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Goodie, Jo; Summerfield, Tracey --- "What's in a Name? Family Identity and Social Obligation" [2002] UWSLawRw 9; (2002) 6(1) University of Western Sydney Law Review 210


WHAT'S IN A NAME? FAMILY,
IDENTITY AND SOCIAL OBLIGATION

Jo Goodie and Tracey Summerfield[*]

Introduction

What’s in a name? This is an article about how naming, in law as in other fields of the social sciences, makes possible ways of thinking and acting, underwriting social norms. Essentially, it is not an article about the philosophy of language but a paper about the connotations of law and how this links to the nature and performance of social obligation. We ask the question, does family law, as currently framed in Australia, reflect the nature of social obligation? In suggesting that it does not, we argue that family law firstly, limits possibilities for alternative family models which are developed on notions of social obligation as opposed to traditional notions of familial relationship and secondly, establishes a hierarchy of relationship legitimacy. We proceed to suggest ways in which law can best be framed to reflect the nature, as opposed to forms, of domestically based relationship.

Social and scientific conditions allow a range of domestic relationships beyond the standard nuclear or extended family form (carer and dependent, step families, blended families, companions, collectives of like minded friends, surrogate and baby) (McDonald 1995, Silva and Smart 1999). They are relationships that cannot necessarily be defined in terms of two adults sharing a household, or being the parents of the same children, or a sexual, genealogical or biological bond. They may possess one or more of those features, but some other more prescient aspect of their association may still define the relationship. Silva and Smart, in their theorising about the ‘new family’ have observed that ‘it is interesting that a new vocabulary is not in fact emerging to deal with these new relationships. Rather what seems to be happening is that the notion of family is being stretched to cover everything’ (Silva and Smart, 1999: 10). The need for a new vocabulary is critical in a legal as well as a social sense.

The stretching of the notion of family to describe a multiplicity of domestic formations is inevitable and suggests a progressive society which enables individuals to organise relationships, their 'families' as they wish. But the extension of the language of family, without a reconceptualisation of what it means to be family, is problematic in law. It does not necessarily make for very good law. What do we mean by good law? It is not law which simply endorses social orthodoxy. Good law is permissive of multiple social norms and permits inclusion from beyond the paradigm. The law of family is stretched to cover those models that look like ‘traditional’ family, but not those that don’t. Therefore, ‘family law’, as we have come to know it, is unable to be particularly responsive to the ways in which people actually live, the multiplicity of relationships that are family like in nature, but which do not fit the dominant mould. Collier has observed, in his work on the legal construction of fatherhood, that in our legal understanding of family there is an:

all too common slippage into a normative model of heterosexual family life (something which is, in any case, becoming increasingly untenable in the face of demographic changes and the fracturing of heternormativity inherent in the new democratic family ideal itself) (Collier 2001: 536).

In Australia our legal construction of family is historically situated in the hetronomormative nuclear family model anticipated by the Family Law Act 1975 (Cth) (FLA), one which privileges marriage, a hierarchy which has flowed on to state regimes. As the New South Wales Law Reform (NSW) Commission notes in its discussions of unfair treatment of de facto relationships:

[t]he [NSW] Commission acknowledged that issues arising in de facto relationships were similar to those that arose in marriage, and that the law treated de facto couples unfairly ... However, the Commission regarded marriage as being on a higher plane than other relationships. Consequently, the provisions in the recommended new [NSW] statutory scheme gave more limited rights to de facto couples that were available to married couples under the Family Law Act 1975 (Cth) (2002: 114).

Overview of the legislative regimes in Australia

The leading legislation pertaining to family relationships in Australia is the FLA federal legislation which finds its power under placita 51 (xxi) and (xxii) of the Australian Constitution; that is, marriage, and divorce and matrimonial causes, respectively. The scope of the Commonwealth power is therefore limited to the parties of a marriage;[1] by implication, excluding the parties of de facto marriages and any other domestic relationships. The states (except Western Australia, where a parallel system has been established) and territories have referred power to the Commonwealth in relation to matters pertaining to children. The effect is that the Commonwealth also has power to legislate in relation to children of de facto marriages and has done so under the FLA. The property provisions, however, remain limited to parties of a marriage.

