Oxford Journal of Legal Studies, Vol. 28, No. 1 (2008), pp.

165182
doi:10.1093/ojls/gqm026
Published Advance Access February 29, 2008

The Normal Order of Family Law

MARK HENAGHAN*

1. The Theory
The title of this review article is a deliberate response to John Dewars
provocative article The Normal Chaos of Family Law.1 Dewar argues
that family law can be characterised as chaotic, contradictory or incoherent2
and that this is normal because family law engages with areas of social life
and feelingnamely love, passion, intimacy, commitment and betrayalthat
are themselves riven with contradictions or paradox.3 For Dewar the
main restraining force on the chaos of family law is the practices of
legal and other professionals associated with its day to day interpretation,
application and administration.4 Whilst provocative, this account of family
law is unsatisfying and unappealing. All law is about what particular lawyers
and judges do in the particular case; there is always an interpretive element.5
At a deeper level, the chaos theory distracts thinking from the development
of a coherent theory of family law. It hands family law over to a professional
elite.
John Eekelaar, who has thought about family law from a theoretical
perspective throughout his distinguished career, presents in his latest book,
Family Law and Personal Life,6 a theory of family law which I have termed the
normal order of family law. By normal order I mean the enduring forces

A Review of J. Eekelaar, Family Law and Personal Life (Oxford: Oxford University Press, 2006). Thank you to
Kellee Clark, LLB(Hons)/BCom graduate of the Faculty of Law, University of Otago for her invaluable research
assistance with this article, Karen Warrington, Executive Assistant, Faculty of Law, University of Otago for her
impeccable word processing skills, and Dr Julie Dickson, University of Oxford, and Donna Buckingham, Senior
Lecturer, University of Otago, for their helpful comments.
* Professor and Dean of the Faculty of Law, University of Otago, Dunedin, New Zealand.
Email: mark.henaghan@stonebow.otago.ac.nz
1
(1998) 61 Modern Law Review 467485.
2
Ibid at 468.
3
Ibid at 468.
4
Ibid at 485.
5
K. N. Llewellyn, The Bramble Bush: On Our Law and Its Study (New York: Oceana Publications, 1951).
6
Oxford: Oxford University Press, 2006.

The Author 2008. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oxfordjournals.org

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which have kept family law going for many centuries as a body of law separate
from politics, in a plurality of jurisdictions and legal systems.7
At the core of John Eekelaars theory is that, formally and informally, the
regulation of family practice has been through the exercise of power.8 The
major theoretical contribution feminist scholarship9 has made to family law is
through its analysis of power relations between the genders. Critical theorists of
family law, such as Michael Freeman, have emphasized that family law needs
to be socially located and that family law cannot be understood if it is expected
to operate neutrally, arbitrarily or cocooned from indices of power.10 It has
been the normal order of family law from earliest times for it to be about the
exercises of power and constraints on powernot only power as between
individual family members, but power as between different ideas of what family
should be. Harold Berman in his book Law and Revolution: The Formation of the
Western Legal Tradition11 says that from earliest times the church had a great
deal to say about marriage and the family, but had to do battle with deeply
rooted tribal, village and feudal customs.
In Family Law and Personal Life the exercise of power in family law is not
just analysed from the viewpoint of power relations between the genders,12 or
between parents and children,13 or between the state and the family.14 There is
a particular emphasis on the exercises of power between the present generation
of adults and the nextthe attempt by previous generations to contract
their successors is a major pre-occupation of the text.15 This approach is
based on Karl Poppers idea of the open society,16 written in response to
the fascist regimes of the last century. In Poppers own words the future
depends on ourselves, and we do not depend on any historical necessity.17

7
Harold Berman traces the formation of Western legal traditions in H. Berman, Law and Revolution
(Cambridge: Harvard University Press, 1983).
8
Above n 6 at viii.
9
Ibid. Outstanding examples of feminist scholarship include M. A. Fineman, The Illusion of Equality: The
Rhetoric and Reality of Divorce Reform (Chicago: University of Chicago Press, 1991); R. Graycar and J. Morgan,
The Hidden Gender of Law, 2nd edn. (Sydney: The Federation Press, 2002).
10
M. D. A. Freeman Towards a Critical Theory of Family Law [1985] Current Legal Problems 153185,
at 154155; M. D. A Freeman (ed.), The State, the Law, and the Family: Critical Perspectives (London: Sweet
& Maxwell, 1984).
11
Harvard University Press, 1983 at 226.
12
This has been the primary focus of feminist scholarship. See, for instance, K. Mahoney Gender Bias in
Family Law (1996) 2 Butterworths Family Law Journal 308316a; Katherine ODonovan, Sexual Divisions in Law
(London: Weidenfeld & Nicholson, 1985).
13
This has been the primary focus of childrens rights scholars. See, for instance, M. D. A. Freeman, Whats
Right with Rights for Children (2006) International Journal of Law in Context 2(1), 8998.
14
This has been the primary focus of critical family theorists. See, for instance, M. D. A. Freeman, Towards a
Critical Theory of Family Law above n 10; L. Harris, The State, the Family and the Private Space:
Reconstructing the Liberal Vision [2000] UCL Jurisprudence Review 278299; F. Olsen, The Myth of State
Intervention in the Family (1985) 18 University of Michigan Journal of Law Reform 835864; M. Fineman, What
Place for Family Privacy? (1999) 67 George Washington Law Review 12071224.
15
Above n 6 at viii.
16
Karl Popper, The Open Society and Its Enemies, vols 1 and 2, 4th edn. (London: Routledge, 1962).
17
Ibid at vol. 1, 3.

