One of the concerns identified as important in feminist work on families is the way in which particular ideas of individualism, autonomy and agency have been incorporated into family laws. Women’s legal autonomy was hard-won by early feminists and is still important, but now it is an autonomy that bears only passing resemblance to the autonomous, ‘rational’ agents of liberal individualism. Unlike the detached autonomous individual of liberalism, the self in feminist thought is a situated, related and connected self who makes decisions about her life and her self with a rationality that is not exclusively economic. It is a self that not only reacts to situational stimuli, but is created by her situation and her active choices within and constitutive of that situation. This feminist self claims the space to choose who and what to be and to refuse to be confined or contained by structures or meanings about identities.
Anne Barlow and Simon Duncan’s[72] work demonstrates how different rationalities may work in making these choices. Often, they say, women with children choose whether or not to engage in paid labour on the basis of more than a simple financial calculation. They exercise a complicated negotiation of moral and economic considerations that are specifically linked to their ideas of being a ‘good mother’ and belie New Labour’s characterisation of them as the economically rational individuals of liberal thought. And Mumford[73] shows that this economically rational individual is also at the heart of tax law, in which the taxable unit is the individual rather than the family and through the way in which the provision of tax credits is given to this unit, government aims to encourage the financial independence of women (as mothers). The problem with the ‘rationality mistake’ in both these contexts is that it merely encourages women to enter low-paid work and reinforces their dependence upon the male-patterned market, while at the same time discrediting their own moral rationality.
Respecting autonomy may mean understanding the subject from her own perspective. This way forward is advocated by Malik[74] in her approach to a feminist multiculturalism. What Malik shows is how a woman out of tune with her community’s traditional norms is caught in a conflict. It is simplistic to argue that she can leave. For minority women, group membership is a critical aspect of their identity. They seek autonomy within the group. The challenge for those who wish to support minority women facing injustice within their family or their community is to strike a balance between showing support and maintaining a critical distance. Malik’s chapter is an illuminating example of how a feminist methodology can be crucial to identifying new theoretical and practical concerns. Malik’s feminist methodology is to try, so far as this is possible, to see from within the subjectivity of the other.
From this perspective, we can see that differing traditions of family living, including child rearing, may give rise to differing perceptions of justice. We can also see why family law is often central to claims for accommodation made by traditional minorities and consequently why the regulation of women’s lives is also central. Women are the reproducers and socialisers of future members of the community, and so it is not only their individual identities which are at stake; the re-creation and maintenance of the collective identity depends upon them. This role may lead to the control of women in relation to sexuality, marriage, divorce and child rearing, and to their bearing a disproportionate burden of any policy of accommodation of cultural or religious practices.
Katherine O’Donovan and Jill Marshall[75] are also concerned about women’s autonomy. They make the point that identity is a work in progress and thus stress the importance of the ability to make autonomous choices in shaping that identity. In their argument, the meaning or identity of ‘mother’ has not been sufficiently challenged, even by feminist scholars. Mother is an identity, they say, that women must be free to remake. And so, while one may argue that much feminist work has already been done to reveal and challenge the ‘good mother’ of law, the self — sacrificing full-time nurturer of the traditional family,[76] they go further. They argue that women must be free to separate the incidents of motherhood — maternity and mothering — that have for so long been inseverable as one.
Finally, shaping and remaking identity is also a theme in Jones’s and Jackson’s work. In demonstrating technology’s effect upon making families, they demonstrate both the effect it can have upon making family identities and law’s resistance to these innovations. They wonder if law’s understanding of ‘parent’ is not fundamentally misguided. Jackson[77] challenges law’s continued reliance upon a form of binary reasoning in which one either is or is not a parent and Jones[78] also criticises this dichotomy in her work with lesbian parents, who are often frustrated by the discord between their experience of mothering a child and law’s myopia in acknowledging that experience.
Equality and equivalence
In 1974, Finer and McGregor wrote that ‘all major developments in family law from [the mid-nineteenth century] onwards’ have been directed to ‘equality within the law for women [and] equality within the law for people of small means’.[79] In some ways this is true, but while equality always was and still remains an important goal for feminists, it has become a disputed concept. Formal equality or sameness of treatment may have been the goal of first-wave feminists, but since then feminist theorising about equality has shifted enormously. Many feminists have, for example, criticised sameness of treatment as reinforcing a norm which might be better disputed. Formal equality resolves only the ‘problem’ of treating people or situations differently; it does not redress dominance, nor does it always recognise that different treatment may sometimes be required to compensate for disadvantage created by institutions or structural conditions.
Finer and McGregor may be correct, however, at least to the extent that the language of equality or equal treatment has become important in family law.[80] As Stychin observes, for example, formal equality was a driving principle behind the passage of the Civil Partnership Act 2004. As he also observes, however, the Act fits precisely within New Labour’s ‘third way’ political discourse and can be seen as much as a method of disciplining family living as a celebration of ‘alternative’ family living. Arguing that same-sex partnerships are ‘the same’ as heterosexual married ones can thus serve to marginalise and ‘other’ those who wish to live outside the family norm while remaining within the politically acceptable discourse of equality.