The Australian states have sought to address the limited scope of the FLA by creating their own state-based regimes.[2] These have historically mostly applied to heterosexual, de facto marriages of a minimum period of time. [3] Hence, domestic relationships legislation in Australia, other than the Australian Capital Territory (ACT) version, have applied to relationships that replicate an idealised version of the married norm: heterosexual, cohabiting couple.[4] We are pleased that this trend is shifting. Recently, in incremental moves, state legislation has been extended to same-sex de facto marriages and in some jurisdictions to cohabiting non-couples. For example, in NSW the definition of domestic relationship is a de facto relationship, as well as 'a close personal relationship...whether or not related by family, who are living together...' (s5 Property (Relationships) Act 1984), recognising non-couples, as long as they co-reside. In Western Australia, however, recent amendments have largely retained the old distinction of cohabitation couple, notwithstanding that this couple can be heterosexual or same-sex.[5] Nevertheless relationships such as share-housing, extended family (except in NSW) or non-cohabiting ‘couples’, remain, in most jurisdictions, unrecognised as legal 'family' and instead are relegated to civil jurisdiction; that of the public non/family sphere. A fundamental problem is that these jurisdictions retain a focus upon the look of the relationship rather than on its characteristics.

The ACT legislation, on the other hand, defines 'domestic relationship' differently. The Domestic Relationships Act 1994 (ACT) (DRA) extends jurisdiction to:

a personal relationship (other than a legal marriage) between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other, and includes a de facto marriage.[6]

Further clarification is provided at s3 (2) which provides that a 'domestic relationship' can include non-cohabiting relationships but does not include a relationship marked only by the provision of service for a fee or reward or through a charitable organisation.

In short, in determining its application, the ACT legislation replaces consideration of ‘family’ form with characteristics of the relationship. Family is defined by reference to its practices, rather on the basis of whether it is headed by a couple, or whether they cohabit, or the question of sexuality.

The New South Wales Law Reform Commission has noted the importance of 'recognising and respecting the diversity of relationships' and the need to reject 'any express or implied hierarchy of relationships' (2002: 2.12). We believe that this is the key to understanding the value of the ACT legislation.

The power of the word

So what does this have to do with the name; with 'family law' so coined? According to Saussure, the father of continental semiotics, language pre-exists ideas.

Without language, thought is a vague, uncharted nebula. There are no pre-existing ideas, and nothing is distinct before the appearance of language. (1959: 81)[7]

Rather than thought defining language, language defines thought. It provides category and structures into which thought can be organised. Interpretation occurs and meaning is derived through the marking of difference, what is ascertainable from that which it is not. For Saussure meaning is not inherent in the sign, but derives from the relation between signs (1959: 116-120). According to the legal philosopher Davies, this principle is reflected in law which 'set[s] up distinctions between certain areas and elements of itself' such that 'we are continually working at defining the boundaries of an area of law...what is ‘inside’ and what is ‘outside’ its limits' (1994: 257). Language, generally, and the language of law, specifically, limits possibilities of thought; we are limited in what we know, in our ability to characterise ideas, by the language we have available to us, by access to words to describe these ideas and through which categorisation and ordering may occur.

This has a flow-on effect to social practice. Dennis Patterson, in his work on legal interpretation, explains the relationship between meaning and practice thus: '[m]eanings do not spring from interpretations but from action - ways of using signs (linguistic and otherwise)' (1993:49-50). He criticises accounts of semiosis as individual acts, instead arguing that practice reflects the intersubjectivity of semiosis. It is Patterson’s view that the 'only way for any semiotic activity to get off the ground is for people to use words [or other signs] in the same way; that is, to have a practice. Once a practice is established, meaning is something one finds in the practice' (29). In other words, meaning (the word) and practice are mutually constitutive. Just as language defines ideas, it defines practice. If, in dominant discourse, family has a limited significance, this translates to a similar limit in practice, and vice versa, at least in a legitimate sense. This is not to say that ‘alternative’ communities have not reinterpreted ‘family’, but these constitute marginal usages of the term and the attached practices are marked as deviant.[8]

