Form v functionalism PDF

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Form v functionalism...

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OLIVIA

[Date]

Kathy Griffiths, From ‘form’ to function and back again: a new conceptual basis for developing frameworks for the legal recognition of adult relationships RECAP – ‘form-based’ recognition = reference to formalised relationships, where parties take steps to register it to give it a formal status “function based” recogntiion is where relationships are legally recognised based on their functions or characteristics. Court will conduct an objective overview of the relationship (usually retrospectively) with a focus on characteristics, analysed against certain statutory criteria – meeting the threshold deems the relationship legally relevant 

Argues that it is necessary to develop a nuanced approach to reform, where both formalised relationships and function-based recognition are used alongside each other to create a system which meets the needs of different relationships

Form based  ‘form’ is used simultaneously to refer to formalised relationships but also to the simple type of relationship, which can create confusion. Can be argued that E&W has a form based approach in both respects  Practical benefits – administratively efficient way of relationship recognition – recorded  Symbolic appeal – same-sex marriage was considered necessary partly because formal recognition is an end in itself, and a means to an end. Was also acknowledged as a key argument for CPs – ‘gives legitimacy’ and ‘provides a framework whereby same-sex couples could acknowledge mutual responsibilities...’ – although the symbolism of CPs was greatly varied; some viewed it as a consolation prize whilst cases such as Steinfeld showed it to be a long-awaited preferable option  Respect individual choice – another key reason behind the introduction of CPs: respects individual choice to be subject to legal rights and responsibilities because of the opt-in requirement. [With function-based, technically individuals who meet the criteria threshold can be subject to legal duties (and rights) without having intended such obligation, and without even being aware – less just]? o What is meant by choice? Rebecca Bailey Harris – arguing that formalised relationships respect choice are problematic, because they assume freedom of choice, and informed choice, which is not universally justified o There are varied reasons why people marry that cast doubt upon how free a choice to marry may be – Eekelaar and Maclean found some marry due to desire to comply with convention i.e. religious/parental views – long-standing cultural and social arrangements and dominant ideologies (Fineman) – is marriage in this regard truly a free choice? In a minority of cases people married for pragmatic reasons i.e. immigration law o Can there be freedom of choice when there is consistent public misinformation? Around half believe in the common law marriage myth (and thus believed they had legal rights when they did not)  Legal reasons for formalising relationships – such as marriage allowance etc. many people are unaware of legal realities of their relationship status, so may not actively choose to formalise their relationship; if there was increased public knowledge, a form based approach may be more widely utilised due to its significance being recognised. However, it is difficult to argue that cohabitants are making an informed choice not to attach legal consequences to their relationship, and that spouses are making informed choices to be subject to them, when there is misunderstanding about the law that applies to different relationships. Also, the overriding point is that legal reasons are often not a priority when deciding whether or not to marry Function based

OLIVIA

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Currently the law adopts a form-based approach, which is why many reform proposals focus on, or lean towards, a functional approach As married and unmarried couples are likely to still perform similar functions within their relationships, are they not both deserving of equal or similar protections? Barlow, Duncan, James and Park support the introduction of function-based reforms that allow for legal recognition of cohabitants alongside recognition of formalised relationships – reforms are necessary to protect the economically disadvantaged partner on relationship breakdown. Relationship generated disadvantage can occur in both married and unmarried relationships, so they require the same legal response They ask, why is marriage privileged? Is it because it is formalised? A state endorsed arrangement embodying a public commitment? Or because of the functions and effects of marriage? Concern with proving when a relationship is eligible for legal recognition under this framework – can be seen in other areas of family law e.g. parent and child Millbank – when a relationship breaks down, there is no longer a ‘functioning’ family unit for the court to look at – confronted with conflicted, dysfunctional individuals with contradictory accounts Time consuming and challenging for either the court or the parties involved to prove functions retrospectively, especially in a relationship context which is less formal and unlikely to have detailed/recorded accounts – UNCERTAINTY Should not impose ‘unchosen’ recognition onto individuals in a relationship who did not desire this – avoided getting married but yet are landed with similar rights and duties? Seems illogical and disrespects autonomy – see Elizabeth Scott. Deech – some cohabitants do not marry because they reject the legal incidences of marriage – function-based reforms should be avoided so that there is a ‘corner of freedom’ couples can escape in Law Commission – recommended that a new statutory scheme is necessary to create a framework regulating financial consequences of cohabitation breakdown, which would operate alongside the current recognition of formalised relationships – prominent reason of protecting the economically disadvantaged partner Contrast between proving the existence of a relationship under a function-based framework VS administrative efficiency of formalised relationships What is informing the functional view? – based on ideal vision of family relationship could affect the number of relationships that would be recognised legally – Millbank: perpetuates ‘heterosexist model[s] of relationships which may not be [an] appropriate [reflection]’ – is this a [danger that the law would stagnate and not move with cultural changes? How would different cultural/social views be reflected in a law that is based on a conventional view?]...