Obligation and commitment in family law

Obligation and commitment in family law Douglas, Gillian Hart Publishing, 2018 The ties that bind? Family change and individual commitment To have and to hold A clean break Cant Pay? Wont Pay Parenthood is for life Who cares? The law of family obligations.

Introduction

Family law faces a fundamental tension, as the state seeks to regulate personal relationships—formed, maintained, and dissolved in private, emotional spaces—through legal mechanisms These intimate relationships are ideally driven by love and commitment, not by enforceable laws Historically, legal scholar Milton Regan noted that family members often have a relational identity that could be undermined by legal intervention, reflecting a view that too much legal intrusion risks disrupting the natural bonds of family.

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A Diduck’s work in *Law’s Families* (2003) examines the evolving concept of family, drawing on J Gillis’ categorization from *A World of Their Own Making* (1997) She discusses how the definition of 'family' has expanded over time, leading to greater inclusivity This broader definition has increased responsibilities for those now included within the family unit, reflecting shifting societal and legal perceptions of familial roles and obligations.

6 D Morgan, Rethinking Family Practices (Basingstoke, Palgrave Macmillan, 2011) 4–5.

7 But for the view that family relationships are governed by obligation rather than preference, see R Abbey and D Den Uyl, ‘The Chief Inducement? The Idea of Marriage as Friendship’

The article references key philosophical works, including a 2001 publication in the Journal of Applied Philosophy that explores the ethical dimensions of duty and volition Additionally, it examines early political philosophy through V Kahn’s 1999 article, “The Duty to Love,” which analyzes the relationship between passion and obligation in domestic relationships within early modern political theory These sources collectively highlight the intricate connection between personal duty, emotional obligation, and political values.

Two notable exceptions in the discussion of love are Katherine O’Donovan, who explores the concept in her work ‘Love’s Law: Moral Reasoning in Family Law,’ highlighting its significance within family law governance (D Morgan and G Douglas, eds., *Constituting Families: A Study in Governance*, Steiner, 1994) Additionally, John Eekelaar examines ‘brotherly love’ in the context of family law and personal relationships, as detailed in his book *Family Law and Personal Life* (Oxford University Press, 2006), and further discusses the broader themes of friendship and love in his article ‘Family law and love’ published in 2016 These works underscore the nuanced role of love within legal and familial frameworks.

Extensive research highlights how lawyers often work to mitigate their clients’ reliance on emotional appeals during family dispute resolutions Notably, A Sarat and B Felstiner’s work, "Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process," explores the dynamics of legal professionals’ efforts to constrain clients’ expressions of feelings, emphasizing the influence of legal power in shaping dispute outcomes This literature underscores the importance of understanding the interplay between emotions and legal strategies in family law cases.

1995), J Eekelaar et al, Family lawyers: the divorce work of solicitors (Oxford, Hart Publishing,

The recognition of clients’ emotions is crucial in achieving effective resolution in family and divorce contexts, as failure to acknowledge these feelings can hinder progress (H Reece, Divorcing Responsibly, Oxford, Hart Publishing, 2003; S Day Sclater and C Piper, eds., Undercurrents of Divorce, Ashgate, 1999) Family can be understood as a variety of intimate units, including romantic partnerships, parent/child relationships, kinship, and caring connections, or as an ideological concept—the ‘family we live by’ rather than ‘with’—as Alison Diduck suggests Additionally, some theorists view ‘family’ not as a noun but as an adjective representing practices or as a verb, emphasizing how individuals actively ‘do’ family The common assumption is that family members care for one another out of sentiment, rather than obligation imposed by law.

Lawyers and legal commentators typically avoid discussing love and affection in family law, as these emotions are seen as outside the traditional scope of legal regulation Sociologists like Carol Smart also caution against studying love directly, viewing emotions as primarily within the realm of psychology The unpredictable and uncontrollable nature of love, along with the negative emotions and behaviors that may follow its loss—often requiring legal intervention—explain why the legal field prefers to focus on more rational concepts Consequently, in legal, political, and philosophical discussions, love is often reframed as ‘care,’ highlighting the practical aspects of emotional support and responsibility in law, as exemplified by Jonathan Herring's argument that law centers on enforcement within caring relationships.

11 J Herring, Caring and the Law (Oxford, Hart Publishing, 2013) 2.

13 For the view that the law should promote kindness, rather than love, see Eekelaar ‘Family law and love’ (n 8).

14 See, eg, S Bandes (ed), The Passions of Law (New York, New York University Press, 1999).

15 For a moral/metaphysical analysis, see S Fitzgibbon, ‘Marriage and the Good of Obligation’ (2002) 47 American Journal of Jurisprudence 41.

16 Smart (n 2) 66–68 See ch 2 for the demographic picture.

Caring involves the voluntary act of performing actions driven by love, emphasizing genuine dedication However, Smart observes that society often values care only when it requires work, self-sacrifice, and endurance—collectively seen as commitment In the legal context, this tendency is less criticized because law struggles to define, recognize, or promote love, making the focus on sacrifice and obligation more prominent.

