Autonomy, Care and Family Law, Anna Heenan

A number of years ago, a student talked passionately to me about his libertarian views. When I put on my family law hat and asked him where things like child abuse fitted into his philosophy, he had no answer. He said he would have to ask someone else but he did not come back with a rational person reply. In short, our personal lives are much more random and driven by emotion to be put into a neat straight jacket. The law has often tried to do so, and lawyers like the clarity and consistency of rules and coherent policy. Human nature does not always work that way.

So, I was delighted to pick up Autonomy, Care and Family Law and read it, frequently nodding my head in agreement. In short, the thesis in the book is that neoliberalism and especially its ideas of autonomy do not gel with the concerns of family law. The focus in the book is on caring. We do not care for our children, or regularly in my case for grandchildren, because of some rational economic choice or as an exercise of our individual rights. We do so for much more amorphous factors such as love and a sense of common humanity. So, as Heenan puts it, ‘[t]he problem with neoliberal-influenced understandings of autonomy is that they fail to account for the demands of caring responsibilities and the ways in which such responsibilities are divided in society’.¹ Care thus becomes invisible in law and society. ‘Caring relationships are messy and demanding. Neoliberal-influenced ideas of autonomy fail to understand and account for this’.² Ultimately, ‘neoliberal-influenced ideas of autonomy cannot be rehabilitated as a guiding principle of family law’.³

Heenan writes from the perspective of the law in England and Wales. The case outlining the deficiencies of neoliberalism and the need for change is well made out. The proposed changes ‘placing care at the heart of family law’ in Part IV are perhaps rather modest and certainly not radical. There are reforms suggested to state-funded childcare and parental leave, and some ‘rethinking’ of more traditional family law topics involving finance and day-to-day care. However, not a lot stands out from the reviewer’s experience, which is based in New Zealand. Instead, more questions are raised. It is fair to say that in New Zealand we look less to England and Wales for family law reform and more to other jurisdictions, including those in Canada, for inspiration. Nevertheless, the broader critical examination of neoliberalism hits home.

Heenan’s research includes an analysis of Swedish law. Two out of the seven chapters in the book are devoted to Sweden. As with the chapters on English and Welsh law, interviews with people who have had family law issues were held and quotes used as part of the discussion. The Swedish model is one that gets a good press, especially in relation to the State and the commitment to gender equality. For example, parental leave became gender neutral in 1974, which was not the case in the UK until 2015.⁴ There is an expectation in Sweden that both parties will engage in paid work, and thus should both be entitled to benefits associated with the birth of children like parental leave. When it comes to property division, Sweden has a community property regime that operates at the end of a relationship. The default rule of equality means that unpaid care is accounted for, even if approximately but often to the advantage of wives. Sweden also provides for unmarried couples (this reviewer does not refer to ‘cohabitants’ as married couples also are known to ‘cohabit’). They receive a lesser form of community property relating to the home and household goods.

Heenan is somewhat enamoured of the Swedish law, especially compared to that in England and Wales. It has less truck with neoliberalism, although the curious phrase ‘statist individualism’ is used to describe the more positive role of the State in personal matters. However, Heenan does recognize some limitations in the Swedish scheme. There remains a degree of invisibility of care. For example, ‘[w]hile gender equality is a powerful narrative in Sweden, it is not fully recognised when it comes to sharing of caring responsibilities’.⁵ Moreover, one group of women fits into the pattern far less easily: those from immigrant families. Here, there are cultural differences that make a Western paradigm less suitable, neoliberalism above all. We shall return to this theme shortly.

As I read Heenan’s excellent book, I naturally asked how it relates to my own country New Zealand. Although a British colony in the past, family law is increasingly taking a different path from Britain. Yet, we received the full force of neoliberalism ironically from a Labour Government elected in 1984. It was followed in 1990 with a conservative National Party Government that continued neoliberalism with even greater ardour. This century has seen the loosening of some of the neoliberal shackles, but some hesitation remains over the role that the State should play. Despite this political history, New Zealand family law, especially with respect to property, is less affected by neoliberalism than Heenan argues is the position in England and Wales. In many ways, New Zealand law is closer to that of Sweden. Why is this?

The principal piece of legislation dealing with property division on breakdown of a relationship is the Property (Relationships) Act 1976. When it was originally passed, it was called the Matrimonial Property Act 1976, but it had a name change when significant reforms were made by amendments enacted in 2001 (in force the following year). Crucially, the original statute was passed before neoliberalism gained momentum and it had the support of parties on the left and the right. It ushered in a deferred community system not unlike that in Sweden. Putting it rather simplistically, the Act defined ‘matrimonial property’ as the house and ‘family chattels’ along with the gains made during cohabitation. Matrimonial property was divided equally subject to narrow exceptions. The marriage was referred to as a ‘partnership’, rather than two individuals who happened to live together. The equal division rule was designed to recognize the non-financial contributions of both parties, and in this way care, especially of children, was factored in so that ‘the hypnotic influence of money’⁶ was relegated. The law still states ‘There is no presumption that a contribution of a monetary nature … is of greater value than a contribution of a non-monetary nature’.⁷

As a result of the 1976 Act, care received a noticeable degree of visibility. Yet, it transpired that it was hardly enough for two main reasons. First, the law did not apply to unmarried couples where care was largely invisible. The 2001 reforms extended the law and the equal division rule to ‘de facto relationships’⁸ that lasted three years or more and to shorter ones under certain circumstances (for instance where there is a child). The word ‘matrimonial’ was consequently changed to ‘relationship’. The law applies to same-sex couples as well as opposite-sex ones.

