FAMILY LAW

Family Law

Changes and Innovations to Law or Policy

Introduction

Individualisation is widely used in the analysis of contemporary social change. Sociological research shows that there are fundamental shifts underway and that a reorganisation of intimacy and familial roles and relationships is central to social transformation. It has been suggested that the trends lean in the direction of increasing individualisation whereby people become more independent and autonomous, of family bonds especially, and growing diversity of relationship practices (Beck and Beck- Gernsheim, 2002; Giddens, 1992). A key issue is how, and indeed if, the state links into this process. This question is important for several reasons. In the first instance, it serves to reveal some of the origins of contemporary change, including change in the nature of state organisation itself. It is, secondly, revealing of the direction of change. While there is general acceptance that the male breadwinner model is the past that welfare states are moving away from, there is no agreement about the emerging model of family and gender relations that is taking its place.

Welfare states have long been important actors in social and family life. While they vary in the degree to which they focus explicitly on the family, states have typically sought to secure family functioning, reproduction, and care provision against destructive tendencies of the market (Daly, 2000). The growth and development of the welfare state itself could be seen as countering 'pure' individualisation processes - a function of state intervention epitomised historically, by such diverse measures as the ban on child labour, regulation of working time, the development of social security for workers, and the granting of entitlements to those who provide care. Family law is a complementary part of such state intervention, intended to institutionalise mutual obligations and rights within couples and between family members and to cover some risks of those who face disadvantages in earning an income (typically women) (Scheiwe, 2007). However, the institutions associated with family have undergone dramatic change since the 1970s, shifting from a hierarchical gendered order that was male-oriented and marriage-centred towards a formally gender-neutral model of parenthood and more choice and bargaining on the part of individual members of couples.1 At the same time, the (limited) deinstitutionalisation of marriage and the ban on discrimination against children born out of wedlock fuelled a process of decoupling marriage and parenthood. This process fits with the general thesis of individualisation in that it broadens exit options from marital bonds and erodes the distinction between the legitimate and illegitimate family. But as we shall show, it is not a singular process of erosion and disintegration - institutions that are meant to cover care-related risks and family bonds are not abolished but, rather, redesigned in a gender-neutral fashion. In the process, people are individualised but they are not freed from all obligations towards others. Institutions are not simply destroyed or abolished, but change - and continue to impose rules about who ought to do what, and who should maintain whom and care ...