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We must become the makers of our own future.18 This approach leads to
constant re-evaluation of why any person should have power over another
person or why a particular idea of family should bind the next generation. This
is healthy because often power can be assumed as the way things have always
been and can lead to the diminution of the lives of others.
The concept of the open society is an ideological assumption and not
necessarily a description of the way things are. According to the law of physics,
order leads to disorder and chaos unless there is some external energy source to
maintain the order.19 The antidote to power proposed by John Eekelaars
theory is to redistribute it through the allocation of rights based on the core
right to be freed from oppression and to achieve competence20 to comprehend
and articulate ones own interests. The values of friendship, truth, respect and
responsibility are used in the book as litmus tests for how personal lives are
currently regulated and as a means to achieve a just family law system for an
open society. The theory looks at family law from the viewpoint of the intimacy
of personal life and its unlimited potential for human happiness and
development, provided it is given the space to do so. This is refreshingly
liberating and inspirational in a field of law which in the past has been
pervaded by detailed intrusion into the intimacy of personal life by, for
example, rules on when a marriage was or was not consummated. The
theoretical framework treads with elegance and compassion that delicate path
between giving people the freedom to define their own intimate lives, and
protecting people from the harms others may do to them in personal
relationships.
The book achieves its aim of setting out a new paradigm for thinking about
how our personal lives should or should not be regulated. It provides the means
for evaluating current laws and policies if we want to live in a society where the
freedom of every member to shape their own lives and their relationships is
given priority. The theory is based on an optimistic and positive view of human
naturethat at our core we have the potential to enhance each other through
our intimate relationships.

2. The Application: Power and the Antidote of Rights

A. Instruments of Power
Two instruments of power have been used in family law. One is instrumentalismwhich means promoting the interests of a dominant member, such as
18

Ibid at vol. 2, 280.

The second law of thermodynamics is attributed to Sadi Carnot. See S. Carnot, Reflections on the
Motive Power of Fire, and on Machines Fitted to Develop that Power, Dover Reprint (New York: Dover Publications,
1988).
20
Above n 6 at 137.
19

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the common law giving close to absolute rights to husbands and fathers to
govern over their children. This meant the interest of a husband and father
were given legal preference. His wifes property became his; his childrens
labour became his entitlement. Those arrangements were mirrored in the
political world whereby citizens were subject to the overriding power of the
monarch.21 A good monarch and a good father and husband were expected to
exercise their power morally for the benefit of others.
The erosion of absolute political power led to welfarism whereby power is
subject to a legal duty to advance the interests of the vulnerable.22 Welfarism
can be abused and take on the guise of instrumentalism under another name.
For example, the medicalization of child abuse to protect children led to giving
too much power to the medical profession, with the Cleveland Affair23 as the
high water mark. Many children were wrongfully removed from their parents
based on a medical test for sexual abuse which was found to be unscientific.
The peak of welfarism was the removal of many children from their families
in the UK,24 in Australia25 and in New Zealand,26 and their placement with
other families for their well-being. In the UK this was described as the chief
glory of what was known as the child rescue mission.27
A user-pays society in the 1980s has led to what is described in the book
as a retreat from welfarism, whereby parents become primarily responsible
for their children with minimum state intervention into families. The history
of this movement in New Zealand shows that it was motivated by a mixture
of contradictory pressures.28 First, there was a belief that intervention
was targeting lower socio-economic families and families of the indigenous
people in New Zealandthe Maori. The ideas emerged that these families
should be given more room to participate in decision making through
the vehicle of the family group conference,29 and that the state should
play the role of supporting families through services rather than removing
children.

21

Ibid at 11.
Ibid at 13.
Report of the Inquiry into Child Abuse in Cleveland 1987 (London: HMSO, 1988).
24
See J. Eekelaar, The Chief Glory: The Export of Children from the United Kingdom (1994) 21 Journal
of Law and Society 487504.
25
See, for instance, P. Read, The Stolen Generations: The Removal of Aboriginal Children in New South
Wales 1883 to 1969 (NSW Ministry of Aboriginal Affairs, Occasional Paper No 1, 1982) at 1014.
26
A. Else, A question of adoption: closed stranger adoption in New Zealand, 1944-1974 (Wellington, New Zealand:
Bridget Williams Books, 1991).
27
Rev. N. Waugh (ed.), These, My Little Ones: The Origin, Progress and Development of the Incorporated Society of
the Crusade of Rescue Homes for Destitute Catholic Children (London: Sands & Co, 1911) at 131133, quoted in
Eekelaar, above n 24, at 496.
28
P. Tapp and N. Taylor, Protecting the Family in M. Henaghan and B. Atkin (eds), Family Law Policy in
New Zealand, 3rd edn (Wellington, New Zealand: LexisNexis, 2007) at 81166.
29
Sections 2025 of the Children Young Persons and Their Families Act 1989 (NZ).
22
23

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Saving costs was the other pressure.30 Reports on the effectiveness of the
Children Young Persons and Their Families Act 1989 (NZ)31 show that the
availability and standard of state support for families in crisis has fallen away.
An excerpt from an article in the National Business Review quoting the first
General Manager of the Children and Young Persons Service captures the
market ideology of the time:
. . . the Treasury actually suggested to us, because we couldnt manage with our
budget, that we should actually do fewer child abuse investigations . . . thats just
unbelievable!32

The books theory is that family behaviour models state behaviour. If the
state shows less responsibility to children at risk, then it is no surprise that
families follow suit.33 For example, in the western world today a standard
feature is the exercise of arbitrary power to repel the threat of terrorism.34
Within families a sad feature of family life is the arbitrary exercise of power
through force by stronger members of families on more vulnerable members.35
Responsibility cannot be guaranteed nor required.36 Whom should we
trust?37 Welfarism grew out of a distrust of instrumentalism leaving power in
one persons hands. Dissatisfaction with welfarism grew out of a distrust of how
state officials defined the interests of others. Thus Martha Fineman, in her
book The Illusion of Equality,38 exposes the myth of neutrality claimed by the
social sciences to decide what is best for children. Sometimes family law trusts
when it should not, by leaving vulnerable children with abusive parents who
harm them.39 Other times family law distrusts when it should trust, by limiting
30

