13 Loneliness and Care: Rethinking the Role of Family Law

WhaT IS a FamIly? Traditional Understandings of Family Law and Current ChallengesIn the past, a primary function of family law was 'channelling'. 1 Schneider explains that this channelling is a 'pattern of expected action of individuals or groups enforced by social sanctions, both positive and negative'.2 This was applied in relation to family law by linda mcClain in these terms: 'a basic purpose of family law is to support fundamental social institutions, like marriage and parenthood, and to steer people into participating in them'.3 In short, this channelling promoted a socially, religiously, and legally acceptable framework (marriage) within which couples could engage in sex, become parents and raise children.Family law played its part in this by providing a legal status and formal recognition to certain kinds of relationship (particularly marriage and parenthood) and, indeed, not providing recognition of other forms of relationship (such as cohabitation).This reflects the traditional approach that family law is primarily about getting people into and out of marriage.When cohabitation is discussed, the debate is often centred around whether unmarried cohabitants should be treated in the same way as married couples, with marriage being the default standard model against which other relationships are compared.4 lynn Wardle expresses the traditional family law view in this way: 'marriage is the primary expression of and preferred locus for the most meaningful and socially beneficial forms of intimate belonging.' 5 Family law historically reflected this and provided married couples with a special status with which came a set of rights and protections.That created an attractive background against which to enter into intimate relationships.But access to marriage and parenthood was restricted.as Schneider explains, marriage was seen as 'monogamous, heterosexual, and permanent'.6 as regards parents, the couple: should be married to each other.They are preferably the biological father and mother of their child […].They should assure [the child] 1