Legal Constructions of ‘Family,’ ‘Family Life,’ and ‘Families’

Understanding the concept of family is crucial, as various areas of law intersect with family life, including taxation, immigration, insurance, and social security. However, defining what constitutes a ‘family’ in legal terms is complex and varies depending on the context.

Defining ‘Family’ in Law

There is no single, universally accepted legal definition of ‘family.’ Instead, different definitions are applied depending on the specific legal context.

Office for National Statistics: Definition of ‘Family’

The Office for National Statistics defines a family as a “married, civil partnered, or cohabiting couple with or without children.” This definition heavily emphasises the presence of children and is largely centred on the concept of a sexual or conjugal family unit.

David Archard’s Perspective on ‘Family’

Philosopher David Archard defines a family as a group of individuals where adults assume custodial roles concerning dependent children. However, this definition raises critical questions: Should a family be defined by the presence of children? When children leave home, does the family cease to exist?

Gillian Douglas: The Power of Definition

Legal scholar Gillian Douglas highlights the challenges in defining a family, noting that definitions carry significant power. She argues that the concept of family is continually evolving, closely linked to societal changes.

Approaches to Defining Family

Various approaches exist in attempting to define the concept of family, each with its advantages and limitations.

Formalistic Definition

A formalistic approach to defining a family relies on identifying certain observable traits that can be objectively proven, such as the presence of children or a marriage. This approach provides clarity and ease of proof but can become overly technical. It raises the question of whether a group that functions as a family should be denied legal recognition if they do not meet these formal criteria.

Function-Based Definition

A function-based approach defines a family based on the roles or functions a group of people perform. This perspective shifts the focus from what a family is to what a family does. However, this approach is not without controversy. There is debate over whether a family needs to fulfil all or just some functions, and what those functions should be. Critics argue that this approach overlooks essential elements such as values, memories, and identity, which are not easily captured by the mere actions of a family.

Alison Diduck (2011): Intimacy, Interdependence, and Care

Alison Diduck, a legal scholar, proposes that a family is characterised by a relationship involving some degree of intimacy, interdependence, and care. This definition moves beyond rigid legal constructs and acknowledges the emotional and relational aspects of family life.

Idealised Definition

Some argue that a workable definition of family may not exist. Instead, an idealised concept of family could be provided, allowing individuals to determine for themselves what family form works best for them. This approach avoids stigmatising non-traditional family structures but faces criticism for its lack of objectivity, which can make it difficult to implement in legal and policy frameworks.

Legal Definitions in Practice

Various legal statutes illustrate the complexity and variability in defining family:

• Section 2 of the Domestic Abuse Act 2021

• Section 1 of the Inheritance (Provision for Family and Dependants) Act 1975

• Section 17 of the Children Act 1989

These statutes often place children at the centre of the family concept, potentially excluding other family forms.

• Section 113 of the Housing Act 1985
This statute’s definition of family can be somewhat exclusionary, highlighting the challenge of creating inclusive legal definitions.

The Importance of Family in Society

The Family and Childcare Trust (2016) emphasises that strong and stable families are crucial for society, contributing significantly to individual, community, and national well-being.

Judicial Perspective: LL v Lord Chancellor (2017)

In the case of LL v Lord Chancellor (2017), Lord Justice Jackson acknowledged the demanding and emotionally taxing nature of family law cases. This underscores the importance and complexity of the legal constructs surrounding the family.

Conclusion

The legal definition of family is multifaceted and continues to evolve alongside societal changes. Whether through formalistic, function-based, or relational approaches, the concept of family remains central to many areas of law. However, the power of definitions and their implications cannot be understated, as they shape not only legal outcomes but also societal norms and values.