Christine Piper also observes the ways in which gender neutrality, or formal equality, operate to the disadvantage of young girls and women. Young female offenders are different from young male offenders in their backgrounds and in the offences they commit, yet the expectations of and responses by the authorities are all ‘gender neutral’. Rather than resulting in equality and justice for all young offenders, however, Piper shows how sameness of treatment simply renders girls invisible to the youth justice system. They are subsumed under the category ‘youth’. Piper asks the ‘woman question’ in the context of youth justice policy, and sees it failing young girls and women.
Equality has also resurfaced as an important standard by which to judge relations between individual members of the family itself. While treating fathers and mothers equally in custody disputes was a goal for early feminists who campaigned against the patriarchal system of ‘father right’,[81] formal equality between parents seemed to fall out of favour in the mid-twentieth century. As the reality of gendered roles in child care during cohabitation were given legal recognition in residence and contact arrangements on separation, feminist concern shifted to ensuring that women and children were not financially or socially disadvantaged by those arrangements, and it has been fathers who have regenerated claims for parents to be treated equally. To feminists it is clear, though, that formal equality for mothers in the nineteenth century was a different claim and had different effects from fathers claims for formal equality in the twenty-first century. Further, achieving a form of equality in the distribution of the financial consequences of family living is also a goal that law has adopted. But, again, this form of equality too often has resulted in disadvantage for women. Let us consider the movement toward equality, or equivalence, in both financial matters and child-care matters.
One area regularly written about in feminist legal theory is the plight of the single mother. Where she has gone through divorce ‘precipitous downward mobility both economically and socially’[82] was identified as the outcome. This was partially due to applying principles of formal equality to women who were economically dependent upon their husbands during marriage.[83] The English courts now appear to have parted company with those in the United States by attempting an equal valuing of roles in marriage, whether as primary carer or wage earner. Indeed, the decisions in White v White[84] and Miller v Miller; McFarlane v McFarlane[85] mark an effort by the judiciary to bring some substantive, rather than merely formal, equality into post-divorce financial provision. Together, these cases introduce into the objective of ‘fairness’ the recognition of family work as work of equal significance with market work, non-discrimination between husband and wife as a ‘principle of universal application’ and the need for compensation for economic disparity arising from the way the parties organised their family lives, including, but not exclusively, their responsibility for the (pre — and post-divorce) care of children. But even these apparently progressive decisions may be only symbolic for the majority of single mothers, as they apply only to families with sufficient assets to share. For most single mothers, the failures of the Child Support Agency to ensure financial help in raising children remain a national scandal.[86]
Further, as Susan Boyd has recognised, compensation of a woman’s unpaid labour in the home is only achieved if she has a former husband or civil partner against whom to make her claim. The benefit that all of society receives by the unpaid labour of a woman without a (former) partner, or by one who does not wish to make a claim against him or her, is thus neither recognised nor compensated, and ‘ideologically, heterosexual relationships — and women’s roles as wives and mothers within them — are thus reproduced’.[87]
It is arguable that the rhetoric of formal equality has been taken also into discussions of parenting.[88] We see it operating in recent amendments to the Children Act 1989, which give fathers parental responsibility over their nonmarital children, and in the new ‘truth’ that the welfare of children demands that (arguably only) at the end of their parents’ relationships, fathers should be assumed to be equal carers.
Twenty-four per cent of children live in a lone-parent household; nine out of ten of these live with their mothers. Of the 76 per cent of children in households headed by a couple, not all are living with both birth parents. Of children living in a stepfamily household, 83 per cent live with a stepfather.[89] Thus children are most likely to encounter family law through contact and divorce cases, and these cases are most likely to concern claims by fathers. Kaganas examines discourses utilised by some fathers’ groups who consider the courts to discriminate in favour of mothers. They deploy the discourse of formal equality or equivalence in debates about domestic violence, but Kaganas argues that use of this discourse may merely be a strategy employed to control their ex-partners and children while relieving them of the need to resort to unacceptable patriarchal claims to do so. Just as in the financial provision cases that do not involve ‘big money’, we can see in Kaga — nas’s work how women may be hurt by the hard choices they make between family work and market work, and that men’s specialisation in market work may hurt men also when it comes to remaining part of their children’s active families.
Smart argues also that a new narrative of fatherhood, based on claims to care as well as to justice and rights, repositions the father within the post-separation family. Her suggestion is that although some fathers may engage in gendered blaming and a denigration of motherhood, others express an emergent change in how fathers wish to relate to their children. This links to Collier’s analysis of the deconstruction of masculinities and femininities in academic debates. He argues that models of both genders are outdated and that gender identities are in the process of being freed up. What is needed is a return in feminist theory to material conditions, where issues of power, interest and political economy are central. The contribution of post-modernist feminist debates has been to create awareness of the diversity of family forms and practices, and of identities as performed. Smart’s and Collier’s work here highlights the importance of bringing together insights on creating identities and exclusions with an analysis of material inequalities in the relative positions of women and men, as a way forward from debates about formal equality.