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Vardags Family Law Essay competition 2023/24 | 4th Place

Ohana Means Family: The Need to Legally Define Family in England & Wales

Author: Gerardo Naranjo Franco– IE University, Spain

Hegels idea of the Ethical Life introduces family as a concept in which individuals come together bound in a love for each other. Traditionally, jurisdictions worldwide have utilised marriage and civil partnerships as a legal representation of such love, positioning both of these at the centre of most familial legal frameworks. In the U.S for example, family is defined as a group of two or more persons related by birth, marriage, or adoption who live together. Nonetheless, England & Wales do not currently have a legal definition of what it means to be a family. The closest allusions to the concept are currently the pillars under which family law operates: matrimonial, finance, and child law. 

However, societal views on family and civil partnership are evolving at an unprecedented pace, with over half of the children born in 2021 being born to unmarried mothers in England & Wales. Besides the increasing popularity of non-married relationships, the increasing popularity of polyamorous relationship will most likely play a role in this dynamic, as inferred by the fact that 7% of UK nationals had been in a consensual polyamorous relationship in 2019, as compared to only 2% who said the same back in 2015. As we expect these trends to continue in coming years, both the legal and philosophical understandings of family will most likely need to evolve to adapt to these emerging societal needs. Therefore, this essay will aim to explore how evolving societal views of marriage and civil partnerships are increasing the need to incorporate a legal definition of family into the English legal system. This analysis will be done through an exploration of the implications that the rising popularity of non-traditional families in the UK may have on civil partnerships, children issues, and immigration, ultimately demonstrating that the incorporation of a definition of family into the legal system could help alleviate some of the issues that the country can expect to face in the near future.

An analysis of the concept of family can only begin through an examination of who is legally permitted to unite into a family according to current legislation on civil partnerships. Currently, marriage in England & Wales is only permitted to those who are over the age of 18, not already in a civil partnership, and not closely related to their partner.6Ever since the Parliaments passing of the Marriage Act in 2013, both opposite and same-sex couples are allowed to obtain civil marriage in England & Wales. Similarly, civil partnerships for same-sex couples can be converted into a marriage in both of these countries; although this is not applicable to opposite-sex partnerships. Nonetheless, the popularity of marriage is decreasing, and experts suggest that by 2062 only 1 out of every 400 couples in the UK will ultimately get married.

In a parallel fashion, the decrease of married couples has been met with an equally significant increase in the amount of non-traditional relationships in the country. Besides the aforementioned increase in the popularity of polyamory in the country, there is also an ongoing debate regarding the possibility of siblings obtaining a civil partnership. The most relevant case study regarding this issue is that of Catherine and Virginia Utley: a pair of sisters who argue that they should be allowed to get a civil partnership on the basis that they have lived together for the past 30 years, they have raised Catherines daughter together, and in the case that one of them dies, the other one may need to sell the home they have shared for over 23 years in order to account for the large Inheritance Tax bill. Being able to form a civil partnership together could allow the sisters to enjoy the Inheritance Tax advantages that couples in civil partnerships or marriages currently enjoy, such as not having to pay the Inheritance Tax in the case that the deceased partner leaves their entire state to the remaining partner. In their own words, excluding siblings from civil partnerships is pure discrimination. According to experts, the prohibition of civil partnerships for blood-related individuals is there to prevent the perception that incest is being legalised. Nonetheless, what makes the Utleys case a cause for debate is the fact that their relationship is completely non-sexual yet ultimately familiar, which could be argued to eliminate the incest argument. Still, this does not take away from the fact that allowing the sisters to form a civil partnership would set a precedent for future civil partnerships in which the potential for incest could be there. Therefore, this case study calls for the questioning of what we understand as a civil partnership in relation to the concept of family in the country. If civil partnerships can be understood as a legal formation of a family, could they not also become legal reaffirmations of already existing blood-bounded relationships in their pursuit of legal protections in non-traditional circumstances? In a similar vein, current legislation only allows for civil partnerships to be obtained by pairs of people, hence eliminating the possibility of polyamorous relationships to be legally recognised. Yet as the popularity of these relationships continues to grow, one could also expect cases similar to that of the Utley sisters to emerge in a polyamorous context. Both of these scenarios reveal the complexities that may arise due to the current lack of legal definition of family in the English legal system, thus calling for an incorporation of such a definition in order to help alleviate some of these challenges.

