 25% of non-resident parents reported seeing their child once a year or less, with the reports of primary carers indicating a higher percentage. See Tina Haux, Stephen McKay and Ruth Cain, ‘Shared Care After Separation in the UK: Limited Data, Limited Practice?’ [2015] Family Court Review 572, 575–578. ↑

62. Renee Luthra and Tina Haux, ‘The Mental Load in Separated Families’ (2022) Journal of Family Studies 669. ↑

63. ibid. See also Paul R Amato, Jennifer B Kane and Spencer James, ‘Reconsidering the Good Divorce’ (2011) Family Relations 511. ↑

64. The Children Act 1989, s 2(7) stipulates that parental responsibility may be exercised unilaterally but the courts have effectively qualified this by indicating an expectation that parents should consult each other on certain key decisions, such as choice of school (Re G (Parental Responsibility: Education) [1995] 2 FCR 53 (CA)), and significant medical treatment (Re C (Welfare of Child: Immunisation) [2003] EWHC 1376). ↑

65. This could happen in many ways but the most notable examples involve restrictions being placed on one parent’s desire to relocate, which—if contested—will be subjected to the courts’ evaluation of which option is best for the child’s welfare, taking into account, inter alia, the relationship with the other parent. Re F (International Relocation Cases) [2015] EWCA Civ 882; Re C (Internal Relocation) [2015] EWCA Civ 1305. ↑

66. Linda Cusworth and others, Uncovering Private Law: Who’s Coming to Court in England? (Nuffield Family Justice Observatory 2021) 32. ↑

67. Information on the campaign and its impact can be found in Anne Barlow and others, ‘Cohabitation and the Law: Myths, Money and the Media’ in Alison Park and others (eds), British Social Attitudes – The 24th Report (Sage 2008). ↑

68. Anne Barlow and others, ‘Just a Piece of Paper? Marriage and Cohabitation in Britain’ in Alison Park and others, (eds), British Social Attitudes: The 18th Report – Public Policy, Social Ties (Sage 2001). ↑

69. This term describes the widespread tendency for couples to assume that, although relationship break-ups are common, their own relationship will not encounter difficulties. See Anne Barlow and Janet Smithson, ‘Legal Assumptions, Cohabitants’ Talk and the Rocky Road to Reform’ [2010] Child and Family Law Quarterly 328. ↑

70. Ibid 335. ↑

71. As proposed in Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307, 2007) and campaigned for by Resolution, the membership organization for family justice professionals. ↑

72. Barlow and others (n 67) 43. ↑

73. Barlow and Smithson (n 69) 339. They estimated that up to 25% of cohabitants might fall into this category. ↑

74. Lynn A Baker and Robert Emery, ‘When Every Relationship is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage’ (1993) 17 Law and Human Behaviour 439. See also the research on cohabitant behaviours, cited above (n 67). ↑

75. Carol Smart and Bren Neale, Family Fragments (Polity Press 1999). ↑

76. Hunter and others (n 59). ↑

77. In accordance with FPR 12B PD 2.1. ↑

78. Excellent support and resources such as apps are provided through charities such as One Plus One and Gingerbread, in addition to family mediation and co-parenting coaching. ↑

79. Cass Sunstein, ‘On the Expressive Function of Law’ (1996) University of Pennsylvania Law Review 2021, 2035. ↑

80. For a summary see Rosemary Hunter, Adrienne Barnett and Felicity Kaganas, ‘Introduction: Contact and Domestic Abuse’ (2018) JSWFL 401, and the remainder of the Special Issue in which that piece appears. See also Hunter et al. (n 59). On inconsistent contact see Jane Fortin, Joan Hunt and Lesley Scanlan, Taking a Longer View of Contact: The Perspectives of Young Adults Who Experienced Parental Separation in Their Youth (University of Sussex/University of Oxford 2012). ↑

81. See Hunter et al. (n 59) for a summary of efforts to address the issue. ↑

82. See discussion at p 16 above. ↑

83. Jonathan Herring, Peter Harris and Rob George, ‘Ante-Nuptial Agreements: Fairness, Equality and Presumptions’ (2011) LQR 335; Radmacher (n 42) [137] (Lady Hale). ↑

84. Carol Smart, Feminism and the Power of Law (Routledge 1989). ↑

85. Diduck (n 6) 293 and 312. ↑

86. Smart and Neale (n 75). ↑

87. Hunter and others (n 80) 412. ↑

88. As outlined in Brenda Hale, ‘Equality and Autonomy in Family Law’ (2011) JSWFL Law 3, 10. ↑

89. ibid 12, as cited by Diduck (n 6) 314. ↑

90. Sunstein (n 78) 2045. ↑

91. (n 3). ↑

92. Eekelaar (n 3) 7. ↑

93. The couple’s extensive campaigning and their legal case, R (Steinfeld and Anor) v Secretary of State for International Development [2018] UKSC 32, brought about the Civil Partnership (Opposite-sex Couples) Regulations 2019, which amended the Civil Partnership Act 2004 to include opposite-sex couples. ↑

94. Such groups are thought to have influenced the decision to introduce a presumption that involvement of both parents will further the child’s welfare into the Children Act 1989 through the Children and Families Act 2014, notwithstanding that the government-appointed Family Justice Review panel advised that such a presumption should not be introduced: Family Justice Review: Final Report (Ministry of Justice 2011). ↑