Law frequently regulates emotional expression, exemplified by criminal offenses against the person and divorce based on adultery It serves as a mechanism to regulate caring within families through core obligations outlined in family law These obligations are understood in both legal terms—relating to rights and remedies to address harm—and sociological terms—serving as social norms guiding behavior and attitudes The key question addressed is how effectively law has been utilized to promote and sustain caring relationships within the family Additionally, Smart’s concept of ‘commitment’ highlights its role in fostering enduring familial bonds.

The concept of ‘commitment’ has evolved from being viewed as a binding obligation—akin to a burden that cannot be avoided—to encompassing promises or dedications to a particular plan or belief that can later be relinquished This shift is highlighted in discussions countering the notion that declining marriage rates and increasing cohabitation reflect a decline in commitment In family policy, commitment is often understood as an emotional bond between individuals in intimate relationships, serving as the basis for legal responsibilities such as child support and property sharing.

19 See, for a full review of this literature, Herring (n 11).

20 C Gilligan, In a Different Voice: Psychological Theory and Women’s Development

(Cambridge, MA, Harvard University Press, 1982).

21 S Clark Miller, ‘Need, Care and Obligation’ (2005) 57 Royal Institute of Philosophy

23 J Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy and Law

(New York, Oxford University Press, 2011) 22.

24 While noting that some feminist scholarship argues that ‘care’ is incompatible with duty since it ignores or negates the emotions necessary to act in a ‘caring’ way: see Miller (n 21) at 143–44.

This book examines how evolving perceptions of ‘commitment’ influence our views on legal obligations to care for family members It also explores the extent to which law should regulate family life, reflecting broader societal changes in the understanding of family responsibilities and legal roles.

An ‘Ethic of Care’

The recognition of caring as a central aspect of family life has led to extensive literature emphasizing the importance of an ‘ethic of care’ in family law, politics, and moral philosophy Carol Gilligan’s foundational argument highlights that a complete understanding of morality must include a ‘moral voice’ focused on responsibility and relationships, alongside rights and justice.

Sarah Clark Miller emphasizes that care ethics centers on the moral significance of needs, highlighting four key themes: particularity, which focuses on the individual in their unique context; dependency, acknowledging that everyone relies on others at different life stages; interdependence, recognizing mutual dependence and the influence of relationships, as Jennifer Nedelsky notes that we are both shaped by and shape our interconnected relationships; and need, emphasizing that although needs vary among individuals, everyone experiences them Miller justifies the moral obligation to meet needs through Kant’s duty of beneficence, asserting that practical acts of love and kindness are essential in addressing the needs of others.

25 To similar effect, see J Eekelaar, ‘Are Parents Morally Obliged to Care for Their Children?’

26 See eg C Smart and B Neale, Family Fragments? (Cambridge, Polity Press, 1999) ch 6;

J Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (London, Routledge,

28 J Tronto, ‘Women and Caring: Or, What Can Feminists Learn About Morality From Caring?’ in S Bordo and A Jaggar (eds), Gender/Body/Knowledge (New Brunswick, NJ, Rutgers University Press, 1989).

30 See eg C Smart, ‘The Legal and Moral Ordering of Child Custody’ (1991) 18 Journal of

Constitutive aspects of a person refer to conditions that must be met for an individual to exercise agency effectively When these conditions are unmet, it creates a moral obligation for those with the means to intervene with beneficence Addressing these fundamental needs is essential to enabling true agency and fulfilling our ethical duties towards others.

Gilligan’s argument, based on experimental psychology, suggests that men and women respond differently to moral dilemmas, often being interpreted as gendered moral perspectives While feminist empirical research has both supported and challenged the existence of such gender differences, the conceptual distinction between ‘care’ and ‘justice’ remains valuable for understanding diverse viewpoints and experiences of men and women in family relationships This framework effectively highlights how notions of ‘responsibility’ and ‘rights’ shape moral reasoning within familial contexts The question of why a general duty of beneficence is primarily entrusted to family members is further explored in section VI.

Meanings of ‘Care’

Obligation as Duty

An obligation is a moral or legal requirement that compels a person to perform a specific duty, often enforced through legal agreements It represents a duty or responsibility to fulfill a commitment, such as performing a service or returning a favor In essence, an obligation involves being bound morally or legally to act, ensuring that certain actions or promises are upheld Whether through contracts or moral duty, obligations create a sense of indebtedness, where one is responsible for providing a service or favor in return for something received.

The concept of obligation therefore suggests something that is imposed upon the person, possibly against his or her will or preference 39 Hart regarded

"Obligation" and "duty" are often considered synonymous, though their usage can vary depending on context Generally, "obligation" is associated with contractual duties, while "duty" relates more to tort law Neil MacCormick distinguished these concepts by suggesting that obligation arises from relationships, such as between parent and child, whereas duty pertains to roles or positions Despite this subtle difference, MacCormick acknowledged that in everyday language, these terms are frequently used interchangeably, a practice reflected throughout this book.

