Vardags Family Law Essay competition 2024/25 | Nayantara Nair

Nayantara Nair - BPP University

The Case for the Legal Recognition of Platonic and Non-Conjugal Relationships

Introduction

Platonic and non-conjugal partnerships are precluded from receiving adequate legal protection due to the heteronormativity that underpins our conception of partnership within English Family law. Despite efforts to reform and accommodate changes in societal values, English law remains rooted in preserving traditional family structures (Diduck and Kaganas 2012). Indeed, there appears to be a presumption in favour of heteronormative, romantic relationships. At present, marriage and civil partnership remain the only means of formalising a union between two people. Thus, they are the only means for partners to be afforded state protection. Yet, due to the vast benefits of state protection, this exclusion is deeply problematic. As asserted by Brake (2014) certain contexts, such as immigration, necessitate state protection and regulation of rights. Thus, the absence of such for platonic relationships denies some individuals the rights that would otherwise be afforded to them if their relationship was in the more conventionally accepted and recognised form, a romantic one. As will be argued, this only reinforces an outdated and restrictive notion of partnership leaving certain individuals particularly vulnerable in modern society.

This essay will argue that heteronormative conceptions of relationships both underpin and inhibit our understanding of partnership within English family law. Further, a broader conception of partnership is needed in order to enable platonic (and other non-conjugal) relationships to be within the ambit of state protection.

Limits of civil partnership

In theory, civil partnerships may be a sufficient alternative to legally recognising platonic relationships. By not having the requirement of consummation, civil partnerships veer away from traditional fixations on conjugality within English family law. Yet, this argument is limited.

First, though the development of civil partnerships reflects societal change and acceptance of more diverse relationships, as an institution they are still an extension of heteronormative values. Indeed, it can be argued that by modelling civil partnerships on the framework of marriage, civil partnerships are still founded upon the same archaic principles that underpin marriage. Perhaps, civil partnerships may be conceived as a piecemeal reform that superficially entitles same sex couples to legally formalise their relationship without wholly catering to their specific needs or deviating from the standard relationship model. For example, though the creation of civil partnership was somewhat radical in regards to determining who could legally formalise a relationship, it was otherwise conservative in maintaining the traditional conception of partnership as a romantic and monogamous entity. Supporting this argument, Herring (2015) asserted that the CPA 2004 ultimately serves to fit same sex couples into the heterosexual paradigm of marriage, thus granting equality but only to the prevailing normative conception of monogamous and romantic love.

Attempts to mould a pre-existing structure to encompass a new form of relationship leads to the individualised needs of such partnerships to not be fully accounted for. Thus, friendship must be legally recognised in its own right. Civil partnerships remain tethered to the conventional framework of marriage and thus cannot wholly be regarded as a legitimate means of formalising a platonic relationship.

Further, siblings and other family members are excluded from pursuing this option. This is best illustrated by Burden. Here, two sisters argued the difference between their treatment and that of spouses/civil partners constituted discrimination under Article 14 in conjunction with Article 1 Protocol 1. In short, the sisters lost their case. Under section 3(1)(d) of the CPA 2004, siblings cannot enter a civil partnership as they come within the prohibited degrees of relationship. Given how civil partnership is founded on a traditionalist framework that is centred on romantic monogamy, this logically follows. Yet, it illustrates how civil partnerships cannot be the answer to calls for a legal formalisation of platonic, non-conjugal love as it blatantly excludes a large community of people. Civil partnership was not an option for the Burden sisters. Not only were they precluded from accessing the inheritance tax exemption that is offered to spouses and civil partners on the basis of their sibling relationship not being one of the accepted, legally recognised relationships – but they were also denied the option of entering an accepted, legally recognised relationship in the first place. This case demonstrates a gap in English family law and its failure to acknowledge longstanding and committed relationships that are outside the narrow ambit of marriage and civil partnership. This is problematic due to the fact these institutions are privileged in the English legal system on the basis of heteronormative values. This case can be used to support assertions that civil partnerships are wholly inadequate and not built to address the needs of platonic, non-conjugal partners.

