Obligations Between Adult Partners: Moving From Form to Function?

Abstract

It was observed at the end of the twentieth-century that in relation to family law policy in the UK, the ‘parent-child relationship was the only clearly ascertainable family relationship to which legal consequences can be attached’ and it was predicted that relational obligations between adult partners would become individually negotiable. Some considered that while parenthood would remain subject to normative obligations, the legal position of married and unmarried couples would be equated via the gradual de-regulation of marriage through increasing the capacity of adults to define the terms of their own relationships. However, recent policy and practice-based developments reveal a different picture. The purpose of this article is to consider the interaction between these mutually informing discourses and to suggest that rather than developing a more function-based approach to the imposition of intra-familial obligations, relationship status continues to carry determinative weight. Particular attention will be paid to evolving jurisprudence in the ancillary relief context which has given the fact of marriage, by itself, greater distributive consequences on divorce. It will be argued that contrary to predictions at the end of the twentieth century, the regulatory gap between married and unmarried relationships is becoming wider, and that obligations between parents which are created by the ‘joint parenting exercise’ are being confined, in both arenas, to remedial awards based upon the disadvantaged economic position of the primary caregiver.

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