The dictionary definition of ‘responsibility’ centers on the ability or authority to act or decide, emphasizing decision-making over the binding nature of the obligation For example, John Eekelaar's argument highlights that ‘parental responsibility’ in the Children Act 1989 signifies that responsibility for a child lies with the parents, not the state, and this responsibility extends beyond mere duty While Alison Diduck suggests that family law's purpose involves determining responsibilities among individuals, families, and the community, this interpretation conflates responsibility with obligation, which can be contested for oversimplifying the concept.

According to Hart, an obligation, at least in relation to obeying the law (rather than obligation to another person), derives not from ‘feeling obliged’

48 There is, of course, an enormous literature For discussion of sanctions and coercion, see

F Schauer, ‘Was Austin Right After All? On the Role of Sanctions in a Theory of Law’ (2010)

The concept of Ratio Juris is essential in understanding the foundation of legal norms and their legitimacy E Yankah’s article, ‘The Force of Law: The Role of Coercion in Legal Norms’ (2007–2008), published in the University of Richmond Law Review, emphasizes the significance of coercion in reinforcing legal authority Additionally, J Gardner’s work, ‘Nearly Natural Law’ (2007), in the American Journal of Jurisprudence, explores the internal aspects of rules and their connection to natural law principles, providing a comprehensive perspective on the nature of legal rules and their moral underpinnings.

S Delacroix, ‘You’d Better be Committed: Legal Norms and Normativity’ (2009) 54 American

49 S Smith, ‘The Normativity of Private Law’ (2011) 31 OJLS 215 at 231, 232.

Rules are often obeyed through the threat of sanctions for non-compliance, but they also stem from an acceptance that certain behaviors are governed by social standards to be followed by the group as a whole Hart explained that social rules are seen as imposing obligations when conformity is strongly demanded and social pressure on deviators is high He noted that the conduct required by these rules often benefits others but may conflict with personal desires In advanced legal systems, the acceptance of rules as common standards can be separate from passive compliance, reflecting a deeper internalization of societal expectations Despite critiques challenging Hart’s views on threats, coercion, and the internal nature of rules, his theory helps explain observable behaviors in private family law.

In family law disputes, individuals such as divorcing spouses or non-resident parents often face legal obligations like property sharing or child support, which they may accept in principle but seek to justify why they cannot fulfill them These obligations are typically imposed without the individual's active consent, sometimes necessitating enforcement measures to ensure compliance Legal scholar Stephen Smith argues that court orders serve as the "voice of conscience" for those reluctant to act, acting as mandatory instructions to motivate fulfillment Many family law cases rely on court orders or official directives to guarantee that legal obligations are met, highlighting the importance of enforcement mechanisms in ensuring compliance.

Developing relationships in the public domain can create ethical challenges, especially if disputes arise over compensation for acts of friendship or care Such situations may lead to moral and legal issues, as highlighted in Chapter 7 of "Ethics in the Public Domain" by J Raz, where the complexities of friendship care and the potential for claims for recompense are thoroughly examined.

But equally, as MacCormick noted, it does not follow that because one will be bound by an obligation against one’s will, one cannot also choose to be so bound:

Opting in commits individuals to specific conduct requirements rooted in important values, which are often outlined in rules Once a person has opted in, they cannot unconditionally withdraw from these obligations, as the act of opting in inherently involves accepting certain essential standards These minimum requirements must be fulfilled regardless of personal preferences, underscoring the binding nature of the decision to opt in.

He distinguished between promise-incurring obligations, where the person’s intention is to create a legal duty, and act-incurring obligations, which stem from performing an act that naturally gives rise to obligations For example, marriage can be seen as a promise-incurring obligation, while having a child is an act-incurring obligation Joseph Raz highlights that personal obligations, such as those between friends, are voluntary and arise spontaneously from relationships rather than explicit promises or consent These obligations develop naturally through ongoing interactions and relationships, not solely through formal acts of promise.

There is an overlap between this idea of a voluntary obligation and the concept of commitment that is important in the context of the family, as I discuss in section V.

MacCormick highlights that the term "obligation" is often used to describe normative relationships between people, such as the obligations of a parent, which imply both a specific relationship and required actions Recognized family relationships like those between spouses or parent and child inherently carry these normative duties, but societal norms and understandings of family are evolving amidst increasing diversity in family structures and behaviors This diversity complicates consensus on the specific content, beneficiaries, and duties of these obligations.

53 M Maclean and J Eekelaar, The Parental Obligation (Oxford, Hart Publishing, 1997)

6 See also, L Ferguson, ‘Family, Social Inequalities, and the Persuasive Force of Interpersonal Obligation’ (2008) 22(1) International Journal of Law, Policy and the Family 61.