Above n 28.
K. Mason, Review of the Children, Young Persons and their Families Act 1989, Report of the Ministerial
Review Team to the Minister of Social Welfare Hon. Jenny Shipley (Wellington, New Zealand: Government Printer,
1992); M. J. A. Brown, Care and Protection is About Adult Behaviour, Ministerial Review of the Department of
Child, Youth and Family, Report to the Minister of Social Services and Employment, Hon Steve Maharey (Wellington,
New Zealand: Ministry of Social Policy, 2000).
32
Garolin Jeff, Politics, National Business Review, 14 July, 2000.
33
There were 61 deaths from assault for children under 18 years in New Zealand from 1997 to 2001, and,
in fact, children in New Zealand were three times more likely to die from assault that children in Sweden:
M. Duncanson, Child deaths and serious injury as a result of assault in Sweden and New Zealand (Wellington: Office
of the Commissioner for Children, 2006) at 2.
34
J. Pilger, The Death of Freedom, The New Statesman, 9 January, 2006, available at http://
www.newstatesman.com (last accessed on 20 September, 2007).
35
David M. Fergusson, L. John Horwood, and Elizabeth M. Ridder, Partner Violence and Mental Health
Outcomes in a New Zealand Birth Cohort (2005) Journal of Marriage and Family, 67(5) at 11031119.
36
Attempts to do so are discussed in J. Eekelaar, The End of an Era? (2003) 28 Journal of Family History
28(1), at 108122.
37
See Carl E. Schneider, Family Law in the Age of Distrust (1999) 33 Family Law Quarterly 447460.
38
M. A. Fineman, The Illusion of Equality (Chicago: University of Chicago Press, 1991) at 113114.
39
See, for instance, Secretary of State for Social Services, Report of the Committee of Inquiry into the Care
and Supervision Provided in Relation to Maria Colwell (London: HMSO, 1974); and in New Zealand: J Piliais,
Rev T. Mamea, and S. Opai, Dangerous Situations: The Report of the Independent Inquiry Team Reporting on the
Circumstances of the Death of a Child (Wellington: Department of Social Welfare, 1989); Commissioner for
Children, Final Report on the Investigation into the Death of James Whakaruru, 19941999 (Wellington: Office of the
Commissioner for Children, 2000); and C. Kiro, Report of the Investigation into the Deaths of Saliel Jalessa Aplin
and Olympia Marisa Aplin (Wellington: Office of the Commissioner for Children, 2003).
31

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contact to a parent where there is no proof of harm but just a vague risk of it.40
The exercise of power is the normal order of family law. The history of family
law41 is a history in which ideas of family have determined who has been
trusted to exercise power and who has been left powerless.

B. The Antidote of Rights

A right is defined in the book as a claim of entitlement to an end-state
necessary to protect an interest and an implication that the interest possesses
sufficient weight to impose a duty to activate the means contemplated to
achieve the necessary protection.42 The case for rights is premised on the
assumption that the individual has the capacity to have a genuine appreciation
of his or her goals.43 The entitlement which is the basis for the right
presupposes a moral system from which a moral principle can be drawn to
justify the particular right. But moral systems and moral principles are always
contestable. Arthur Leff has said Sez who!44 when showing that there is no
knock out argument for showing that one moral principle should prevail over
another. All we have is social acceptance, which Alan Dershowitz45 has argued
should be the basis for all rights claims. Social acceptance can be a dangerous
beast, a bit like riding the unruly horse of public policy.46 It will depend on
which groups voices are heard. It is essentially a political contest and like all
political contests depends on who has the means and abilities to convince
others that their interests provide the basis for a moral claim that should
become a legal claim. The rights of the least visible and more marginalized
groups are frequently not recognized.47 Family law academics need to be
vigilant about the rights of those on the periphery.
Rights have been claimed through political action, such as married womens
rights in relation to their children and property, and mens claims to rights
to have equal care of their children. Judges create rights, such as the
recognition in Miller v Miller and McFarlane v McFarlane48 that property
generated by the couples joint efforts should always be divided equally. Human
rights, via the Human Rights Act 1998 (UK), have an impact, as in the case of
40

See, for instance, S v S [1993] NZFLR 657; D v D [1992] NZFLR 563.

Above n 7.
Above n 6 at 135.
43
Ibid at 137.
44
A. A. Leff, Unspeakable Ethics, Unnatural Law (1979) Duke Law Journal, 6 at 12291249.
45
A. Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (New York: BasicBooks, 2005).
46
This metaphor is attributed to Chief Justice Hobart, see P. H. Winfield, Public Policy in the English
Common Law (1928), Harvard Law Review, 42(1), 76102 at 8788.
47
H. Johnston, M. Henaghan, and B. Mirfin-Veitch, The experiences of parents with an intellectual disability
within the New Zealand Family Court system (2007) 5 New Zealand Family Law Journal, 226236;
M. Henaghan, Themes and Priorities in Family Law Reform in New Zealand: All Families are Equal but
some are More Equal than Others, in L. D. Wardle and C. S. Williams (eds), Family Law: Balancing Interests and
Prioritising Priorities (Buffalo, New York: William S. Hein & Co, 2007) at 8694.
48
[2006] 1 FLR 1186.
41
42

