Feminism’s impact on family law has been mixed; almost paradoxical. Recent legal reform and the contributions to this collection illustrate this ambiguity. They show, for example, that families or legal partnerships may now be formed by people of the same sex and legal parenthood may now be held by people of the same sex; that the employment world and the tax-benefit system make provision for parenthood; that the language of care has become acceptable in legal discourse; and that law can pay real attention to different aspects, including cultural aspects, of identity. In other words, they show that identities — or legal subjectivities — are changeable; that family practices do occur outside the home; that a moral and ethical voice can be heard by law; and that our subjectivities are made as much by our context and connections as they are by our natures. These are all feminist ideas.
And even where feminist ideas have not resulted directly in legal change, they may have laid the groundwork for progressive dialogue to occur among policy and law makers and they have certainly created space for conversations among academics, activists and practitioners. Feminism may also have had some influence at the micro level in how family life is lived at home or within individual places of work, affecting gender performances on a daily basis. And even where feminist perspectives have not influenced a majority of the court so as to be counted as a ‘win’, they may open that area of law to future analysis, all the more strongly if they are referred to in the reasons of the minority.[102]
Yet, on the other hand, law’s resistance to feminist concerns remains strong. The underlying principles of English law mean that as much as one’s legal subjectivity has changed over the years, particularly women’s and children’s legal subjectivity, family law either denies that changeability and pronounces the changed situation to be simply the situation that always was (as in R v R), or acknowledges it in ways which serve particular, sometimes anti-feminist, interests. It is consistent with current social and economic policy for all adults, even mothers, to take up paid employment, and so, with all adults now encouraged to be parent-workers, maternity, paternity and parenting leave laws make economic sense, as does the adoption of equality principles in parenting disputes. And while feminist goals of disrupting and problematising legal norms have extended ideas of family, they have not yet disrupted the (sexual) couple or the one-mother-one-father model of family, often with disheartening effects on individuals.
The same ambivalence can be seen in family law’s use of the liberal principle of equality. While non-discrimination and equality have a place in feminist discourse, and legal innovations such as the equal valuing of an increasing range of caring relationships or of financial contributions and unpaid labour to those relationships can be seen as progressive, they also reinforce a particular gendered norm of family living. That norm serves to disadvantage dependants of limited financial means within the unit, as well as all those living outside it. We see here how feminist concerns of equality, non-discrimination, care and subjectivity can be adopted to further agendas which may not be feminist at all. Feminism has not yet succeeded in adequately challenging the ideology of the family, which has such profound material consequences for women’s and children’s economic well-being.
The feminisation of poverty continues and may in fact be reinforced by the rhetoric of equality and choice.
What a feminist perspective may reveal at the beginning of the twenty-first century, however, is that law contains the conceptual tools to promote feminist principles, even while resistance to using them remains strong. Structures of power/gender are difficult to shift. And so feminist activism to reform or transform the law must continue, but, importantly, feminist theory must also continue its journey into understanding how gender is ‘done’, how it is constructed, deconstructed, made, remade and performed on a day-to-day basis.
Our twenty-first-century feminist perspective may also reveal that the nature or method of law’s regulation of family life is changing. We said above that family law has always been about the regulation of family responsibilities and family identities inside and outside the home. But while even fifty years ago that regulation took the form of direct prohibition or prescription of conduct, or of appeal to an absolute and assumedly consensus-based morality, much of the new regulation — the new family law — regulates by means of the normalisation of individual and social attitudes as much as individual and social conduct. We are encouraged, informed and educated to become good familial/social citizens.[103] On the one hand, the boundary between the public-private divide seems to have been breached, yet on the other, it seems only to have shifted as we make our familial selves and our families in this new context, in which our calls for respect for autonomy only appear to have been heard. Rooted in the rhetoric of choice, and located in the ethic of self-responsibility and equality with others, normalisation aims to make a good society by making good families. The feminist project must continue to be to recognise and challenge different forms of legal regulation so as to ensure that the good society and good families are good for all, including women and children regardless of their sexuality, economic means or ethnicity.