Obligation as Remedy

Mavis Maclean and John Eekelaar have argued that it is necessary to dis- tinguish between direct and indirect legal obligations 53 They contrast a law

This article explains that a husband's duty to support his wife constitutes a 'direct obligation,' which provides the wife with a legal remedy to enforce this support In contrast, the state's recovery of contributions from the husband for benefits provided due to his failure to support represents an 'indirect obligation,' where no direct remedy is available to the wife Maclean and Eekelaar highlight that offering a remedy emphasizes the relationship between duties and rights, underscoring family law’s remedial function Understanding legal obligations as remedies is essential, as core family law duties are primarily recognized and enforced through remedies when they are unmet.

Family relationships entail various legal obligations, categorized as positive or negative Positive duties include spouses living together and providing mutual financial support, as well as parents maintaining and sharing caregiving responsibilities for their children Conversely, negative obligations involve refraining from behaviors that make it unreasonable for a partner or child to continue the relationship, such as not acting in ways that cause harm or neglect These duties reflect the fundamental roles of care and protection within families but also extend beyond family members, as anyone in close proximity must avoid causing harm, governed by principles of tort and criminal law.

Spouses have a clear obligation of fidelity, meaning they must not commit adultery, which is discussed in the context of shared duties such as cohabitation and maintenance rather than as a standalone duty This focus exists because addressing adultery often involves the law of divorce, which pertains to ending a marriage, rather than the ongoing obligations within the marital relationship.

54 Any remaining marital duty to cohabit is no longer directly enforceable: see ch 3.

55 And now, vice versa: see ch 4.

The wife's right to maintenance, as well as the non-resident parent's or child's right to contact, are considered 'primary rights' that stem directly from the familial relationship The 'secondary right' — the right to a legal remedy due to non-performance of these duties — is essentially linked to the fulfillment of the primary rights.

R Chambers, ‘Integrating Property and Obligations’ in A Robertson (ed), The Law of

Obligations: Connections and Boundaries (London, UCL Press, 2004) 139.

58 J Finch and J Mason, Negotiating Family Responsibilities (Abingdon, Routledge, 1993).

For the purposes of this book, my interest instead is in those obligations where the duty and the remedy for its breach is (or perhaps was) 54 identical

The obligation of a husband to support his wife was legally enforced by mandating that he provide her with maintenance Additionally, a caregiver preventing a non-resident parent from contacting their child is required to facilitate access, ensuring the child's right to contact is upheld Importantly, breaches of these duties are addressed through enforcement measures of the duties themselves, rather than through monetary compensation, which would be appropriate in cases of tortious acts or contractual non-performance.

The Nature of Family Obligation

Obligation as a Social Norm

Empirical evidence indicates that the flexibility and indeterminacy of family obligations are not necessarily weaknesses, but rather reflect the contingent and subjective nature of how family members experience and perceive their responsibilities While much discussion has focused on the legal aspects of family obligations, understanding the social context is crucial for interpreting how family behaviors and emotions influence legal mechanisms The research by Janet Finch and Jennifer Mason provides valuable insights into family perspectives on obligation, extending beyond the nuclear family to include wider kin, and despite its age, remains relevant to contemporary studies on family dynamics.

78 See, eg, Matrimonial Causes Act 1973, s 25(2); Children Act 1989, s 1(3) These are discussed in chs 4 and 6.

Research shows that family members do not follow fixed 'rules of obligation' but are guided by flexible 'guidelines' based on a sense of obligation, which are often more about criteria than strict rules Finch and Mason describe these as 'procedural' guidelines that help determine when offering assistance is appropriate, considering factors like legitimacy of need, limited effort, or skill required Responsibilities are especially significant between parents and adult children but are not automatic or unlimited, reflecting a nuanced approach to familial obligations This concept parallels modern family law's 'checklist' approach, which structures judicial discretion in matters like financial settlements and child support, highlighting the importance of morally relevant factors Legal systems tend to recognize certain issues over others, such as non-resident parents' limited likelihood of paying maintenance when contact rights are denied.

79 N Wikeley, Child Support: Law and Policy (Oxford, Hart Publishing, 2006) 19, 484,

485, drawing on various studies in both the UK and other jurisdictions; Maclean and Eekelaar (n 53) 142.

80 See the discussion in Lowe and Douglas (n 62) 882–86, 897–903.

84 M Maclean and J Eekelaar, ‘Marriage and the Moral Bases of Personal Relationships’

In family law, issues such as matrimonial fault, the 'stellar contribution' of the breadwinner, and the source of wealth are often considered relevant by spouses, reflecting matters of significant importance to the parties involved Courts are tasked with taking into account 'all the circumstances' in each case, and while there is debate over whether additional factors should be included in checklists, these issues are central to negotiations Finch and Mason's research highlights that many of these significant factors are often addressed and potentially resolved through the negotiation process, emphasizing the importance of understanding what issues matter most to the parties.