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Ghardon v Godin-Mendeza,49 where a same sex couple were held to come

within the phrase living together as husband and wife in legislation concerning
the succession of protected tenancies because not to do so would have been
discrimination on the ground of sexual orientation.
Jeremy Waldron argues that rights are best decided on the basis of equal
participation by all members of the community.50 John Eekelaar prefers
constitutionally set standards because the alternatives are unattractive. First,
because the legislature would not be able practically to consider all claims to
human rights standards, and secondly, we would lose the externality of the
standards as a basis for critiquing our lawsto abandon external standards
would be a great loss because we should have learned to be very fearful of the
unrestrained exercise of power in the name of popular self determination.51
Human rights documents have made no difference to how prisoners are treated
at Guantanamo Bay.52 An overriding entrenched constitution of rights cedes to
others, namely the society which creates them and the judges who apply them,
the power to determine the norms for future societies. Entrenched codes
of rights put in place standards which close down the options for the future.
The only room to move is that created by judicial interpretation. But each
generation needs to be able to reprioritize its own rights agenda. That theme is
central to the theory of family law throughout the book. A concession to
constitutionally set standards is not necessary.
The core right in the theory presented in the book is the right to be freed
from oppression and to articulate ones own interests. This is a necessary
precondition to maintain an open society.53 But it must become part of the
minds and hearts of the community before it will have any effect. Childrens
rights illustrate this. Section 6 of the New Zealand Care of Children Act 2004
requires a court hearing proceedings involving a child both to provide the child
with reasonable opportunities to express views, and to take such views into
account. The section removed the previous criteria of having regard to age and
maturity54 which is used in the 1989 United Nations Convention on the
Rights of the Child.55 The first case on this provision to go to the New Zealand
Court of Appeal, HC v PS,56 shows that seriously adjusting adults attitudes
49

[2004] 12 AC 557.
J. Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999) at 297, cited in above n 6 at 153.
Above n 6 at 155.
52
See Al Odah v United States, 355 U.S. App. D.C. 189; 321 F.3d 1134; 2003 U.S. App. Lexis 4250; Rasul v
Bush 215 F. Supp. 2d 55; 2002 U.S. Dist. Lexis 14031. See further, In the Name of Counter-Terrorism: Human
Rights Abuses Worldwide, A Human Rights Watch Briefing Paper for the 59th Session of the United Nations
Commission on Human Rights (2003) at 23. Available at http://hrw.org/un/chr59/countrer-terrorism.pdf
(last accessed on 21 September 2007).
53
Above n 6 at 137.
54
Section 23 of the Guardianship Act 1968 (NZ).
55
Article 12. The full text of the Convention is reprinted in: Office of the United Nations High Commissioner
for Human Rights, The Core International Human Rights Treaties (New York: United Nations, 2006).
56
Court of Appeal, CA 115/06, 18 October, 2006.
50
51

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and social structures57 so that children can be heard is easier said than done.
In the case, the views of a 4-year-old were not ascertained in either the Family
Court or the High Court.58 The Court of Appeal ruled that the direction to
take the views of the child into account suggests the purpose of the exercise is
associated with outcomes and not just process.59 The Court went on to say
there is not much point in requiring a Court to ascertain the views of a child
who is not capable of having or forming a view which is material.60 Given that
deciding a childs welfare is an open-ended question, any view of the child
should be material otherwise we have not moved past the point made by John
Eekelaar that if the decision-maker is convinced about what is best for the
child, why should the childs own views matter?61 Even when the standard is
clearprovide reasonable opportunities for a child to express views62the
courts are not yet prepared to adjust their processes to enable this to happen.
An open society requires constant challenging of action rather than assuming
that, once the general standard is in place, the problem is solved.
The theory of rights in the book assumes self-identity, self-motivation and
freedom from the oppression of others are primary social goods which enable
the development of full potential. Such a position can be criticized for having
a Western values bias, but in the context of ideas about ways of living it is
necessary to take a position, justify it, and show where it leadswhich is what
Family Law and Personal Life does. Any behaviour which diminishes the
potential of another must be challenged.

3. Personal Law
John Eekelaar contends that, with the retreat from fault divorce and the legal
and social recognition of a wider range of relationships outside marriage, we
should abandon the label family law and replace it with the expression
personal law.63 This is consistent with the philosophy of the open society
which must above all ensure that its members have the opportunity to evaluate
on their own terms, the norms which govern them, and contribute to the
adaptation and evolution of those norms.64 This is a radical proposal with
significant symbolic messages. Power is taken away from the group identity of
family, which has significant ideological force65 supporting it, and given back
57
J. Eekelaar, The Importance of Thinking That Children Have Rights in P. Alston, S. Parker and
J. Seymour (ed.s), Children, Rights and The Law (Oxford: Clarendon Press, 1992) at 228.
58
See M. Henaghan, Case Note: Childrens Views Two Steps Forward, One Step Back [2006] 5
New Zealand Family Law Journal 154.
59
Above n 56 at para 6.
60
Ibid at para 9.
61
Above n 6 at 159.
62
Section 6 of the Care of Children Act 2004 (NZ).
63
Above n 6 at 31.
64
Ibid at 167.
65
See M. Henaghan, Legally Defining the Family in M. Henaghan and B. Atkin (eds), Family Law Policy in
New Zealand, 3rd edn (Wellington, New Zealand: LexisNexis, 2007) at 146.

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to the individual person. The reality of relationships has to be confronted and

accommodated, rather than compared with some pre-ordained ideal. The law
becomes uncertain, even chaotic, once first the centrality of marriage and
then the centrality of family are removed. The organizing value proposed to
preserve order is friendship.

