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Published online by Cambridge University Press: 02 January 2018
Much family law scholarship in recent years has been focused on the recognition of different types of family relationship. Often, the rationale for the grant of rights and duties to new forms of relationship is said to be because the parties have shown commitment, or the same degree of commitment, as those in formally recognised unions, such as marriage. But there has been relatively little consideration of why or how commitment can provide an adequate rationale for the imposition of legal consequences, in particular, legal obligations, especially when such commitment may be lacking on the part of one of the parties, or comes to an end. This paper explores the meanings of obligation and commitment within the family and questions whether commitment provides a necessary or sufficient justification for the imposition of legal obligations in family relationships.
I am very grateful to the Leverhulme Trust for funding the Major Research Fellowship that enabled the research for this paper to be undertaken. I would also like to thank colleagues who attended the Family Law Section at the SLS 2015 Annual Conference in York for their helpful comments on this paper.
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25. Schedule 7, Pt 1. Oddly, it remains a criminal offence persistently to refuse or neglect to maintain oneself or a person whom one is liable to support (which is now limited to one's spouse or civil partner and not one's children): Social Security Administration Act 1992 s 105.
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27. Matrimonial and Family Proceedings Act 1984, amending Matrimonial Causes Act 1973 s 25 and inserting s 25A.
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36. Cf Scotland. The Family Law (Scotland) Act 1985 ss 1, 2 permit a child to bring an action for aliment against the parent (or step-parent) and the Child Support Act 1991 s 7 permits a child aged 12 or over to seek a maintenance calculation against the non-resident parent where no such application has been brought by the person with care or non-resident parent.
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38. Contrary to the view of Baroness Hale, who argued that the father's ‘common law obligation’ has never been abolished, in R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48 [2006] 1 AC 42 at [69].
39. Described by Wikeley, above n 20, as conceptually distinct from the Poor Law, since the illegitimate child was a filius nullius: p 47.
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41. For authoritative discussion of the genesis and operation of the Act up to 2006, see Wikeley, above n 20; for a summary of subsequent developments, see Lowe, N and Douglas, G Bromley's Family Law (London: Butterworths, 11th edn, 2015) pp 800–825.CrossRefGoogle Scholar
42. Child Support Act 1991 s 3(1)(2).
43. Where the child lives in a shared care arrangement, the amount of child support may be reduced and where the time spent is equal, there is no liability under the Act: Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677) reg 50.
44. Department of Social Security (DSS) Children Come First: The Government's Proposals on the Maintenance of Children Cm 1264, October 1990, vol 2, p i.
45. Child Support Act 1991 s 6. Failure to cooperate without showing good cause would result in a reduction to her benefit payment: s 46.
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54. Section 8(1)(3).
55. [2005] UKHL 48 [2006] 1 AC 42.
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59. Garrison, above n 26, p 834.
60. As Wikeley, above n 20, pp 66, 279–280, points out, the position in Scotland is different, with a clear statutory obligation to the child in both private and child support law.
61. The detailed provisions are discussed in N Lowe and G Douglas, above n 41, pp 820–824.
62. Including, for these purposes, the Civil Partnership Act 2004.
63. Section 27. The equivalent provision under the Civil Partnership Ac 2004 is Sch 5 Pt 9 para 39(1). Similar provisions are contained in the Domestic Proceedings and Magistrates’ Courts Act 1978.
64. A ‘child of the family’ is defined as (a) a child of both spouses or civil partners; and (b) any other child … who has been treated by both of those parties as a child of the family: Matrimonial Causes Act 1973 s 52, as amended.
65. The duty is placed on the other party to the marriage, constituting an exception to the usual principle that only a legal parent has the liability to maintain, but the court must have regard to whether there is a parent available to support the child in the first instance: 1973 Act s 27(3A), 25(4); 1978 Act s 3(3), 7(5).
66. When the child support regime was first introduced, the formula used to calculate the amount to be paid also included elements taking account of the financial position of the parent with care, suggesting the same approach, but subsequently, this was abandoned as part of the attempt to simplify the formula.
67. 1978 Act s 2(1)(c)(d); 1973 Act s 27(6)(d)(e)(f).
