definition of family

Previously, in Gammans v. Ekins, the Court of Appeal held that the defendant who was not married to the tenant could not be considered as a “member of the tenant’s family” in the “ordinary, popular sense of the word”. Meaning to say, marriage was seen to be the deciding factor of whether a family exists.

However, a wider approach was taken in Fitzpatrick v. Sterling Housing Association. The House of Lords by a majority of three to two held that a gay couple could be deemed to be a family for the purposes of the Rent Act 1977. Lord Slynn suggested that the determining factors were “that there should be a degree of mutual inter-dependence, of sharing of lives, of caring and love, or commitment and support.” The same rationale was adopted in Mendoza v. Ghaidan.

From this, we can see that courts are adopting more of the function-based approach in defining family and although the decision in Fitzpatrick and Mendoza were made in the context of the Rent Act 1977, it does have a great impact in family law.

Nevertheless, it will be misleading to say that courts only take the function-based approach. For e.g. if a couple are married, they will be regarded as family even though they may not perform functions of a family. Also, even if the functions of a family are present, it does not guarantee that the courts will hold that a family exists. For e.g. in Joram Developments Ltd v. Sharratt, although the functions of a family were being carried out, the House of Lords was not willing to say that the man and woman were members of a family.

Based on the above discussion, we can see that the courts in defining “family”, adopts both the formalist approach and the function based approach. But evidently, they are moving more towards the function based approach and this is the right direction in which courts should be moving as this allows courts to focus on the family structure as a whole and consequently reflect changing social trends and attitudes.

Law and morality is always seen to be interconnected. However, they are not identical. What is legal may not be morally correct and what is moral may not be legal. For e.g. there could be unjust laws which are immoral. Telling lies to parents is immoral but it is definitely not enforced legally.

In my opinion, the law should focus on reflecting changing conceptions instead of focusing on dictating certain moral standards.

Firstly, this is because morality is generally a very grey area. What is seen to be immoral to one maybe perfectly moral to another. While on the other hand, laws should be clear and is in place for the benefit of the majority. Thus, if the majority of people perceives a certain matter to be acceptable, for example, transsexualism as a recognised medical disorder; and cohabitation as a norm, the law should in fact mirror that that perception. After all, laws are made by the people for the people.

Also, UK’s family law is very much based on a set of assumptions “deeply mired in an ecclesiastical past”. Professor O’Donovan has criticized that if we hold on to the traditional approach, it will result in “the institutionalization of discrimination and justice”. Thus, if the law continues to dictate certain moral standards, for e.g. the outdated perception that transsexualism being immoral, transsexuals will definitely be discriminated by the law.

However, to a large extent, the law has indeed changed to acknowledge changing social trends and attitudes by reflecting changing conceptions instead of dictating certain moral standards. The passing of the Gender Recognition Act 2004 and the Civil Partnership Act 2004 clearly shows this.

In conclusion, we can see from the above discussion that the legal definition of family has to a large extent changed to acknowledge changing social trends and attitudes. Nevertheless, the definition of family will still have to evolve to protect the “most vulnerable members” of a family- the children. As Dame Elizabeth has noted, it will not only depend on the “justice system” but also on the “wider community” in order for it to work.

Word Count

991 words.

Bibliography

Books

Curzon, L B, Family Law, (1st ed. 1995), Cavendish Publishing.

Standley, Kate, Family Law, (4th ed. 2004), Palgrave Macmillan.

Herring, Jonathan, Family Law, (3rd ed. 2007), Pearson Education.

Probert, Rebecca, Cretney’s Family Law, 5th edition, 2003, Sweet and Maxwell.

Articles

Mr. Justice Munby, “Families old and new – the family and Article 8” (2005) 17 4(487) CFam. 22 pages.

Internet Sources

Butler-Sloss, Dame Elizabeth, “Are we failing the family? Human rights, children, and the meaning of family in the 21st century” <http://www.dca.gov.uk/judicial/speeches/dbs030403.htm>

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