Finch and Mason view negotiation not merely as reaching agreements to resolve disputes but as a ongoing process embedded within a family's history and context They emphasize that both explicit and implicit negotiations help kin develop evolving commitments to one another, fostering a sense of responsibility toward specific individuals over time This perspective highlights negotiation as a dynamic process that shapes family relationships and responsibilities gradually.

Obligations between spouses often arise from the history of their relationship and their mutual behavior, reflecting Regan’s view that they develop "from the accretion of experience in a relationship of interdependence" through subtle contributions and sacrifices made in reliance on shared life Studies by Maclean and Eekelaar support this perspective, showing that for some married individuals, marriage acts as an "external" source of obligation, while others see obligation as developing naturally over time or rooted in ethical principles like the golden rule This research underscores the importance of considering family and social context when understanding why legal enforcement of such obligations can be challenging.

85 See the multiple definitions given by the Oxford English Dictionary at www.oed.com/ view/Entry/37160#eid1166862080.

86 Other than when dealing with commitment—or committal—to prison for non-payment of maintenance or other non-compliance with a court order.

87 Horniman v Horniman [1933] P 95, 103 See ch 4, section III.B.

89 Interestingly, Arnold J (ibid, 60) stressed that this child’s father had died so that she was an ‘orphan’ (despite still having a mother), with no other source of support.

90 Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam), [2015] 1 FLR 745.

The Concept of Commitment

Finch and Mason described obligation between kin as a form of ‘developing commitments’ over time, and it was noted earlier that the meaning of

The concept of ‘commitment’ has evolved from a limited notion of financial or moral obligation to encompass dedication and allegiance to relationships or life plans, often formalized through explicit promises Modern commitment is characterized by a voluntary choice, distinguishing it from obligation, which is typically imposed This shift in meaning reflects changing social attitudes toward family and personal relationships, emphasizing individual autonomy and emotional self-fulfillment.

Commitment in Legal Discourse

i Commitment as Burden and Obligation

The legal language around financial commitments has expanded to encompass broader meanings, reflecting changes in societal understanding Traditionally, the term "commitments" referred to financial obligations or debts that limit an individual's freedom of action, especially in the context of marriage or post-marriage arrangements For instance, in Horniman v Horniman, the husband was described as having significant resources offset by substantial commitments, highlighting the impact of financial obligations Such commitments often arise from new relationships, as seen in Smethurst v Smethurst, where a man faced maintenance orders due to multiple marriages and children, and successfully argued that his existing financial commitments prevented him from fulfilling original payment levels Commitments can also relate to finances tied to business interests, exemplified by cases like Cooper-Hohn v Hohn, which involve substantial business enterprises impacting personal finances Understanding the evolving legal interpretation of commitments is essential for grasping how financial obligations influence legal decisions in family and commercial contexts.

91 Lambert v Lambert [2002] EWCA Civ 1685, [2003] Fam 103, CA at [5], [34].

93 Nicklin v Nicklin (CA, 15 May 1991), per Butler-Sloss LJ.

94 See, eg, McCartney v Mills McCartney [2008] EWHC 401 (Fam), [2008] 1 FLR 707; AH v PH (Scandinavian Marriage Settlement) [2013] EWHC 3873 (Fam), [2014] 2 FLR 251: wife’s earning capacity limited by childcare commitments; Daubney v Daubney [1976] Fam 267, CA;

Nicklin v Nicklin (CA, 15 May 1991): husband’s commitments to second family.

In Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, the court noted that approximately US$6 billion of wealth was generated during the marriage, with US$4.5 billion allocated to a charitable foundation Both spouses were recognized as having ongoing commitments to the business and the foundation, reflecting their significant contributions and enduring interests derived from their joint endeavors during the marriage.

The case of Cooper-Hohn v Hohn highlights that 'commitment' extends beyond financial burdens to include the allocation of time and effort toward various activities Traditionally, husbands are expected to dedicate their energy to work or business, which can limit the time they spend with their children, while wives' domestic and childcare commitments may restrict their ability to pursue paid employment In Lambert v Lambert, the husband’s commitment to his successful business contrasted with the wife’s claimed dedication as a homemaker and mother, emphasizing how homemakers often sacrifice their earning potential through their domestic commitments.

The idea that one ‘must’ spend time or effort, or pay one’s ‘dues’, reflects the moral element implicit in the essence of commitment as burden In

In Nicklin v Nicklin, both spouses had disabled children from subsequent relationships, creating significant emotional and financial commitments that stretched their resources Having commitments to family and children is increasingly recognized as a sign of moral worth and appropriate behavior among disputing parents Commitment is also understood as a promise and dedication to one’s family responsibilities, highlighting the importance of fulfilling these moral and emotional obligations.