In law in particular, the name is everything. For the word's denotation at least, and quite likely its connotation as well, is not by reference to possible community perceptions or by virtue of the subjective test in law, unless the legislation so dictates, but by reference to the terms of the statute. In the case of the FLA, the central family law regime in Australia, lawful family is marked. The legitimate family, at least for property matters, is one determined through marriage. In the case of children's matters, whilst application is not limited to parties of a marriage, a close reading of the provisions indicates a concern with family constituted through marriage as well as the privileging of biological or adoptive child/parent relationships.[9] It is this family that is legitimate, centre, proper in so far as the law exists within dominant significatory systems. The States and Territories (a notable exception is Western Australia) have introduced legislation to deal with the margins[10] - by their nature they are residual, developed to pick up the shortfall of the FLA. Their definitions of relationship are linked to that which is omitted from the core of family law. They mark that which is different from family as centre, usually by virtue of non-marriage but also non-heterosexuality, though some have not gone so far as to name the latter as even peripheral legal domestic relationships. The FLA and its family are central; alternative bodies of legislation are marginal, just like the relationships they regulate. Those excluded from the alternative bodies of legislation, such as same-sex relationships in some jurisdictions, ‘non-couple’ relationships in all jurisdictions except NSW and ACT and non-cohabiting relationships in all jurisdictions except for the ACT, are relegated outside of the margins - into the wilderness of legal non-recognition.

What is it that marks family from other social relations (neighbours, workmates, and so on)? Is it simply that there is law framed upon this particular type of relationship, bestowing certain obligations upon the parties. We consider this question with a view to socio-legal scholars, Eekelaar (2000), Finch (1994) and Silva and Smart (1999), before turning to consider whether the FLA adequately represents the nature of family life in Australia. Finally we reflect upon the legal possibility for legitimising a range of families, one that does not mark inside from outside and which is permissive of a multiplicity of norms, rather than stretching a dominant norm to permit paradigmatic inclusions. We think the DRA is potentially an optimal body of legislation because it recognises close relationships beyond those which are simply marriage like and/or based upon cohabitation. The focus of the legislation is on a much more fluid conception of relationship. It allows people who consider themselves to have or to have had a real ongoing commitment of a personal and domestic nature to another person a legal process which supports the mutual obligations and responsibilities that flow from that relationship and provides a forum for resolution of any disputes.[11]

The nature of family

We try here to clarify what it is that makes ‘family’ family, coming to the conclusion that it is more than just a question of form, despite what the FLA might suggest. In view of the diversification of family formations, Silva and Smart identify family as coming to signify 'the subjective meaning of intimate connections rather than formal, objective blood or marriage ties' (1999: 7). What remains at the core of family, in light of these changes, is 'the sharing of resources, caring, responsibilities and obligations' (Silva and Smart, by reference to Irwin, 7). It is a question of what family does rather than what it is. Yet despite these observations of the new 'family', public discourse on family remains centred on traditional paradigms, linked to biology and form rather than notions of obligation, care and responsibility.

Silva and Smart suggest the need to find a new vocabulary for the variety of intimate relationships - 'new arrangements such as 'families of choice', parenting across households, single parent families, step-families, and many more' (1999: 9-10, references omitted). We would add non-cohabiting couples, extended family formations and friends who share domestic life. Despite the 'stretching of the concept of family' a new language is not, in fact, emerging to describe these new relationships, (Silva and Smart 1999: 10) at least not in the public arena. They are simply marked as 'not-family' at worst, alternative family at best. Without an inclusive language of family, at least until the term family itself becomes inclusive in its connotations, the lives and practices of alternative formations remain marginalised, outside of that which is 'properly' coined family. Hence while the practice of family diversification exists, the legitimisation of these families remain marginal.

And so, although people are doing family in a multiplicity of ways, the language of family remains focused on a traditional form and manner of relationships. Family continues, we assert, to signify 'formal, objective blood or marriage ties' (Silva and Smart 1999: 7) despite the actuality of a diversity of models, based upon practice. It has come to be known in terms of model, rather than characteristics. This is reflected in law.