Once the implications of forming a legal family under current legislation in England have been understood, it is also important to discuss what the increase of non-traditional partnerships in the country could represent for the process of expanding such families via children. Currently, legal parenthood over children in the country is heavily determined by the understanding of motherhood. Traditionally the mother and the father are considered the people who have a genetic connection to the child, but in cases where there is no intercourse per se such as via In-Vitro Fertilisation (IVF), the mother at birth is automatically considered whoever bears the child during the pregnancy process, and the father is considered to be her husband -if applicable- even if the sperm donated has originated from a different person. Six weeks after the childs birth, intended parents can apply for a parental order, which is a document that gives them legal rights over the child. Therefore, it can be argued that in non-traditional child bearing scenarios, the law prioritises the mothers role in the family structure in order to determine who obtains automatic legal parenthood over the child at the time of birth. In the case of adoption, only: single, married, civil partnerships, unmarried couples, and partners of the childs parent can adopt. For non-traditional couples, this becomes an obstacle for adoption if one considers the restrictions to civil partnerships mentioned beforehand.

Similarly, current UK legislation states that a child can have no more than two legal parents, which means that a polyamorous couple seeking to either adopt or have a child artificially would not be able to register all of the members of the relationship as legal parents of the child. Currently, the closest thing to a solution is the possibility for a third-party to apply for legal parental responsibility over the child in English law, although this can only be done if it is demonstrated that there is a clear connection to the child. Despite a lack of clear precedents showcasing this scenario in England, there was a case in New York where a judge decided to grant a three-way couple tri-custody over a child who, for a period of time, had lived under a co-parenting agreement between the three adults involved. Similar to what would have occurred in England when a childs situation is subject to litigation, the decision was taken following the principle of prioritising the childs best interest. Could we therefore expect similar judicial decisions in England as these issues become more prevalent? The answer is unclear, yet the questioning of our current understanding of family continues to resurface as a motif of the examples provided. If we look back at Hegel, it is true that he would have also rejected the idea of polygamy as a valid representation of family, and thus, as a suitable environment for shared parental responsibility. Yet, if we maintain his outlook on love and the crucial role it plays in familial bonding, one could also argue that, at a philosophical level, a polyamorous relationship intending to raise a child is an equivalent dynamic to that of a traditional couple seeking the same objective. The only remaining debate is whether a legal capturing of such dynamic would be an appropriate addition to the legal system as we know it.

Besides the issues associated with the formation and expansion of a British family, current immigration trends also bring to attention the issue of family reunification in England, particularly for refugees coming from countries in vulnerable situations. According to an Oxfam report, the current understanding of family under UK legislation makes it very difficult for refugees to fully integrate into British society due to the obstacles they face when trying to reunite with their loved ones. As of now, the term family for refugee-related issues encompasses only partners (married or civil) and dependent children under the age of 18, which means that a person seeking asylum in the country can only apply for these members of their family to join them. Although the definition appropriately encompasses the common understanding of a nuclear family, one could also argue that it fails to acknowledge non-traditional family dynamics in which family members such as grandparents, uncles, or children over the age of 18 also have a deeply rooted connection to the person seeking asylum in England. The issue is concerning due to the implications it has on societal integration for refugees trying to acclimate themselves to British culture and become productive members of society. According to the report, 75% of the people studied were unable to focus on activities fundamental to their integration -such as learning Englishdue to ongoing concerns regarding their family members, which led to a variety of mental health-related issues. This demonstrates that a more holistic understanding of family when it comes to dealing with refugees and asylum seekers is not only beneficial to the individual who is immigrating, but also to the community they are joining due to the smoothening and acceleration of the process by which they integrate themselves. In this situation, the problem does not arise from a lack of definitive terms for what a family constitutes, but rather from a narrow perspective on the topic; which albeit justified through a variety of economic, political, and social factors, continues to reveal an arising dilemma between limited legal definitions of family in contrast with expanding understandings of such a concept due to evolving socio-political and cultural factors.

The examples discussed throughout the course of this essay aim to demonstrate potential pains that could arise from not having a working legal definition of what a family means in the English legal system. As non-traditional families continue to grow in popularity, the need for this definition becomes latent in order to accommodate the changing landscape of relationships and partnerships. Whether it is through polyamorous relationships, sibling partnerships, or family reunification for individuals seeking refuge in England, arising legal disputes revolving around these issues would be thoroughly alleviated through the incorporation of such a definition. For many, law is seen as a regulatory force which should ultimately mould societys expectations and behaviours. Nevertheless, one could argue that law holds a much more idealistic potential; preferably, playing a more beneficial role for individuals and communities alike through a pursuit to reflect a societys reality rather than to direct it. As such, there is no denying that societies worldwide are becoming more inclusive of non-traditional families, leading to a more inclusive reality which in turn will need a more inclusive legal framework. Therefore, further dialogue at both the legal and philosophical levels will be fundamental in the construction of such a framework, as we redefine the essence of what a family means in contemporary society, as well as the procedures to legally form one. Hegels views on family were rather traditionalist, but the key components of love, bonding, and the family units role in individual development that he originally discussed persist to our days. Thus, an embracing of a more inclusive definition of family, grounded in these components, not only honours the spirit of Hegels philosophical inquiry, but also our collective commitment to fostering a more just and equitable society for generations to come.



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