Are legal systems keeping pace with the changing realities of families in today’s Europe? Do legal systems cater to the needs of contemporary families? In a world where family structures and experiences have undergone significant changes over the past decades, discussing family laws and the broader legal regulation of family relationships inevitably brings these questions to the forefront. This special issue takes up these fundamental questions and delves into how different legal systems deal with family diversity, exploring some of its various manifestations and the legal questions it poses.
The concept of family diversity encompasses two interconnected layers. The first, which could be termed ‘constitutive’, represents a more external layer and pertains to issues of family formation. It reflects the plurality of paths through which contemporary family relationships are created or rearranged, which are increasingly different from the traditional archetype of a married different-sex couple raising their biological child(ren). Examples include families formed through assisted reproductive technologies (ART), separated families, or blended families.
The second layer of family diversity, which could be termed ‘normative’, has to do with the norms by which families and individual family members (ought to) live and develop. This layer is more internal and, as such, less immediately visible; yet it is also a critical site where the law can extend or withhold recognition and protection of diversity. ‘Normative diversity’ denotes the diverse ways in which families organise and experience their relationships, increasingly diverging from and questioning the implicit norms underlying or associated with the traditional family. One example could be a different-sex family where the father equally shares parental leave with the mother and/or is the child’s primary carer. While being traditional in its form, this family challenges the gendered division of labour upon which the functioning of the traditional family is based, by embracing a more equal sharing of caregiving responsibilities. Another example is that of families grappling with intimate partner violence, whose stories debunk a unified and harmonious image of family life, revealing instead realities of conflicting interests and power relationships among adults and/or between parents and children.
The contributions to this special issue examine areas where the law fails to adequately address and protect contemporary subjects of family law, including cohabitants, gendered subjects of intimate partner violence, queer children, trans families, surrogates, families created through surrogacy and cross-border families. Mustasaari and Goossens both explore the space in between the public and the private realms, seeking to dissect the interplay between private family law and public objectives in intimate relationships. From a Nordic perspective, Mustasaari focuses on intimate partner violence as the lens of her analysis, navigating the links between welfare governmentality and law’s exclusionary structures towards specific types of vulnerable, autonomous, gendered and relational subjects. Drawing on interview data, she investigates how the law overlooks specific forms of violence in the contexts of financial settlements, child residence and contact. Similarly, Goossens looks at intimate partner relationships, yet outside the marital context, to examine the precarity of the ‘vulnerable’ partner after the relationship has ended. Employing Belgian law as a case study, she probes the market/home dichotomy as a heuristic framework for exploring the lack of legal protections for cohabitants. Non-marital intimate relationships are also the starting point for Palazzo’s paper, which investigates another modality of relationships that currently sits at the fringes of (non-)recognition: polyamorous relationships. By examining case law from New York and New Zealand that recognised certain benefits for polyamorous partners, she highlights the limitations of these judgements, arguing that the functional comparative approach they employ to make polyamorous relationships legally intelligible fails to capture their unique complexities. The law’s failure to capture the unique and complex needs of queer children is at the centre of Joosten’s paper, which takes us to the realm of international law and explores the UN Convention on the Rights of the Child. Joosten sets out a queer theoretical framework to critically analyse the Convention, interweaving discussions on child agency and childhood constructions with heteronormative accounts of sexuality and gender.
After exploring adult relationships and the position of children, the special issue shifts its focus to the regulation of legal parenthood. In her article, Margaria highlights how birth registration serves as a channel for perpetuating and reinforcing traditional notions of care. By examining English, Swiss and European Court of Human Rights (ECtHR) case-law on the registration of trans birthing men and surrogacy, her analysis reveals that the tenacity of the mater semper certa est rule downgrades and renders caregiving relationships within non-traditional families invisible. The discussion on determining legal parenthood in surrogacy cases continues in Lima’s paper, which concentrates on the UK legal framework. Through an exploration of how the surrogate is conceptualised under English law and proposed law reforms, Lima argues that focusing on the surrogate’s negative intention to not be a parent is essential for establishing a conceptually robust regulatory framework that acknowledges surrogates’ agency, and can thus develop appropriate and comprehensive legal protections. Finally, Tryfonidou tackles the complex issue of cross-border recognition of parenthood through an examination of key cases adjudicated by the ECtHR and the Court of Justice of the European Union. Her paper investigates how European law has thus far addressed the protection gaps encountered by non-traditional families due to diverse national regulations of parenthood, and discusses ongoing initiatives and potential future developments.
Returning to the questions raised earlier, these contributions illustrate that the answer is seldom a straightforward ‘yes’ or ‘no’; it often lies somewhere in between. While regulatory approaches vary, it is clear that the traditional nuclear family, long considered the regulatory archetype for family law, is no longer the sole recognised family reality. From embracing divorce flexibility to providing forms of recognition to non-marital relationships and regulating assisted reproductive technologies, the law is showing increasing openness to family diversity, especially in its ‘constitutive’ dimension. Yet, the cultural, political, social and legal legacy of the traditional family still looms large. This legacy often influences the ways in which and, consequently, the extent to which legal systems address the needs of those in non-traditional families, sanctioning the norms by which they live.
To conclude, whilst a plurality of family forms and experiences now find some space within legal frameworks, the geography of this space – and the often winding and tortuous path to reach it – is determined by assumptions, expectations and norms rooted in the ideology of the traditional family. In the best scenario (for those concerned), this often results in what could be more accurately described as accommodation, rather than genuine recognition of family diversity on its own terms. And, as some of the contributions will clearly show, this is not solely a framing issue but has repercussions on the actual protections afforded to the relationships concerned. In the worst scenario, these assumptions, expectations and norms render the law blind to forms of oppression, violence and inequalities, marginalising or even pushing subjects of law outside the (protective) scope of the law.