Much of jurisprudence has been concerned with the connection, if any, between social norms and legal rules.[12] Eekelaar (2000), in his essay on the relationship between social obligations, family law and the responsible citizen, offers an explanation of the interaction between social norms and law. He considers that law has the power to support, subvert, tolerate, weaken or destroy social norms (Eekelaar, 2000: 16). We think Eekelaar endows law an agency which, while cognisant of social norms, operates almost independently of them. While not disputing that law has the cultural authority to both privilege and undermine social norms, we argue that, just like social norms, the law as a process (rather than simply a set of rules) is reflexive. In being reflexive neither necessarily proceeds or acts as a foundation for the other. Within the terms of the historical, material and cultural moment, law and social norms inform each other, react to one another, limit one another and produce one another.

Despite describing them as distinctive domains, Eekelaar nevertheless acknowledges that 'in practice social rules may be as significant as legal rules. They may provide equal, or even more compelling, motives for action' (Eekelaar, 2000: 15-16). He says this is particularly so in the context of the ‘normal chaos’ of family law (2000: 16, citing Dewar 1998). For example, the absence of a legal rule does not necessarily Eekelaar suggests that the social obligation in family derives from a developed sense of obligation, which does not necessarily flow simply from biological relationship (Eekelaar, 2000: 19, citing Finch and Mason, 1993). This suggests that moral responsibility is linked to the possibility of a variety of courses of action and cannot be programmed (Finch, 1994: 69-70). We can not conveniently tie social obligation to concrete categorisations such as biology or family form. As Eekelaar suggests in his discussion of child support obligations imposed on non-resident biological parents, 'the close legal identification of the obligation with biology has the appearance of a norm imposed' (Eekelaar, 2000: 19). A legal norm imposed does not equate to good law because it does not reflect social norms, which is based upon obligation. Instead it asserts a moral standard, different from the concept of moral responsibility of which Eekelaar speaks, marking the legitimate from the illegitimate.

In a similar vein, Finch, in a project which analyses 'what place we accord to morality in understanding family relationships,' (1994: 63) argues that British, and some American, empirical research demonstrates that people choose to support one another, accept moral responsibility for one another, and recognise their mutual social obligations for a variety of reasons. A kinship or close familial relationship produces the circumstances within which people are likely to develop close personal feelings, or sense of reciprocity, or hierarchical obligation, which she observes, research shows are at the heart of mutual support (1994: 79). Finch concludes that, 'in family life there appear to be very few issues upon which there is a clear consensus at a general level about the right thing to do' (1994: 75). She also argues that 'legal rights and obligations are not the same things as the moral obligations in practice' (1994: 65). Even in the heteronormative family, where obligations and duties seem to be readily identifiable they are, nevertheless

open to considerable negotiation in practice ... [t]he outcome of those negotiations will be an interplay between, on one hand, ideas about moral obligations derived from the
wider culture [which includes law] and, on the other hand, very personal assessments about the circumstances of one’s own relatives (Finch, 1994: 65).

We take two points from Finch. The first is that the law needs to allow space for people to be able to attempt some equation between their legal obligations and their sense of '[t]he proper thing to do' (Finch: 1994: 63).[13] The second point we make following Finch’s analysis is that while heteronormative families may provide opportunity for people to form the sort of attachments and feelings which produce a sense of mutual moral or social obligation, other alternative forms of domestic relationships may also be productive of feelings and bonds which generate a moral obligation to offer ongoing support for another person.

What the FLA attempts to do is to assert legal obligation on the basis of biology and form, not necessarily the nature of the social obligation. Instead, what is needed is legislation which reflects the nature, fluidity and problematics of social obligation, something which permits people to construct their own arrangement of social obligation. This suggests that, for us, the role of law should be to support functional social norms, rather than assert a legal rule. The search is akin to Patton's suggestions of

a legally and politically open-ended space of possibilities for action, a space of becoming that allows for the non-selfidentical character of individual and collective agents (1995: 162).

The quest is to devise a body of legislation (constitutional issues notwithstanding) which permits 'openness or the continuous play of possibilities' (Patton, 1995: 162). We think that the DRA is such a body of legislation and could be used as a model for a national jurisdiction. Despite its existence as legislation which is marginal to the FLA it has, by nature, the potential to permit the self-identification of family, on the basis of individual or local-community-based parameters. It is premised on practices rather than form or formality, social obligation rather than model, represented as legal rules. It permits the acknowledgment of diversity, as centre rather than as marginal. The DRA supports Silva and Smart’s call for:

the need for many forms of family experience to be supported by policy frameworks in order to enhance autonomous choices in living arrangements. But for this to happen it is necessary to take seriously fluidity and changes in family arrangements, rather than seeing change itself as something dangerous and undesirable (Silva and Smart 2000: 14).