A. Friendship
Full friendship in the Aristotelian sense is based on the inner desire of the good
for the friend as an end in itself. It does not create obligations of how the friend
should be nor does it need external restraint. It is not a relationship of power or
dependency. Such an idea seems quaint in our world where there is a price for
everything. But do we want to live in a world where everything is a commodity
for exchange? Our lives would be recorded on a balance sheet to ensure we are
square on the ledger in all our interactions. Economics theory explains life in
this way.66 Surely our lives and relationships would be impoverished if pure
friendship was subject to claims and counter claims when it ends.
Friendships end just like marriages, civil unions and de facto relationships,
whether by betrayal, failure or mutual decision. The proposal is that, when
friendship ends, justice requires the restoration of benefits conferred between
the friends, where those benefits can be characterised as an earned share in
assets treated in common by the friends.67 An earned share does not include
self imposed disadvantages which a friend was prepared to undergo for the
sake of the friendship and this negates their character as voluntary sacrifice.68
It means material contributions such as putting money or property into a
common pool. Conceptually such a distinction is manageable. Putting money
or property into a joint enterprise does not in itself require a relationship of
friendship. It is the investment of money or property that is the key to a claim
for restoration of benefit rather than the friendship. However, the distinction
does assume that the investment of money or property is different from the
investment of time, support and advice, and the investment of time, support
and advice does not require a relationship of friendship either. It is implied that
those investments are part of what friendship is because of the intent with
which they are given at the time. But the same could be said of money or
property in the context of friendship. Once we crack the code of friendship,
distinctions between material and non-material contributions to capital
accumulation may be unsustainable. This mirrors the early development of
66
The application of rational choice economic theory to social interactions is called exchange theory. See
J. Scott, Rational Choice Theory in G. Browning, A. Halcli and F. Webster (eds) Understanding Contemporary
Society: Theories of The Present (California: Sage Publications, 2000) at 126138; G. S. Becker, Treatise on the
Family (Cambridge: Harvard University Press, 1981).
67
Above n 6 at 48.
68
Ibid.

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the constructive trust solution to non-married relationships whereby initially

only material contributions were recognized, but, over time, non-material
contributions came to be recognized too.69 In order not to commodify
friendship anything (whether money, effort or advice) given in the spirit of
friendship should be seen as a voluntary sacrifice.

B. Friendship Plus
Friendship plus is used in the book as the point at which claims for equal
shares of property and money and compensation for losses arises. A life plan
and common household are essential ingredients.70 The crucial element is not
merely support for one another, but the use of material resources (effort,
money). New Zealand is cited71 as having this element in the definition of
de facto relationships in section 2D of the Property Relationships Act 1976,
which refers to the criteria of the degree of mutual commitment to a shared
life. A common household makes this assessment easier. The difficulty is
determining when the degree of mutual commitment to a shared life becomes
friendship plus.
Two people in an intimate relationship for twenty years, but residing
in separate households, faced the New Zealand Family Court in C v S.72
Mr S was married throughout the time of the intimate relationship with
Ms C and his wife was aware of the intimate relationship. The evidence showed
that for a long time each party knew intimately the others dreams and
aspirations and they shared a deep love of the other, commonality in sporting
events, art, literature and love generally,73 and that Mr S had put himself
entirely into her life.74 The legal definition of a de facto relationship in
New Zealand is living together as a couple.75 Judge Emma Smith conceded
that in some circumstances emotional and mutual commitment, combined
with public aspects of a relationship, may amount to a commitment to a shared
life and thereby living together as a couple even where there are separate
residences and financial independence. But, on the facts of the case, it was
ruled that there is a qualitative difference between being a couple and living
together as a couple . . . [T]heir relationship, once beautiful, poetic, intense
and passionate, fulfilling intellectually and emotionally to them for so long,
nevertheless had never transformed into a de facto one . . .76 The couple were
69
N. S. Peart, Comparative View of Property Rights in De Facto Relationships: Are we all Driving in the
Same Direction (1989) Otago Law Review 7(1) at 100140.
70
Above n 6 at 49.
71
Ibid at 50.
72
Family Court, Dunedin, FAM-2005-012-157, 28 September, 2006.
73
Ibid at [147].
74
Ibid at [148].
75
Section 2D of the Property (Relationships) Act 1976 (NZ).
76
Above n 72 at [159].

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classified as long term lovers who carried on the affair for two decades. The
result was that Ms C was not able to make a claim under the Property
(Relationships) Act 1976 to half of Mr Ss property acquired during their
relationship, nor compensation for any significant disparity in earnings and
living standards because of the relationship.77
The elements of friendship plus of a life plan and common household
provide a clearer basis for personal choice in relationships than the current
interpretation of the New Zealand provision on living together.78 It must be
difficult for Ms C to understand that, with different extraneous background
circumstances (such as Mr S not being married), her choice to have a mutual
commitment with Mr S could count as living together. Ms C is cited in the
judgment as describing herself as the other woman.79 If Mr S had not been
married then, even without moving in together, it is most likely the Judge
would have classified their life as living together. Mr S had his cake and ate it
too. It was the case of a life plan that was never fully carried out. Mr S would
have felt equally aggrieved if his choice not to move in together was counted
as if he had. Given that the New Zealand legislation80 does recognize
contemporaneous relationships of either marriage and de facto or de facto and
de facto, expecting literal living together will be rarely possible unless the
person is spending a week about living with each partner, or they are able to
clone themselves.
Once a relationship has crossed the threshold of a life plan (common
household), entitlement to what Baroness Hale has called compensation for
relationship-generated disadvantage arises.81 The important distinction
between compensation for the opportunity costs one party incurred by
the way the parties conducted their relationshipwhich would include, for
example, the forgoing of career opportunitiesand compensation for the
disparity which occurs in break-downs is made in the book.82 The
New Zealand courts have endeavoured to calculate costs for the forgoing
of career opportunities, but have been very conservative.83 Moreover, the