When used as a verb or adjective, such as in "committing to" or "being committed to," the term emphasizes a conscious choice or promise made by an individual regarding a particular activity or relationship Legal cases like Miller v Miller and McFarlane v McFarlane highlight that the sharing principle in post-divorce property division stems from the notion that parties commit themselves to sharing their lives Additionally, in Granatino v Radmacher, Lady Hale emphasized the mutual commitment each spouse makes to support one another during marriage, underscoring the importance of commitment in maintaining marital bonds.

96 Granatino v Radmacher [2010] UKSC 42, [2011] 1 AC 534 at [187].

97 In the same way as MacCormick’s promise-incurring and act-incurring obligations, noted in section III.A.

100 GW v RW (Financial Provision: Departure from Equality) [2003] 2 FLR 108, [33]. continuing, and afterwards, where necessary to satisfy requirements which arose because of or during the marriage 96

Since the 1980s, legal thinking has evolved to recognize that commitment in intimate relationships can be implied through actions, even without an explicit marriage vow This shift initially focused on cohabitants and the rights that stem from their shared living arrangements, highlighting how courts considered applying property law principles from married couples to those cohabiting For instance, in Bernard v Josephs, concerning joint property with unequal mortgage contributions, Griffiths LJ emphasized the importance of actions in establishing commitment, reflecting a broader acceptance that emotional and psychological dedication can be inferred from conduct.

Many couples choose to live together without marriage to prioritize their independence and avoid the commitments associated with marriage Legal considerations require courts to carefully assess the nature of the relationship, determining whether it reflects the same level of commitment as a married partnership Only when a relationship is intended to involve the same degree of commitment as marriage can it be legally recognized as equivalent to a married couple.

As pre-marital cohabitation became increasingly common, the legal question emerged whether divorced spouses' financial provisions should be based on the length of the marriage or reflect the actual duration of their relationship Initially, courts rejected considering cohabitation periods alongside marriage, viewing them as separate, with Eveleigh LJ stating in Foley v Foley (1981) that “During the period of cohabitation the parties were free to come and go as they pleased.” However, by 2003, judicial attitudes had shifted, recognizing that cohabitation periods can validly influence financial provision decisions, as seen in GW v RW.

Equality), the judge, Nicholas Mostyn QC, firmly stated:

The law in this area is evolving to reflect changing social values, moving away from outdated notions Today, it is rare to see pre-marital cohabitation stigmatized as "living in sin" or lacking emotional commitment When a couple transitions seamlessly from cohabitation to marriage without significant changes in their lifestyle, it is unrealistic and artificial to treat these periods differently.

101 Although perhaps inevitably, ‘commitment’ (or its lack) may then become a matter of dispute between the parties: see, eg, Joy v Joy-Morancho (No 3) [2015] EWHC 2507 (Fam),

[2015] 1 FLR 815, [15], [84]: spouses disputing degree of ‘commitment’ prior to engagement.

102 Miller v Miller [2005] EWCA Civ 984, [2006] 1 FLR 151 at [33] The House of Lords upheld the award on different grounds.

103 Lambert v Lambert [2002] EWCA Civ 1685, [2003] Fam 103, CA at [10].

104 Re M (handicapped child: parental responsibility) [2001] 3 FCR 454 at 479b.

105 Re H (Minors)(Local Authority: Parental Rights)(No 3) [1991] Fam 151, 158.

106 Re G (Parental Responsibility Order) [2006] EWCA Civ 745, [2006] 2 FLR 1092 In fact parental responsibility was refused because it was not regarded as in the child’s best interests.

Commitment is a key characteristic that defines a relationship, justifying equal treatment similar to formal marriage In Miller v Miller, the Court of Appeal recognized that commitment can compensate for a short marriage by evaluating the emotional and psychological investment of the wife Additionally, commitment is often understood as ‘caring about’ a child, emphasizing the emotional bonds that underpin parental responsibilities.

In parent/child relationships, commitment often signifies emotional dedication and reflects the sentiment of caring about another person For example, in Lambert v Lambert, the husband was described as a “committed but frequently absent husband and father,” indicating that his commitment to his family was demonstrated through the lifestyle his wealth provided rather than his direct presence or daily involvement This highlights how emotional commitment can be expressed in different ways, such as financial support versus active engagement.

Black J emphasized that parental responsibility is not a reward for a father's involvement, but a court order made in the child's best interests Courts consider a father's degree of commitment when deciding whether to grant parental responsibility, especially in cases where the father does not have it through official registration For example, a father's persistent efforts to maintain contact with a child who has only lived with the mother and stepfather demonstrate his commitment and emotional attachment, influencing court decisions.

Parental commitment reflects a parent's dedication to establishing and maintaining a relationship, highlighting their suitability to act as a responsible caregiver This commitment is often used as a key factor in disputes over shared care and contact arrangements Demonstrating consistent involvement and genuine dedication can significantly influence legal outcomes in family custody cases.