The scope in terms of family form is unlimited, so long as the content of the relationship, that is, the degree of 'personal or financial commitment and support', is such to mark it as a 'domestic relationship'. Jenny Millbank in her analysis of matters heard under the DRA in relation to same-sex couples, calls the legislation’s 'shift away from the ‘marriage-like’ state'... towards the more flexible and inclusive criteria of emotional and financial interdependence', a paradigm shift (2000: 164). While the word is not family, the DRA legally acknowledges that something like family exists whenever people have a social, familial obligation towards each other. The next step, we would argue, is that the term 'family' in law similarly become embedded with its social reality.

People form, or are born into, an indefinite number and variety of personal relationships throughout their lives. Given the complexity and diversity of personal relationships, there cannot be one law that deals comprehensively with all personal relationships: various laws regulate different aspects of different relationships in different ways. The focus of some laws is to recognise the financial dependence or interdependence between partners to a relationship, while other laws are more concerned with emotional connection. The most obvious examples are the laws that govern property and asset distribution on the breakdown of a marriage or similar relationship. Other examples extend far beyond the sphere commonly understood as 'family law'. Being in a personal relationship may attract certain legal consequences ... Those consequences may differ depending on whether the parties to the relationship are married or in a de facto relationship (referred to here as a partner relationship), and whether the parties are of the same or opposite sex. The consequences may differ again for people who are not in partner relationships, but are in other close personal relationships, such as siblings and parents and children (NSW Law Reform Commission 2002: 2.3).

Conclusion

We have drawn attention to the significance of legislation termed 'family' law in legitimising particular domestic models by designating them as family. In doing so, we acknowledge the fluidity of connotation, arguing for models of legislation which similarly permit such fluidity. The DRA is, we argue, such a model, permitting a public conceptualising of 'family' outside the dominant paradigm suggested by the FLA. Such reconceptualisation is indicative of relationship based upon social obligation rather than social model.

This is not simply a question of permitting legal remedies although this is clearly important. It is also about permitting, indeed enabling, us to conceive of ‘family’ and family relations in terms that are meaning to families. For Eekelaar what is meaningful for families is social obligation, however that obligation might be derived. According to Finch, families are constructed according to notions of moral responsibility derived from a combination of the personal assessments of the parties and broader cultural norms. And so, like Silva and Smart, we argue the need to expand the (legal) vocabulary of family in order, firstly, to recognise the uniquely personal nature of family formation and, secondly, to legitimise the nature these alternative models as family. This is possible if we devise family law in terms of the actual performance of the social, rather than as a narrow idealisation of the social.

References

Collier, R. (2001) ‘A Hard Time to Be a Father?: Reassessing the Relationship Between Law, Policy, and Family (Practices)’, Journal of Law and Society 28(4): 520-45.

Davies, M. (1994) Asking the Law Question. Sydney: Law Book Company.

Finch, J. (1994) ‘The Proper Thing to Do’ pp. 63-98 in J. Eekelaar and M. Maclean (eds) Family Law. Oxford: Oxford University Press.

Irwin, S. (1999) ‘Resourcing the Family: Gendered Claims And Obligations And Issues of Explanation’ Ch 3 in E. Silva and C. Smart (eds) The New Family. London: Sage Publications

Millbank, J. (2000) ‘Domestic Rifts: Who is Using the Domestic Relationships Act 1994 (ACT)?’, 14 AFLJ 163

McDonald, P. (1995) Families in Australia: A Socio-Demographic Perspective. Melbourne: Australian Institute of Family Studies

NSW Law Reform Commission Discussion Paper 44 (2002) 'Review of the Property (Relationships) Act 1984 (NSW)

Patterson, D. (1993) ‘The Poverty of Interpretive Universalism: Toward the Reconstruction of Legal Theory’, 72 Texas Law Review 1

Patton, P. (1995) ‘Post-Structuralism and the Mabo Debate: Difference, Society and Justice’ pp. 153-171 in Wilson and A. Yeatman (eds) Justice and Identity Antipodean Practices. Sydney: Allen and Unwin

Parkinson, P. (2002) 'NSW Law Reform Commission – Discussion Paper on Property and Domestic Relationships', 16 AFLJ 78

Silva, E. and Smart, C. (1999) ‘The ‘New’ Practices and Politics of Family Life’ Ch 1 in E. Silva and C. Smart (eds) The New Family. London: Sage Publications.