77
Ms C could make an equitable claim for the acquisition of property by Mr S provided she could show there
was a reasonable expectation to the property and she had made contributions to it (whether of a material or nonmaterial nature). See Lankow v Rose [1995] 1 NZFLR 1, where, after a 10-year relationship, 25% of the other
partners net worth was awarded.
78
See Ruth Deech for the importance of preserving choice of the partners in relationships: R. L. Deech,
The Case against Legal Recognition of Cohabitation (1980) 29 International and Comparative Law Quarterly 2/3,
480497.
79
Above n 72 at [150].
80
Sections 52A and 52B of the Property (Relationships) Act 1976 (NZ). See M. Henaghan, Multiple
Relationships on Death in N. Peart, M. Briggs and M. Henaghan (eds), Relationship Property on Death
(Wellington, New Zealand: Thomson/Brookers, 2004) at 347388.
81
Miller v Miller; McFarlane v McFarlane [2006] 1 FLR 1186.
82
Above n 6 at 52.
83
Awards have been on average in the $40,000$50,000 region, which questions the cost effectiveness of them
given the legal fees necessary to generate them.

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formulae used have been complex and speculative and do not give any
confidence that they are accurate.84
Compensation should be given for the exposure to the consequences of the
economic disadvantages which the claimant has incurred as a result of the
failure of the relationship.85 The goal is to reduce the economic gap between
the parties that exists at separation because, for example, one of the parties
has stayed at home to look after the children and freed the other party to earn
money. The English Courts in Miller v Miller and McFarlane v McFarlane86
have done it through generous maintenance awards which are specifically
designed to compensate for the gap. An economic disparity compensation
awardwhich provides lump-sum compensation where one partners postrelationship economic position is significantly worse than the othersis the
New Zealand approach. This is allowed where there is a significant disparity
in income and living standards caused by the division of functions in the
relationship.87 The award can only be made out of relationship property,
so it depends on how much relationship property there is. There may be a
significant economic disparity between the couple but very little property from
which to award compensation. Moreover, the New Zealand Court of Appeal
has stated that it is a matter of impression88 and that arithmetical equality89
is not necessary in terms of how much should be awarded under the section.
The highest award made by the New Zealand courts has been $138,000.90
An alternative approach is to do it on a rule-of-thumb percentage basis. For
example, primary care of a child leads to a 10% greater share of property;
providing the primary domestic work, another 5% extra of property. A person
who stayed at home and looked after a child and provided domestic services
would receive 65% of the property acquired during the relationship as
compensation.91
John Eekelaar proposes a more refined test of reasonableness, having regard
to the duration of the relationship and the opportunities to reduce loss.92
Compensation would be over time. This approach enables judges to fine tune
compensation on a case-by-case basis. It has the one disadvantage of requiring

84
See J. Miles, Dealing with Economic Disparity: An Analysis of Section 15 Property (Relationships) Act
1976 [2003] New Zealand Law Review 531568 for a superb analysis of the problems of calculating loss of
opportunity. See also B. Atkin, Family Property in M. Henaghan and B. Atkin (eds) above n 28 at 216220. B.
Atkin comments (at 220): There has been a flood of economic disparity claims and they have left the Court at
sea.
85
Above n 6 at 52.
86
[2006] 1 FLR 1186.
87
Section 15 of the Property (Relationships) Act 1976 (NZ).
88
M v B [2006] NZFLR 641 at [147], per Robertson J.
89
Ibid at [266], per Hammond J.
90
P v P [2005] NZFLR 689; (2005) 24 FRNZ 407. The claim was for $600,000 of economic disparity.
91
This approach has been adopted in the Australian case of Mitchell v Mitchell (1995) FLC 92/601, and in
New Zealand by Principal Family Court Judge Boshier in Fischbach v Bonnar [2002] NZFLR 705.
92
Above n 6 at 52.

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ongoing financial interdependence between the parties, with its likely frictions.
Conversely, a rule-of-thumb percentage approach provides predictability and
closure at the expense of the nuances of each case.

C. Truth
Family law has a long history of using legal truth to mask physical truth.93
The rule that illegitimate children could not inherit is a classic examplethe
legal family, constituted by marriage, not the biological family determined the
flow of wealth.94
Hiding the truth is another way of exercising power. Lack of truth has played
its most significant roles in adoption and the use of assisted reproduction
technology. The genetic identity of adopted children was sacrificed in the belief
that being part of a married family would be of more benefit. The interests of
the least powerful, those not responsible for the circumstances,95 were
sacrificed. When assisted reproduction first became available in New Zealand
in the 1980s, the concerns were about the legal liability of the sperm donors
and not the interests of the children born to know their genetic identity.96 It has
taken until 2004 for New Zealand to pass legislation which has recognized the
right of children conceived this way to have access to information about their
genetic origin.97 John Eekelaar argues rightly that the interests that children
have in knowing the physical truth are always stronger than those of the adults
because for children they give rise to claims to justice, whereas for adults they
form the basis for attempts at exercising power.98
Much of the rationale for hiding physical truth by the use of legal truth has
been to avoid shame. Barbara Brookes, in a paper entitled Shame and its
Histories, concludes that an early twentieth century tight society dictated
conformity to codes of breadwinning and chastity and those who offended
suffered . . . In those communities shame difficult but necessary emotion as it
is provided the glue that bound together individual desires and familial
responsibilities.99 In an open society, I agree with the theory proposed in
Family Law and Personal Life that we are better to be bound together by the raw
truth of the circumstances of our lives so that we are free to confront the world
on our own terms, rather than terms decided for us by others.
93