107 Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18,

108 Re H (A Minor)(Shared Residence) [1994] 1 FLR 717, CA.

111 Home Office, Supporting families: a consultation document (London, Stationery Office,

Despite a father's belligerence and insensitivity, his consistent dedication to maintaining contact with his child demonstrated genuine motivation, indicating that a mother's fear of domestic abuse alone does not justify withholding direct contact However, there are cases where a parent's involvement becomes excessive; for example, in Re H (A Minor)(Shared Residence), the father’s obsessive and excessive commitment toward his 14-year-old child was considered inappropriate.

Commitment in Family Law Policy

The term ‘commitment’ has increasingly been understood and used as a promise or dedication within policy and legislation In the 1990s in England and Wales, the Conservative Government introduced reforms to family law remedies for domestic abuse, marking one of the first statutory references to ‘commitment’ Legislation aimed to preserve the institution of marriage by requiring courts to consider whether cohabitants had given each other the ‘commitment involved in marriage’ when making protective orders Subsequently, this requirement was softened to direct courts simply to consider ‘the level of commitment involved’ in the relationship, emphasizing the importance of partnership dedication in legal decisions.

Commitment, often understood as promise or dedication, is a key concept in political discourse, where parties and governments make manifesto commitments and emphasize their dedication to specific reforms For instance, the late 1990s Labour Government proposed extending the marriage notice period from one to fifteen days, claiming it would help couples consider the significance of marriage and understand their commitments more thoroughly Additionally, they aimed to promote more personalized civil wedding ceremonies to strengthen the understanding of commitment in marriage.

112 ibid, para 4.28 For the meaning attached to ‘commitment ceremonies’ by same-sex partners before the introduction of civil partnership or same-sex marriage, see B Shipman and

C Smart, ‘“It’s Made a Huge Difference”: Recognition, Rights and the Personal Significance of Civil Partnership’ (2007) 12 Sociological Research Online 31 January, also discussed in Smart (n 2) 67–77.

114 DSS, Children First: a new approach to child support, Cm 3992 (London, Stationery

116 In Home Office (n 111), for example, the Government also referred to people having family commitments and work commitments: paras 3.3, 3.5.

The Centre for Social Justice's 2014 report, "Fully Committed? How a Government Could Reverse Family Breakdown," discusses strategies to strengthen family stability However, it fails to clearly define what constitutes a ‘committed’ relationship, leaving the term ambiguous and open to interpretation Clarifying this definition is essential for developing effective policies aimed at promoting long-term, stable relationships Understanding the meaning of ‘committed’ relationships is crucial for informing government efforts to reverse family breakdown and support healthy family environments.

Howard Becker critically noted in 1960 that within sociological literature, the concept of commitment has often been treated as a primitive idea, introduced merely when needed without thorough explanation or analysis of its nature and validity.

Recognized ceremonies allow couples to publicly celebrate their commitment to each other, while baby-naming ceremonies serve as opportunities for parents to demonstrate their long-term dedication to their children These rituals reinforce social bonds and family commitments, highlighting the importance of publicly affirming significant life events within cultural contexts.

In such usage, the emotional and psychological dimensions of commitment are allied to a moral responsibilisation of the individual.

The Labour Government's initial approach to child support reform emphasized the crucial role of parental emotional commitment in promoting children's welfare They recognized that a strong emotional bond between parents and children is essential for ensuring positive development and well-being This focus highlighted the importance of fostering parental responsibility not only through financial support but also through emotional engagement.

Research indicates that children thrive best when they have two positive, committed parents, highlighting the importance of parental dedication Equating paying child support with demonstrating such commitment underscores its moral value and parental responsibility To promote fairness, it is essential to revise child support policies to acknowledge and support the commitments of fathers across both first and second families The new child support assessment formula recognizes that some fathers maintain a strong commitment to children in second families, ensuring more equitable treatment for all children regardless of their family structure.

So it is more even-handed towards first and second families.’ 115

Commitment as a Social Concept

The Rationale for Obligations Upon Family Members

This chapter examines why the general duty of beneficence, when interpreted through the ethic of care, primarily falls on individual family members rather than the state It explores the reasoning behind assigning caregiving responsibilities within families and questions why a family member has a right to receive care, given that rights are typically linked to obligations Understanding these dynamics highlights the moral significance of familial care and the responsibilities inherent in close relationships.

Fineman argues that care-giving benefits society as a whole, making the state the primary beneficiary and responsible for financing care work, rather than individual families She emphasizes that caregivers have the right to societal support, and providing resources for their work should be a collective responsibility Lucinda Ferguson supports this view, highlighting that the care deficit is structural, which requires extending obligations beyond family law to include employment, social care, and welfare policies Historically, care responsibilities have been primarily assigned to families, with the state stepping in only as a fallback However, the idea of collective state responsibility for care is challenging in today’s economic austerity and neo-liberal context, as Herring notes, because fully meeting the social debt of care would impose enormous costs on the state.