Moving away from the focus on conjugality

The Canadian Law Commission’s report, ‘Beyond Conjugality: Recognising and Supporting Close Adult Relationships’ (2001) considered whether marriage and conjugality should be legally relevant, concluding that conjugality is not well suited to achieving the government policy objectives within English family law. This was asserted again in the modern version of the report put forward by Cossman and Ryder (2017). Moving away from the focus on conjugality encourages a broader conception of partnership thus supporting the recognition of non-conjugal, platonic partners. The argument advanced by Herring (2015) can be used to support this conviction.

In arguing in favour of a care-based system, Herring asserts that sex is not the best, nor even a particularly good, indicator of the commitment of a relationship. A more functional approach would justify a shift towards a care-based system. This is because analysing the degree of care present in a relationship invariably necessitates emphasis to be placed on the functioning of a relationship as opposed to its form. It looks at the lifestyle of the individuals involved and is thus a more reflective representation of any partnership. Trimberger (2002) contended that friendship can be the most valuable relationship for some people. Thus, the legal neglect of non-conjugal relationships unnecessarily makes those with ‘weak family ties’ most vulnerable. Adopting a more functional approach and veering away from the focus on conjugality would thus account for such individuals and would make the law less otiose. Ultimately, if platonic and other non-conjugal relationships can demonstrate the same core values and functions as spouses/civil partners then they should have access to the same state protections afforded to marriages and civil partnerships. This is a proposition supported by Barlow and Smithson (2010) who argued that the government, in an effort to be universally fair, should extend legal protection and privileges to partnerships that are relationally similar to that of spouses/civil partners. This is reasonable; in order to be wholly fair and non-discriminatory the government must treat all relationships that can be proven to be functionally similar the same. This would require a shift away from conjugality, a position that is meritable as it is practical and places appropriate weight on aspects of a partnership that are substantively more worthy.

Indeed, privileging sexual relationships negates the evolving nature of human relationships in modern society. Chambers (2017) is correct in her recognition that the institution of marriage is a means of asserting the preeminence of conjugality and the sexual relationship. Yet, there are flaws with defining relationships in regards to their proximity to sex. Placing conjugality as the focus of human relationships is reductive and fails to acknowledge the broader conception of partnership that is needed in order to be reflective of reality. Additionally, looking beyond conjugality when assigning legal recognition and state care for relationships enables the law to protect individuals in sufficiently codependent platonic relationships in the event of a relationship breakdown. This is supported by Polikoff (2007) who made the compelling point that if partners are prevented from accessing legal benefits solely on the basis that they are not married or conjugally involved, they will be more vulnerable.

Thus, a shift away from focusing on conjugality is crucial when seeking to understand partnership within English family law. It allows one to observe and regard relationships on the basis of more material factors and veers away from the traditionally heteronormative values that otherwise greatly restrict our conceptions of human relationships and the legal structures in place to protect them.

A contractual analysis

Another argument supporting the legal recognition of platonic partnerships involves observing marriage/civil partnership from a more contractual angle. If marriages are seen as contracts, then one can invoke the principle of freedom to contract to argue that individuals should be able to freely contract into legally recognised platonic relationships.