Secondly, equal division of property sounds good and is easy to understand. However, it does not necessarily mean that the parties will truly be in an equal position once they go their separate ways. One of them may well be in a much weaker income situation than the other. This may be for a variety of reasons, but the important one for the purposes of this book review is that it may be the result of caring for children. How should the law address this unequal situation? Will it leave this consequence of caring as an invisible phenomenon, will it treat the parties as autonomous actors now pursuing their individual journeys as neoliberalism would encourage us to do, or will it endeavour to equalize the parties’ position? Typically, the latter will mean a greater chance of genuine gender equality.

While New Zealand has laws on adult maintenance, they are used modestly. Instead of maintenance, the mechanism that Parliament created with the 2001 reforms was structurally built into the deferred community property division regime. A court, on applying the equal division rule, can also grant one party compensation for ‘economic disparity’.⁹ This party must be able to show a significant disparity in likely future income and living standards between the two parties and must also show that the disparity is related to the division of functions during the time of living together. The typical illustration of this is where the claimant has cared for children, often giving up or diminishing their careers. Caring thus becomes more visible in the law and is accounted for in property terms. Pure equal division of property is modified to obtain something closer to real equality, sometimes labelled ‘equity’. It is not a perfect mechanism, but it provides rough justice to carers. To an extent, the scheme becomes deferred community of both property and income.

The most difficult issue is calculating the amount of compensation: predicting the financial future and a person’s working life span involves an element of guesswork, compounded by uncertainty over what percentages of future income would be fair to share. The New Zealand Supreme Court has given some guidance,¹⁰ and this has enabled the system to operate tolerably well. However, the New Zealand Law Commission has disagreed and has proposed a new formulaic method to replace both economic disparity and maintenance.¹¹ This is not the place to go into more detail especially as there is no likelihood of the government’s implementing the Law Commission’s recommendations in the near future.¹² Suffice it to say that the proposal does acknowledge the place that caring can have in the division of property and finances. Furthermore, it would not be top of neoliberalism’s agenda.

Heenan explores the role of care not only in financial matters but also in actual child arrangements. Here, one might be forgiven for thinking that care of children is what it is all about. However, this may be deceptive. For example, daily care may ostensibly be shared, yet this may belie the reality. Heenan notes that her ‘research has found that care is not always shared equally even where time is’.¹³ Which parent buys the school uniform or takes the children to the doctor? How then should the law be drafted? ‘[T]he need to place care at the centre of family law does not necessarily dictate a particular form that the law should take’.¹⁴ Does this invite a change to the centrality of the welfare of the child principle? Where do the child’s views slot in? Importantly, ‘care within families has a relational element’, which it is important to recognize.¹⁵ This suggests that, after separation, the child’s relationship with both parents is usually vital, thus giving central place to caring relationships.

This discussion, and indeed much in the book, makes me think again of my own New Zealand jurisdiction. One of the most significant developments in the country’s family law, and indeed the law more generally, is the place of culture in caring relationships. First and foremost is ‘te ao Māori’ or the world view of the indigenous population. The New Zealand Supreme Court has stated that ‘tikanga’ or the Māori ways of doing things is part of the law.¹⁶ While other cultural groups, especially those that are linked to the Pacific Islands and the growing Asian populations, are also relevant, it is the indigenous culture that has real traction. When it comes to child arrangements, the relational aspect is huge. However, it is not the child’s relationship with parents that is primary but that with the wider family or ‘whānau’. In some instances, tribal and sub-tribal relationships may also play a key part, the words for tribe and subtribe being ‘iwi’ and ‘hapū’. In ideal and rather oversimplified terms, the care that ultimately counts is that provided by whānau, hapū, and iwi.¹⁷

The cultural approach to caring and child arrangements is a far cry from the individualism beloved by neoliberalism. Autonomy makes sense, if at all, only in a collective sense. The principle of the welfare of the child is to be seen not as a stand-alone concept but one that applies in the cultural context. While the role of the central State could be reduced as neoliberals would like to see, regulation would still exist but devolved in a way that is consistent with tikanga. Heenan’s message making care central to the law is reinforced when we factor in this view of culture. However, the direction of the law is rather different.

There are many challenges with this cultural approach. How do we know what tikanga is, especially as it varies among iwi? How do we apply it across cultures, for example where a child has both Māori and Pacific (or European or Asian) origins? What if the whānau is weak or even dysfunctional? How to we translate the concepts from childcare arrangements to the division of property? Heenan would surely agree that there are complexities as we explore these issues and wrestle with law reform. She would surely, however, find little of value in neoliberalism as we do so. Indeed, she states that ‘the neoliberal paradigm where economic rationality is prized and expected … fails to understand that family decisions may be motivated by the needs of the family as a whole, even if collective interests conflict with the interests of individual family members’.¹⁸

It is a joy to read Heenan’s book. She is not afraid to tackle head-on one of the political philosophies that has had considerable momentum over the past few decades, at least in the Western world. Swedish family law has been affected less than England and Wales. Readers such as this reviewer will be spurred to ask how neoliberalism has influenced the development of family law in their own jurisdictions. They are very likely to agree with Heenan that neoliberalism at its heart does not sit well with the principles that many family lawyers hold dear. In particular, it clashes with the rightful place of caring responsibilities and the need to make them visible in the law. We can add that cultural diversity barely figures. We need tools other than neoliberalism.

Footnotes