Gender and English Family Law Flashcards
3 key questions surrounding gender, religious and cultural diversity and family law?
1) To what extent is family law gendered?
2) Does family law effect men and women differently?
- >HOW?
3) To what extent are gender relations challenged i family law scholarship?
Who highlighted the importance of feminist perspective on family law?
DIDUCK and O’DONOVAN 2006
What did DIDUCK and O’DONOVAN 2006 say on feminism and family law?
‘Bring to light ways in which legal regulation of private family relations are also about regulation of socio-political relations: the nature and value of dependence and independence, the balance of social and economic power and the part the law plays in this regulation’
Most commonly accepted definition of marriage?
HYDE v HYDE 1866
- Voluntary union of one man and one woman to the exclusion of all others’
What is the basic legal principle of marriage?
- Can be created legally by anyone eligible with appropriate capacity to do so
- Both parties must comply with all the formal requirements
5 main feminist critiques of marriage?
i) Public/private control -> encourages subordination of women
ii) Ideological underpinnings the exact opposite of feminism
iii) Is a patriarchal institution (strongly rejected by Baroness Hale)
iv) Pre-2013 excluded same-sex couples
v) Not enough variation of marriage types
Definition of a Civil Partnership?
CPA 2004
s1(1) = a relationship between 2 people of the same sex
(a) Which is formed when they register as civil partners
Key differences between marriages and civil partnerships?
- In the formalities there is no mention of any form of religious connotation
- Does this grant parallel but different rights?
How can rights of civil partners be said to be parallel but different to those granted to spouses?
1) Share all characterstics, save name and slightly different formalities
2) ‘Civil Partnerships aimed at same-sex couples who cannot marry. We continue to support marriage and recognise it is the surest foundation for opposite-sex couples raising children’ - BARONESS SCOTLAND
What did Baroness Scotland say about the aims and perceptions of civil partnerships?
‘Civil Partnerships aimed at same-sex couples who cannot marry. We continue to support marriage and recognise it is the surest foundation for opposite-sex couples raising children’
How have discussions around marriage/civil partnership been underpinned by the idea of traditional nuclear families?
‘Stable couple form is good for the individual, the couple and society (both socially and economically). Living outside of this form is inefficient and costly and breakdown of the relationship form is too. As a consequence, long-term stable relationships become the socially preferred option for government’
STYCHIN
Who argued that long-term stable relationships are preferred by government on a social and economic basis (saves time and money)?
STYCHIN
How about relationships in contemporary society?
Increasing emergence of the ‘post-modern family’
See STACEY and DAVENPORT 2002
How did STACEY and DAVENPORT explain the idea of a post-modern family?
It ‘represents no new normal family structure, instead an irreversible condition of family diversity, choice, flux and contest. The sequence and package of [family life] is no longer predictable. Now there is no consensus on form a ‘normal’ family should assume, so every family is an ‘alternative’ family’
Who argues about the contemporary unpredictability of family life meaning there is no longer consensus on what a normal family is = post-modern family structure
STACEY and DAVENPORT 2002
What are the central debates on mother hood?
- Autonomy
- Agency
- Ownership of women’s bodies
What is meant by autonomy/agency?
Very subjective, take translocational positional approach = many different voices/experiences/identities
What is the debate around women’s choices?
Idea that women must have ‘choice’ in order to take control of their own lives -> what does choice mean?
How did KANT describe choice, as relatiing to women having choice in order to control their own lives?
‘A person is capable of rational choice through exercising his or her own moral judgement, governed by moral law’
What are the key debates around becoming a mother?
1) Abortion and right to ‘choice’ vs pro-lifers (Ireland 8th Amendment repeal May 2018!!)
2) Surrogacy and motherhood
Why is surrogacy an issue in motherhood?
- Giving birth and being a mother are not mutually inclusive
- There can be such thing as a ‘refusing mother’
Re AB (CARE PROCEEDINGS) 2003
Re AB (CARE PROCEEDINGS) 2003
Idea that there is such a thing as a refusing mother
Key considerations surrounding fathers/fatherhood?
1) How should C live after separation
2) F’s and post-separation contact
3) Are M’s over favoured in family courts?
4) Are male voices being ignored?
New groups that have emerged for F rights?
Justice 4 Fathers
Families Need Fathers
What are the aspects of the traditional view of a ‘father in law’?
i) heterosexual
ii) family breadwinner
iii) authority figure
Challenged by contemporary narrative
What are the 2 solutions to domestic violence in law?
1) Civil
2) Criminal
What are the issues with criminal remedies to domestic violence?
- Victim will often fail to call the police
- Police have a general negative attitude towards domestic situations
- The relationship between victim and perpetrator is complex -> not uncommon to drop charges
- Victim is often in a very difficult situation
Where are the civil remedies to domestic violence found?
FAMILY LAW ACT 1996 PART IV
- Never passed
Case that highlighted the weak and complicated nature of statutory provisions on domestic violence?
RICHARDS v RICHARDS 1984
RICHARDS v RICHARDS 1984
LORD SCARMAN
- Hotchpotch of enactments of limited scope passed into law to deal with specific situations
- Sooner the range, scope and effect of these powers is rationalised into a comprehensive and coherent body of law the better
What was stated about DV in 1992 LAW COMMISSION REPORT 207
- Not simply a legal issue that can be corrected
- Social/psychological issue that requires fundamental changes to society
- Legal remedies only ever tackle symptoms
Present day approach to DV
Increasing focus on male vitctims
Who’s research suggests the high levels of male victims of DV?
DOBAIH 2004
What did GORDON 2003 comment about the current state of criminal justice system and DV?
‘Men feel criminal justice system is heavily stacked against them… All too often this means that when a man has to defend himself and this defence any level of violence, then he himself becomes the perpetrator’
Who argued that men feel unable to defend themselves against DV because they risk being viewed as the perpetrator
GORDON 2003
Who’s research has suggest that levels of male victims of DV is on the rise
DOBIAH 2004