The Rationale for Obligations Upon Family Members 29

According to 140 S Altman in "A Theory of Child Support" (2003), the family remains the primary source of care for children However, the justification for this reliance extends beyond mere force of circumstances, prompting a deeper examination of the underlying principles supporting family-based caregiving This raises important questions about whether the traditional view of family as the primary caregiver is sufficient or if other social and legal factors should be considered Understanding these dynamics is crucial for shaping effective child support policies that prioritize the child's well-being while addressing the evolving role of families in caregiving.

Causation

Eekelaar argues that the moral obligation to care for a child does not stem solely from biological or legal parental ties Instead, this duty is rooted in the community's broader responsibility to address human needs and promote well-being Delegating caregiving to parents is seen as the most practical and socially effective way to fulfill these communal obligations.

This process aligns with parents' natural instincts and is typically well-executed, fostering a strong bond that plays a crucial role in shaping the child's sense of identity Additionally, it allows the costs of childrearing to be gradually integrated, reducing the financial burden on the adult household and making it an economically efficient approach.

Nick Wikeley emphasizes that children have a fundamental human right to receive child support that meets their essential needs, creating a duty for both society and parents, with the contribution balance reflecting current political values Scott Altman argues that a simple causal link between parent and child is insufficient to establish legal obligation, but he acknowledges that child support costs can be shared between parents and the state, indicating that causation is not morally irrelevant in determining responsibility.

Children have fundamental needs that must be urgently and fully met from the moment they are born, emphasizing the moral obligation of parents to ensure their well-being Engaging in behavior that risks creating a vulnerable, dependent child or failing to terminate a pregnancy when necessary creates a moral responsibility for prospective parents to take care of the child This obligation involves providing financial support, arranging external care if they cannot personally provide it, or caring for the child themselves As Marsha Garrison highlights, prioritizing a child's needs underscores the duty of parents to ensure proper care and support for their development.

The risks that children’s dependence impose on both individuals and communities necessitate the identification of responsible caregivers, and parents are the obvious

According to 141 M Garrison, ‘Is consent necessary? An evaluation of the emerging law of cohabitant obligation’ (2004–05) 52 UCLA Law Review 815, 828, the argument that parents owe each other a duty of support is primarily based on causation, though this obligation may be reduced if one parent's parenthood was non-consensual Furthermore, Blecher-Prigat emphasizes that when adults voluntarily assume the care of a child through adoption or fostering, their legal obligation is grounded in their personal commitment to care.

142 Cf Mostyn J in SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam), [2015] 2 FLR

The contract term focuses on remedying losses and addressing needs arising from the marital relationship, rather than sharing the marital acquest Whether marriage implies such sharing depends on perspectives regarding 'autonomy,' which influences how the division of assets is understood in marital agreements.

S Thompson, Prenuptial agreements and the presumption of free choice: Issues of power in theory and practice (Oxford, Hart Publishing, 2015) See further, chs 3, 4 and 8.

143 See the discussion in ch 7, section II.B.

144 D Jeske, ‘Families, Friends, and Special Obligations’ (1998) 28 Canadian Journal of

For example, Australia's use of 'indicia' to identify eligible caring relationships is discussed in Chapter 7, Section III.B Candidates are responsible for the dependency that necessitates care-giving, as they are the primary cause of this condition.

Mutual Commitment

In adult relationships, marriage represents a complex mutual commitment involving both a legal contract and emotional promises Viewing marriage through an ethic of care perspective highlights its role as a vow to support one another, especially in providing financial assistance to meet each partner's needs during the relationship Additionally, including provisions for financial support in case of divorce or separation ensures a fair and protective framework, emphasizing the importance of care and responsibility within marital contracts.

Determining mutual commitments among cohabitants and those in close family relationships is challenging, making it harder to establish clear terms of engagement When possible, consent and promises can justify recognizing reciprocal moral and legal obligations within these relationships Some scholars, like Diane Jeske, argue that family obligations are owed only when there is mutual intimacy, while others, such as Regan, contend that interdependence—rather than marriage consent—creates obligations between intimate partners However, these theories do not fully address why only certain relationships demonstrate the necessary interdependence or how to objectively assess the degree of closeness or intimacy required.

The Rationale for Obligations Upon Family Members 31

Relationship-generated Loss and Gain

Economic Activity

Individualism and Individualisation

Abolition of the Suit

Is there Still an Obligation to Maintain a Spouse

The Modern Law

The Problem of ‘Bastardy’

Duration of Provision for Children

Collection and Enforcement

The Welfare of the Child

Splitting Rights

Access and the Welfare of the Child

Contact and Commitment

Enforcing an Obligation to Maintain Contact?

Care, Commitment and Cohabitation

The Rationale for Recognition

The Sphere of the Emotions

Caring Relationships

Tiêu đề	Obligation and Commitment in Family Law
Tác giả	Gillian Douglas
Trường học	Hart Publishing, Bloomsbury Publishing Plc
Chuyên ngành	Family law
Thể loại	book
Năm xuất bản	2018
Thành phố	Oxford

Định dạng
Số trang	299
Dung lượng	5,43 MB