Introduction: The Importance of Theory to Children’s and Family Law

What defines family law? Is it an area of law with clean boundaries and unified distinguishing characteristics, or an untidy grouping of disparate rules and doctrines? What values or principles should guide it – and how could it be improved? Indeed, even the scope of family law is contested. Whilst some law schools and textbooks separate family law from children’s law, this is invariably effected without asking what might be gained or lost from treating them together or separately. Should family law and children’s law be distinguished or treated together?

One would expect disagreement on these questions in any context. In bringing together theorists from multiple jurisdictions and at least two primary disciplines, we should not be surprised to find deep differences in approach reflecting different methodologies and foundational questions. The tension between them, we hope, can illuminate and enrich discussion on all sides. Further, through combining insights from law and philosophy, we also intend to add another layer to the current trend to focus on the empirical in family law research, and highlight how critical debates in children’s and family law are at once theoretical and empirical in nature. Understanding the nature and content of a child’s “best interests” as contained in multiple jurisdictions’ legal frameworks regulating private and/or public law concerning children, for example, requires us to approach the matter both conceptually – in order to adjudicate between frameworks – and in terms of fit with evidence from research. This immediately makes any satisfactory resolution more uncertain, contested, and subject to criticism. It is in this context that we hope that the conversations between law and philosophy, their points of agreement and divergence, can advance stalled debates.

International differences correspond, of course, to differences in law, policy, and procedure. Contrast, for example, England and Wales’ ‘single pot’ approach to the distribution of property and maintenance upon marriage breakdown to the more common, “pillarised” treatment of matrimonial property, pensions, and maintenance. The difference in system design necessarily affects the available potential justifications. As a more nuanced aspect of the impact of system design, one might consider the normative difficulties created by the variation in default regimes adopted in relation to matrimonial (or marital) property between US states. Facing jurisdictional differences – like considering historical changes within one’s own jurisdiction – can yield an awareness of the context-specificity of one’s own starting points. And awareness of how things are done differently can lead us to call into question our own ways of doing things. Such awareness might alert us to unintended consequences of legislation or to innovative solutions. And, more fundamentally, it might cause us to interrogate what we take as the core, the normal, or even the natural. This is where philosophical investigation becomes indispensable.

In Section II, we outline a number of respects in which the approaches taken by (academic) lawyers and philosophers writing in this field tend to differ, as well as how the structure of this collection seeks to cut across and highlight both these divergences and shared accounts. In Section III, we introduce the key themes that underpin the collection, which demonstrate the potential for cross-fertilisation between legal contexts as well as between legal and philosophical perspectives. When we refer to ‘lawyers’ and ‘philosophers’, we have in mind those working in family law and children’s law in particular.

[This chapter is co-authored by Lucinda Ferguson and Elizabeth Brake, and is being published in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children’s and Family Law (OUP 2018).  A pre-editing version of this chapter is available here].

Elusive or Illusive? Fairness, the Family, and Family Law

Presentation to the International Academy of Matrimonial Lawyers’ 2015 annual conference.  (Full paper forthcoming):

The Commission on European Family Law grounds its 2013 Principles Regarding Property Relations[1] most fundamentally in equality,[2] expressed in terms of ‘equal rights and duties’.[3]  In terms of the underlying normative basis of the principles, Boele-Woelki, the Chair of the CEFL’s Organising Committee reasons:

In addition to equality between the spouses, the principles of sharing and fairness, solidarity, flexibility, legal certainty, protection of the weaker spouse, and the promotion of party autonomy are likewise of fundamental importance in this area of the law.[4]

Whilst recognising that the principles relate to matrimonial property, rather than also maintenance, pension sharing, and so forth, it is nevertheless noteworthy that Boele-Woelki positions ‘fairness’ as no more foundational than the other principles and sitting alongside concerns such as legal certainty.  But is this right?  Perhaps more critically as lawyers, (why) does it matter whether this posited hierarchy is correct or not?  Should we concern ourselves whether ‘equality’ or ‘fairness’ is the singular fundamental principle?

Answers to such questions turn on a better understanding of the concept of ‘fairness’ itself.  Yet, are any answers readily to be found?  The CEFL notes the need for ‘fairness’, amongst other aims, in relation to both of its proposed default regimes, participation in acquisitions and community of acquisitions.[5]  No definition of ‘fairness’ is provided.  In 1989, the Council of Europe placed economic independence at the core of the financial consequences of relationship breakdown.  The first way in which this was to be achieved was by using matrimonial property regimes to ‘grant[.] to a former spouse the right to obtain a fair share in the property of the other’.[6]  This itself is question-begging as ‘fairness’ is here proposed as a means to upholding respect for autonomy.  Is it ‘fair’ to impose autonomy on weaker spouse, particularly at the cost of another, who is also more commonly in straightened rather than prosperous circumstances?

