Legal Rationality and Family Property

Abstract

Family law, in so far as it is trying to regulate disputes relating to money and property on relationship breakdown, has its work cut out. For it is trying to deal in a rational way with issues between people who are in an emotionally charged relationship situation and where most might predict that rationality is unlikely to prevail (Beck and Beck-Gernsheim, 1995). Whilst some, such as John Dewar, see the answer as conceding to what he terms ‘the normal chaos of family law’ which nonetheless works on a practical level due to the pragmatic solutions of professionals operating within a discretionary legal framework (Dewar, 1998), others have argued that this is not the optimal way forward for family law in general (Henaghan, 2008) and the regulation of new family forms in particular (Barlow et al, 2005). This chapter will therefore consider whether family law can avoid the trap of a ‘rationality mistake’ – whereby legislators overestimate the law’s ability to steer behaviour in a particular direction (Barlow and Duncan, 2000; Barlow et al, 2005) – yet still develop a coherent theory of family law to apply in this field (Eekelaar, 2006; Henaghan, 2008). It has been argued convincingly by critical theorists that family law ‘needs to be socially located’ (see eg Freeman, 1985: 153–54). Given shifting attitudes and more complex married and unmarried families resulting from changed parenting, partnering, and repartnering patterns and behaviours, this presents a real challenge. In rising to this, it will be argued by drawing on empirical research that it is now time to take stock of both the emotional and economic foundations and commitment on which modern couple relationships are built in order to consider how family law should weigh the competing values of promoting personal financial autonomy yet providing legal protection for the economically weaker partner on

relationship breakdown. Arguably this has already been done in the cohabitation context by the Law Commission in its consideration of proposals for the reform of cohabitation law (Law Commission, 2007). But has the right balance been struck here? Is the current legal hierarchy still fit for purpose or are we drawing the regulatory lines in the wrong places? These are the questions this chapter aims to pursue. In so doing, it will draw on empirical research to examine whether family law in this area can find a way to cope with its chaotic raw material, avoid the legal rationality mistake yet become sufficiently coherent to provide satisfactory outcomes for those it serves.