95. Maclean and Eekelaar (n 1). ↑

96. Leanne Smith and Emma Hitchings, ‘Where the Wild Things Are: The Challenges and Opportunities of the Unregulated Legal Services Landscape in Family Law’ (2023) Legal Studies 658. ↑

97. People are more likely to report using unregulated services to help them resolve a family problem than any other type of legal problem: James Harvey and Sam Williams, ‘Unregulated Legal Service Providers: Understanding Supply-side Characteristics’ (Economic Insight, April 2016) <https:// www.economic-insight.com/2016/06/28/report-unregulated-legal-service- providers-understanding-supply-side-characteristics/ > accessed 5 January 2025, 4–5 and 33–35. ↑

98. See n 27. ↑

99. Previoulsy known as Separated Parents Information Programmes. Judges may direct parents to attend these under Children Act 1989, s 11A. See Leanne Smith and Liz Trinder ‘Mind the Gap: Parent Education Programmes and the Family Justice System’ (2012) Child and Family Law Quarterly 428. ↑

100. Resolution, a membership organization for family lawyers, has also piloted Family Matters Guides— lawyer-mediators who give legal information (as opposed to tailored legal advice) to couples, along with holistic support to help them reach agreement: Christine Skinner ‘One Lawyer Acting For Two Clients: Implications Arising from an Experimental Practice Model “Family Matters”’ (2019) Journal of Social Welfare and Family Law 265. ↑

101. The Resolution Code of Practice, for example, requires member solicitors to seek to reduce conflict, and FPR emphasize the value of non-court dispute resolution. ↑

102. Barrister-led service, The Divorce Surgery, appears to have blazed the trail here in 2018 Nick Hilborne, ‘National Firm Backs Trend to Offer Single Lawyer Divorce Service’ (Legal Futures, 17 February 2022) < https://www.legalfutures.co.uk/latest-news/national-firm-backs-trend-to-offer-single-lawyer-divorce-service> accessed 5 January 2025, with Resolution launching the Resolution Together model now followed by multiple law firms in 2022. ↑

103. See for example, amicable [sic], the online divorce service that offers to lead couples through divorce ‘amicably and without lawyers’, promising to focus on the legal, logistical and emotional dimensions of separation. ↑

104. For example, research has revealed that ‘emotional readiness’ is a key factor in the ability of separating couples to engage effectively with mediation of their disputes and a likely driver of many litigated disputes: Barlow et al (n 26) p 6. ↑

105. See discussion of cohabitation above. ↑

106. For example, the online resources provided by Advice Now and the information and practical support provided by Support Through Court, both funded through the Government’s Litigants in Person Support Strategy, which later became the Legal Support for Litigants in Person Grant. See Ministry of Justice, Legal Support: The Way Ahead – An Action Plan to Deliver Better Support to People Experiencing Legal Problems (Cp 40, 2019). ↑

107. Advice Now, for example, is the public facing arm of Law For Life which describes itself as a PLE body. ↑

108. On the importance of addressing the emotional dimension of family disputes through resources, see James Greiner, Dalie Jiminez and Lois Lupica, ‘Self-Help Re-Imagined’ (2017) Indiana Law Journal. ↑

109. As detailed in Bonnie Hough, “Self-Represented Litigants in Family Law: The Response of California’s Courts” (2010). The Circuit. Paper 52. ↑

110. Ana Cipric and others, ‘Cooperation After Divorce: An RCT Study of the Effects of a Digital Intervention Platform on Self-Perceived Stress’ (2020) Psychosocial Intervention 113–123. ↑

111. ibid p 116. ↑

112. Personal Social Health and Economic education is delivered in all state-funded schools. Relationships education was made a compulsory component of this education by the Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019, introduced under the Children and Social Work Act 2017, ss 34-35. ↑

113. The resources can be accessed here: https://www.exeter.ac.uk/research/groups/law/frs/projects/workingoutrelationships/ (accessed 10 July 2024). See Anne Barlow and others, Transforming Relationships and Relationship Transitions with and for the Next Generation: The Healthy Relationship Education (HeaRE) and Healthy Relationship Transitions (HeaRT) Project Report and Key Findings (Wellcome Centre for Cultures and Environments of Health 2022) <https:// www.exeter.ac.uk/v8media/universityofexeter/ collegeofsocialsciencesandinternationalstudies/lawimages/ familyregulationandsociety/pdfs/ The_Healthy_Relationships_Project_Report__and_Key_Findings.pdf> accessed 5 February 2025. ↑

114. Barlow and others (n 26). ↑

115. Smith and Hitchings (n 96) 675. ↑

116. Bush and Folger (n 20) 6. ↑

117. ibid 5, discussing, inter alia, Owen M Fiss, ‘Against Settlement’ (1979) Yale L.J. 1073 and Laura Nader, ‘Disputing Without the Force of Law’ (1979) Yale L.J. 998. ↑

118. Carol Smart, ‘Divorce in England 1950–2000: A Moral Tale?’ in Sanford Katz, John Eekelaar and Mavis Maclean (eds), Cross Currents: Family Law and Policy in the US and England (Oxford, OUP 2000) 376. As cited in George, Thompson and Miles (n 33) 158. ↑

119. The Family Law Act 1996 sought to introduce a new procedure for divorce, which would include a built-in period for reflection and consideration, and information sessions that appeared strongly geared towards encouraging reconciliation. It was never implemented, ↑

120. John Eekelaar, ‘Family Law: Keeping Us “On Message”’ (1999) Child and Family Law Quarterly 387, 391. ↑