Ibid at 55.
Ibid at 59.
Ibid at 76.
96
M. Henaghan, New Zealand: Regulating Human Reproduction in S. McLean (ed.), Law Reform and
Human Reproduction (Dartmouth: Aldershot, 1992) at 147171.
97
Human Assisted Reproductive Technology Act 2004 (NZ).
98
Above n 6 at 76.
99
Text of Inaugural Professorial Lecture, delivered at the University of Otago, August 16, 2007), available
from Barbara Brookes (barbara.brookes@otago.ac.nz).
94
95

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D. Respect
Respect is a pivotal100 value in family law. What must be respected is the
value of having space to develop ones personality and personal interactions
free from the external gaze101 so that love can flourish.
Fault systems, whereby dissolution of marriage required a spouse to establish
an offence such as adultery, allowed detailed analysis of sexual intercourse
penetration without ejaculation102 or coitus interruptus103 consummates a
marriage, ejaculation without penetration does not.104 At the same time there
was no interest in the physical or emotional integrity of the partners. Feminist
scholarship105 has done a great deal to reveal the consequences of ignoring the
devastating harm physical and emotional violation in a relationship can do.
Yet there is still reluctance, both via legislation and decision-making, to fully
recognize this harm. In New Zealand we introduced the Domestic Violence Act
in 1995, which recognized that all forms of violence (including psychological)
were wrong and that there should be speedy and effective redress whenever
violence was brought to the courts. Since the passing of that legislation,
212 women have died in New Zealand at the hands of their partners.106
An evaluation of the operation of the legislation shows a reluctance to enforce
orders in urgent cases and at times a reluctance to recognize the perception of the
applicant (which is required by the legislation).107 The privileged sphere is not
about a right to privacy; it is about being unregulated until harm to others is done.
Parents are given a privileged sphere to bring up their children according
to the parents own beliefs and practices. However, the privileged sphere of
the parent/child relationship should always be open to observation.108 The
New Zealand public were outraged when a Family Court Judge made an
order109 for a child to be placed in the care of Social Welfare so that
chemotherapy, which had started, could be completed. The parents were
articulate and sought public support to treat their 3-year-old son by alternative
methods such as magnetic treatment. The order was discharged to leave the
matter to parental choice because of the public pressure. Sadly the little boy
died, with no legal repercussions for the parents. When the Laufau parents
100

Above n 6 at 77.
Ibid at 83.
R v R [1952] 1 All ER 1194.
103
Cackett v Cackett [1950] 1 All ER 677.
104
Clarke v Clarke [1943] 2 All ER 540; above n 6 at 82.
105
See, for instance, above n 35; K. Yllo and M. Bogard (eds) Feminist Perspectives on Wife Abuse (London:
Sage, 1990); A. Diduck and F. Kaganas, Family Law, Gender and the State (Oregon: Hart Publishing, 2006)
at 372416. See also above n 12.
106
N. Robertson, R. Busch, R. DSouza, F. Lam Sheung, R. Anand, R. Balzer, A. Simpson and D. Paina,
Living at the Cutting Edge: Womens Experiences of Protection Orders, vol 1 (Hamilton, New Zealand: University of
Waikato, 2007) at I, available at http://research.waikato.ac.nz/CuttingEdge (last accessed on 21 September 2007).
107
Ibid.
108
Above n 6 at 84.
109
Healthcare Otago Ltd v Williams-Holloway [1999] NZFLR 804.
101
102

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(from the Pacific Islands)110 refused chemotherapy treatment for their 13-yearold son, preferring to rely on faith and traditional healing practice, no one
followed up to see that the child would be safe. The parents then faced criminal
prosecution when the boy died and they were found guilty of failing to provide
the necessaries of life. Under Eekelaars theory of the privileged sphere, both
sets of parents should have been open to observation for the treatment of their
child and should have received equal treatment in terms of the criminal law
consequences.
Those with infertility who require the use of assisted reproductive methods
have a smaller privileged sphere than those who procreate in the common
way. That sphere is constantly under threat from legislation, authorities and
ethics committees (whom they have to appease in order to proceed). Sheila
McLeans book on Modern Dilemmas: Choosing Children111 exposes that the
harms which are used to limit such couples liberty, when subject to evidence
based scrutiny, do not stand upthere is simply no evidence that assisted
reproduction procedures are being used other than to assist the parents to
conceive a healthy child. In the spirit of the open society the privileged sphere
must allow the next generation to develop new ideas with which to face the
new realities which confront them.112

E. Responsibility
The main way responsibility has maintained order in family law has been to
blame and shame for matrimonial offences.113 The theory of Family Law and
Personal Life is that personal law should emphasize prospective responsibility.
These are responsibilities which endure both during and after the relationship
ends, such as a commitment to make a parenting relationship work and a
commitment to care for children. Family law has a poor track record of making
these responsibilities work. For example, the strategy of parent education
programmes seemed to fail114 and was seen as a form of government
preaching.
50/50 sharing of the child works only if it is voluntary.115 A legal requirement
of equal time with each child would not benefit all children.116 As John
Eekelaar rightly concludes, it may be better to accept that parental separation
requires a complete renegotiation of the family dynamics, focused on the
110

R v Laufau and Laufau, High Court, Auckland T000759, 23 August, 2 October, 2000.
Edinburgh: Capercaillie Books Ltd, 2006.
Above n 6 at 102.
113
Ibid at 105.
114
Ibid at 121.
115
H. Rhoades and S. Boyd, Reforming Custody Laws: A Comparative Study (2004) 18 International Journal
of Law, Policy and the Family 119-146. See also M. Henaghan, Legally Rearranging Families in M. Henaghan
and B. Atkin (eds), above n 28, 269360 at 326333.
116
S. Gilmore, Contact/Shared Residence and Child Well-being: Research Evidence and
its Implications for Legal Decision-Making (2006) 20 International Journal of Law, Policy and the Family,
344365.
111
112