Regarding marriage as a contract is a perspective well supported by academic scholarship and case law. First, Brake (2010) focuses on marriage as a legal contract when proposing a ‘minimally restricted law of marriage’. She suggests that individuals should be able to dictate the terms of their ‘marriage’. This may include the number of parties and the allocation of rights and responsibilities between them. Brake describes this proposition as ‘minimal marriage’. In essence, her view advocates for a contractual analysis of marriage as it places autonomy on the parties to dictate the nature of their partnership. This is a fair argument that is supported by various judgments. In Radmacher v Granatino [2010] Baroness Hale recognised the contractual nature of marriage but qualified this by stating it conferred status also. Specifically, she argued that marriage is a contract insofar that each party must agree to enter it and recognise that they are ‘bound by its legal consequences’ however they are not able to negotiate and alter what these legal consequences are. Instead, individuals must accept the ‘package’ of rights ‘which the law of the land lays down’. This is supported by Rob George (2012) who likened marriage to a club membership. With this analogy George argued that if one met the requirements of a club then they would attain membership however they would be unable to change the rules of the club. Here, the latter part is relevant and in accordance with Baroness Hale’s view. Though these arguments are an accurate conceptualisation of marriage and its mechanisms, Brake’s proposal challenges this position, calling for the institution of marriage to enable parties to set their own terms and legal consequences. This is reasonable as it promotes a more autonomous notion of marriage which can be more easily expanded to include platonic partnerships.

Nonetheless, it is fair to assert that marriage is accepted to be contractual in nature which leads to the next limb of this argument. The significance of recognising marriage as a contract means that one accepts the principle of freedom to contract applies. Basic contractual theory states the importance of the ability to freely contract and negotiate terms. Therefore, if marriage – and thus by extension any legally recognised relationship – can be likened to a contract then technically individuals should be free to contract themselves into legally recognised platonic relationships.

Conclusion

As first stated, societal conceptions of partnership are largely rooted in traditional heteronormative values. Privileging marriage and other romantic unions serves to reinforce heteronormative values that place sexual, monogamous unions at the centre of English family law. Yet, placing emphasis on the conjugal nature of a relationship is both problematic and deeply reductive. To regard relationships as committed merely by their conjugal nature is to negate the more fundamental aspects of partnership. It restricts our understanding of human connection and fails to align with the realities of many individuals in modern society who are increasingly choosing to live with friends and non-conjugal partners.

Thus, a shift away from the focus on conjugality and towards a care-based analysis of relationships is needed. This approach places the appropriate weight on individual autonomy and lived realities, thus catering for the needs of ever evolving public communities and adopting a more inclusive conception of partnership. Indeed, if platonic friends demonstrate economic and social interdependence then they should not be denied the right to be legally recognised and gain the legal privileges that would better facilitate their common lifestyle. As such, the case for the legal recognition of platonic relationships is undoubtedly a compelling one.

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Bibliography

Barlow, A. E., and Smithson, J. (2010) ‘Legal Assumptions, Cohabitants’ Talk and the Rocky Road to Reform’ (October 6, 2011). Child and Family Law Quarterly, 22:3

Brake, E. (2010) ‘Minimal Marriage: What Political Liberalism Implies for Marriage Law.’ Ethics, 120:2

Brake, E. (2014) ‘Recognizing Care: The Case for Friendship and Polyamory Syracuse Law and Civic Engagement Forum’ 1:1

Canada, Law Commission of, (2001) Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships

Chambers, C. (2017) ‘Against Marriage: An Egalitarian Defense of the Marriage-Free State’, Oxford Political Theory, Oxford

Cossman, B., and Ryder, B. (2017) ‘Beyond Beyond Conjugality, Canadian Journal of Family Law’ , 30:2

Diduck, A., & Kaganas, F. (2012) ‘Family Law, Gender and the State: Text, Cases and Materials’, (3rd ed.) ,Oxford: Hart

George, R. (2012) ‘George: Ideas and Debates in Family Law.’, Oxford:Hart., The Cambridge Law Journal 72:2

Herring, J. (2015), ’Making family law less sexy...and more careful’, in R. Leckey (ed.) After Legal Equality : Family, Sex, Kinship, Routledge Abingdon

Polikoff, N. (2007), ‘Beyond Straight & Gay Marriage’, Boston: Beacon Press

Trimberger, E. K. (2002) "Friendship Networks and Care" Berkeley Center for Working Families Working Paper No 31 pp.13