There is a sense in which both the CEFL and the Council of Europe treat the concept of ‘fairness’ as self-explanatory.  In struggling to either refute or substantiate such proposals for the place and purpose of ‘fairness’, however, we may well ask if it has any conceptual core.  What does the reference to ‘fairness’ achieve or seek to achieve in this context?  Doubts over its usefulness might be heightened by noting that a number of IAML fellows’ responses to the circulated conference questionnaire indicated that their understanding of ‘fairness’ in practice differed from the law as expressed in their jurisdictions.[7]


Argument and Outline

In what follows, I examine from a comparative perspective the strategies adopted in various jurisdictions to embody ‘fairness’.

I begin by discussing strategies systems make about how to incorporate ‘fairness’ – whether to crystallise in legislation or judicial pronouncement; and what evidence, if ‘fairness’ is not explicitly incorporated, we may draw to suggest ‘fairness’ may nevertheless have been incorporated.  I discuss how ‘fairness’ relates to default matrimonial property regimes and how that compares to its place in the common law (non-)regime.

I disagree with the recent trend of drawing on outcomes alone to argue that the “pillarised”[8] civil law approach is not so dissimilar from the “holistic”[9], discretionary, and fact-based common law approach.  Central to this argument is the suggestion that ‘fairness’ is intimately connected to understanding ‘family law’ in an attitudinal sense, rather than in the conventional sense of the substantive legal domain covered.  I argue that a ‘family law’ attitude means treating the relationship under consideration as special.  Specialness necessitates that the relationship itself or aspects thereof ground a response that would be unavailable in the general law.  The uniqueness of the response may relate to the process of reasoning or the outcome reached, whether in terms of the outcome having a unique normative basis or being a substantive outcome otherwise unavailable.  This attitudinal understanding of ‘family law’ has consequences for which relationships should be viewed through the lens of ‘fairness’.

After discussing four facets of ‘fairness’ – rhetoric, process, outcomes, and institutional ‘fairness’ – I proceed to examine how we might evaluate the ‘fairness’ of individual systems.  This entails brief consideration of three values which inform ‘fairness’ – equality, autonomy, and vulnerability.  I conclude that responding to vulnerability via provision for ‘needs’ represents a baseline for the content of ‘fairness’, though I raise doubts about the implication that all jurisdictions that theoretically allow provision for ‘needs’, no matter how limited, should be seen as adopting a ‘fair’ approach.

I conclude by highlighting that the search for ‘fairness’ is fundamentally concerned with how we conceptualise disputes, such that there may be a ‘right’ cluster of values to guide decision-making, but no ‘right’ answer, no single better weighting of those values in practice.  Jurisdictional context is critical, and entails fit with underlying social, cultural, political, and economic norms.

[1] Katharina Boele-Woelki et al, Principles of European Family Law Regarding Property Relations between Spouses (Cambridge, UK: Intersentia, 2013).

[2] Katharina Boele-Woelki, ‘General Rights and Duties in the CEFL Principles on Property Relations between Spouses’ in Katharina Boele-Woelki, Nina Dethloff, and Werner Gephart, eds, Family Law and Culture in Europe: Developments, Challenges and Opportunities (Cambridge, UK: Intersentia, 2014) 3-12, 6.

[3] Boele-Woelki et al (n 1) Principle 4.2.

[4] ibid 6.

[5] ibid 147 (Principle 4.17) and 220 (Principle 4.34).

[6] Council of Europe, Recommendation No R (89) 1 (18 January 1989), Principle 1.

[7] Personal communications from IAML fellows in response to the ‘Fair is foul’ survey, circulated July 2015.

[8] Dutta, cited in Jens M Scherpe, ‘Towards a Matrimonial Property Regime for England and Wales’ in Rebecca Probert and Chris Barton, eds, Fifty Years in Family Law: Essays for Stephen Cretney (Cambridge, UK: Intersentia, 2012) 133-146, 138.  In addition to matrimonial property, the other critical ‘pillars’ are maintenance and pension-sharing.  Scherpe also mentions the allocation of the use of the matrimonial home.

[9] Scherpe, ibid 138.


A copy of the powerpoint presentation is available here.

Family, Social Inequalities, and the Persuasive Force of Interpersonal Obligation

To date, the privatization of the costs of social inequalities for women and children has been criticized predominantly from a policy perspective. This article seeks to make a stronger case against remedying social inequalities through private law obligations by addressing the theoretical difficulties with such privatization with a particular focus on familial obligations. I take my core examples from the current Canadian understanding of the spousal and child support obligations. My analysis proposes and proceeds on the basis of a new discourse for obligations traditionally grouped together as “Family Law” obligations: first, interpersonal obligations, which arise from and tie together two citizens through either a single interaction or through their relationship as a whole; second, social obligations, which are owed by the community as a whole to individual citizens. I argue that the persuasive force of the focus on an individual’s responsibility for another’s financial need has obscured the reality of the state’s obligation, the broader social obligation, to respond to this need. I conclude with a discussion of the consequences of my analysis for the future of the spousal and child support obligations. If we deny an expanded role to these support obligations, can we do so in a way that avoids leaving the impoverished in an even more precarious position?

This paper is published in (2008) 22 International Journal of Law, Policy, and the Family 61-90, and also available here.