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circumstances of each family, rather than to aim at an idealised state of affairs

which may not suit the individuals or their particular circumstances.117
Lawyers negotiating with their clients a position which meets their clients
interests, but which will be acceptable to the other side, works best.118
A fuller concept of responsibility is proposed by the theory in the book,
whereby people appreciate the effects of their action or inactions on other
people by modifying their behaviour accordingly even if this means modifying
claims to ones entitlements.119 Such behaviour should be encouraged by the
legal system rather than enforced by it. Once it becomes enforced it becomes a
legal duty and the sense of responsibility is lost.120
Just as rights are necessary to disperse power, responsibility can be
encouraged as a means of giving up entitlements or giving up power in the
situation for the good of anotherfor example by encouraging settlement out
of court (if not unduly coercive) or encouraging better parenting practice.
Economists would want economic incentives for such outcomes, but maybe the
best incentive of all is that of being a good citizen who puts the interests of
others before their own. This is a world in which we would all like to live.

4. Overall Evaluation of the Theory

Family Law and Personal Life is not just a book about personal law but is also a
comment on legal theory.121 The theory in Family Law and Personal Life, whilst
it has grown out of work and insights from family law, is not limited to that
field. It is based on the view that, at their core, humans want to develop their
human potential for love and intimacy and that they are capable of defining for
themselves how best to do that. What gets in the way of that potential is the
exercise of power, whether it be one individual on another, the state on an
individual or group of individuals, or one generation limiting the potential of
the next. The function of law is to constrain the wrongful exercise of power and
to leave room for individuals to make free choices in the privileged spheres of
their intimate lives. Rights which allow freedom of choice (short of causing
harm to others), compatibility of factual and legal truth, respect for the
privileged sphere and allowing room for and encouraging full responsibility
117
Ibid at 126127. See also B. Smyth, Parent-Child Contact in Australia: Exploring Five Different PostSeparation Patterns of Parenting (2005) 19 International Journal of Law, Policy and the Family, 122.
See M. Henaghan, Custody Decisions Discretion Gone Too Far [2000] Otago Law Review 731741 for a
rule-based solution.
118
Under section 8 of the Family Proceedings Act 1980 (NZ), lawyers in New Zealand are under a legal duty
to negotiate a conciliatory position whenever possible. Section 17 of the Care of Children Act 2004 (NZ) requires
parents to consult over children.
119
Above n 6 at 128.
120
Ibid at 131.
121
Ibid at ix.

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(where people appreciate the effects of their actions on others), provide the
basis for an open and just society.
Patricia Smith, in her book The Nature and Process of Law, says that a
powerful theory should have the ability to organise and explain its subject
matter in a way that offers new insights and understanding.122 The key new
insights in Family Law and Personal Life are the emphasis on how one
generation can bind another through the rules of family law; how the behaviour
of governments tends to be reflected in the laws they make; and, most
important of all, that the law should not be solely about controlling human
behaviour, but should be about leaving space for people to find their own ways
of leading their intimate lives and achieving love and fulfilment. The theory is
powerful because it means that the imposition of general rules on intimate life
should not go unchallenged. The theory demands constant vigilance for the
values of truth, respect and responsibility.
The books framework clarified for me where the intimate lives of some fall
through the cracks. Too many children are born into conditions where the adult
world has not provided for their optimal upbringing. As a society we have
removed the shame of illegitimacy for newborn children but we have not
removed the massive gap in socio-economic conditions which hinder the full
flourishing of too many children. The competitive and market driven nature of
our Western society has shrunk the opportunities for the privileged sphere and
the putting of others before oneself to flourish. As people become more and
more units of production, those who are not sufficiently skilled or qualified
are spat out of the societal machine. Not surprisingly, frustration and anger can
turn to violence. A revision of child maltreatment in New Zealand in 2006123
showed that there were increased risks of violence with death to children and
partners where there was poverty, low education, regular unemployment,
a number of different caregivers, early use of alcohol and drugs, abuse while
a child and poor mental health. Responsibility for others must begin with
responsibility for the society we have created.
John Rawls argues124 that, in a democratic society, if we want to achieve
change we should give public reasonsreasons that are accessible to
everyone, not just to people who have the same religious or ethnic beliefs as
we have, or the same theory of what a good society is. We should construct an
accessible structure for analysis and critique. This book does that. It is essential
reading for family lawyers, academics, judges and scholars of legal theory, and
122
P. Smith (ed.), The Nature and Process of Law: An Introduction to Legal Philosophy (New York: Oxford
University Press, 1993) at 273.
123
Ministry of Social Development, Child Death from Maltreatment: A Review of Incidence in New Zealand
(Press Release, 27 July, 2006), available at http://www.msd.govt.nz/media-information/press-releases/2006/
pr-2006-07-27-2.html (last accessed 21 September, 2007). See also above n 33.
124
J. Rawls, The Idea of Public Reason Revisited in J. Rawls and S. Freeman (eds), Collected Papers
(Cambridge: Harvard University Press, 1999) at 573615.

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for citizens who want to think about the relationship between their intimate life
and the law. Like the best, classic, path-finding works, this book, whilst
covering wide territory, is mercifully short (173 pages of text) and to the point
throughout. Oxford University Press have done a beautiful job of producing
the book. The front cover is a moving modern art depiction of intimate life
and sets the right tone. The book is hand-held size, which makes it very
comfortable to read. It is footnoted throughout, with easy to read references,
and has an excellent bibliography and a clearly laid out and accessible index.
It is a book to which you come back, in order to re-read and further digest the
rich array of examples. It is a book which will be a friend to anyone who is
interested in the nature of personal life.