Saussure, F. de. (1959) Course in General Linguistics. New York: Philosophical Library


[*] Jo Goodie is a lecturer in law at the School of Law, Murdoch University. Tracey Summerfield is a part-time lecturer in law and doctoral candidate at the School of Law, Murdoch University.

[1] The FLA’s jurisdiction is, in fact, 'matrimonial causes' (s29 (1)). This is defined, as 'proceedings between the parties to a marriage' (s4). The leading case on the definition of marriage, upon which the Marriage Act 1961 (Cth) is founded is Hyde v Hyde & Woodmansee (1866) LR 1 P&D 130 which (at 133) defines marriage as 'the voluntary union for life of one man and one woman, to the exclusion of all others'. This constitutional history necessarily limits the concept of family. Our preferred model therefore, depends upon either constitutional reform or the referral of powers by the States.

[2] All, that is, except Western Australian. The Western Australian amendments to the States Family Court Act 1997, the first to acknowledge de facto relationships in West Australian family law, were awaiting proclamation as at 25 September 2002.

[3] For example, the South Australian legislation applies to 'the relationship between a man and a woman who, although not legally married to each other, live together on a genuine domestic basis as husband and wife': s3 De Facto Relationships Act 1996 (SA). The Tasmanian legislation applies to ‘de facto relationship' which is defined as 'the relationship between a man and a woman who, although not legally married to each other, live together on a genuine domestic basis as husband and wife'; Section 3(1) De Facto Relationships Act 1991 (NT) is similarly framed. See also: s275 Property Law Act 1958 (Vic) until amended in 2001 (Statute Law Amendment (Relationships) Act 2001) to include same-sex cohabiting couples; s3(1) NSW Property (Relationship) Act 1984 until amended in 1999 to extended jurisdiction to more broadly defined 'domestic relationships', though one of the defining criterion is cohabitation between the parties.

[4] There is no requirement that married couples cohabit to attract the jurisdiction of the FLA. Ironically, then, the ‘de facto’ regimes put in place a more conservative construction of ‘family’ than the FLA itself.

[5] Family Court Amendment Bill 2002 (WA) Sch. 1 s2, proposed amendment of Interpretation Act 1984 (WA). There are proposals to amend the Tasmanian provisions to include same-sex relationships. The specific content is unclear.

[6] s3(1)

[7] Saussure F de (1959) Course in General Linguistics New York: Philosophical Library

[8] Recent debates in Australia surrounding the right of single women and women in same-sex relationships to legal access to reproductive technology at a federal level, as well as the 'pro-family' movements that have mobilised around the legal recognition of same-sex relationships in Western Australia, are evidence of the marginality of differently formed families, despite the diversity of actual practice. The term 'family' may well be appropriated by marginal discourses but the usage remains just that in dominant discourse.

[9] This is indicated by, for example a distinction throughout Part VII of the FLA between 'parents' and 'any other persons' or 'other people' when the inclusive 'any persons' could be used: eg. s65C, s65G, s60B (2), s68F. The distinction suggests a privileging of the biological or adoptive parent/child relationship. In fact, s65G requires that the Court should not make a residence order in favour of a non-parent without certain conditions being satisfied.

[10] De Facto Relationships Act 1984 (NSW); Property Law Act 1958 (Vic), De Facto Relationships Act 1996 (SA); De Facto Relationships Act 1991 (NT); Domestic Relationships Act 1994 (ACT).

[11] This is a factor highlighted by the NSW Law Reform Commission in looking at increasing the flexibility and inclusiveness of the NSW legislation (2002: 2.67). The 1999 NSW Amendments go some way to opening the categories of ‘family’: see note 3, above.

[12] Natural law theorists, positivists and law and social context theorists have all, in differing ways, grappled with the relationship between social norms and legal rules, to whatever effect.

[13] The move toward facilitating private dispute resolution ‘in the shadow of the law’ is in some measure a recognition of this ideal.


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