68. 1973 Act s 27(6A); 1978 Act s 20(12)(b). Section 20A(1) also allows the child to apply for an order made by the magistrates but which has ceased to have effect because he or she has reached the age of 16 to be revived.
69. Family Law Reform Act 1987 ss 12–17.
70. Children Act 1989 Sch 1 para 16(2). As under the matrimonial jurisdictions, the step-parent must be, or have been, married to or in a civil partnership with, a parent of the child and have treated the child as a child of the family.
71. Sch 1 para 4.
72. J Finch and J Mason, above n 51. For a critique, see Miller, D ‘What is a relationship? Is kinship negotiated experience?’ (2007) 72(4) Ethnos 535.CrossRefGoogle Scholar
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74. Ibid.
75. Ibid, pp 18–19. Finch, above n 21, pp 154–177, elucidates a further set of guidelines drawing on previous research literature, including the relationship between the parties in terms of genealogy; the quality of their relationship; and the extent of prior mutual assistance.
76. Ibid, p 60.
77. Ibid, pp 61–62.
78. It also endorses the view of Regan, above n 31, pp 26, 190, that obligations between spouses grow ‘from the accretion of experience in a relationship of interdependence’. They ‘make a host of subtle contributions and sacrifices in reliance on continuation of a shared life together’.
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82. Section 36(6)(e), amended by s 2(2) of the Domestic Violence, Crime and Victims Act 2004.
83. Section 41.
84. Re M (handicapped child: parental responsibility) [2001] 3 FCR 454 at 479b.
85. Re H (Minors)(Local Authority: Parental Rights)(No 3) [1991] Fam 151, 158; Re S (Parental Responsibility) [1995] 2 FLR 648 at 652–657; Re M (Parental Responsibility Order) [2013] EWCA Civ 969 [2014] 1 FLR 339 at [15].
86. Lord Chancellor's Department Consultation Paper on the Procedure for the Determination of Paternity and the Law on Parental Responsibility for Unmarried Fathers (1998) p 59.
87. Department of Work and Pensions (DWP) Joint Birth Registration: Recording Responsibility, June 2008, Cm 7293 at para 8. The duty was included in the Births and Deaths Registration Act 1953 s 2A, inserted by Sch 6 para 4 to the Welfare Reform Act 2009, but has not been brought into force.
88. See, for example, the report from the Centre for Social Justice, Fully Committed? How a Government Could Reverse Family Breakdown (2014), which at no point explains what it means by ‘committed’ relationships.
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93. Ibid, p 94.
94. This work is drawn on in particular by Lewis, above n 91 and Barlow et al, above n 81.
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99. Although these factors could be relevant to private negotiation or to a court-based determination of liability.
100. See also Giddens, above n 89, Modernity, p 98; Fineman, above n 18, pp 139, 304; Garrison, above n 26, pp 826, 828.
101. See eg R Tennant et al Separating from Cohabitation: Making Arrangements for Finances and Parenting, DCA Research Series 7/06 (2006); Douglas, G et al A Failure of Trust: Resolving Property Issues on Cohabitation Breakdown (Bristol: School of Law/Cardiff: Cardiff Law School, 2007).Google Scholar
102. As Smith, above n 7, suggests, the basis of such restitution is the broad principle of reciprocity: p 64.
103. As in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 [2006] 2 AC 618. See Law Commission (Law Com No 307) Cohabitation: The Financial Consequences of Relationship Breakdown (2007).
104. Eekelaar, J ‘Are parents morally obliged to care for their children?’ (1991) 11(3) Oxford J Legal Stud 340.CrossRefGoogle Scholar See also Ferguson, above n 13; Wikeley, above, n 20, p 36; Altman, S ‘A theory of child support’ (2003) 17(2) int J Law, Pol & Fam 173.CrossRefGoogle Scholar
105. Garrison, above n 26, p 828.
106. See eg the Divorce (Financial Provision) Bill 2015–16 and note the criticism of the lack of judicial discretion under Scottish law by Lord Hope in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 [2006] 2 AC 618, [101]–[121].
107. See eg M Fineman , above, n 18; Herring, J Caring and the Law (Oxford: Hart Publishing, 2013).Google Scholar
