Family Justice 3.6: Rethinking Family to Reduce Conflict

All law, with the exception of animal cruelty laws, concerns the interaction of human social groups ranging in scale from the individual to the state, either for the purpose of regulating those interactions or providing remedies when things go awry. It’s the humanness of these interactions which makes the law as complex as it is, family law especially so; we are messy, irrational creatures with priorities, goals and emotions that are highly variable and difficult to predict.

It seems to me that the contortions into which family law twists itself largely result from efforts to address, accommodate and anticipate the vast array of psychosocial factors involved in family values and family breakdown. I wonder about the extent to which fault for these factors can be laid at the doorstep of certain social norms, especially the presumption that family relationships are enduring, fidelitous and either monogamous (a married relationship between two persons) or diamorous (an unmarried relationship between two persons). Specifically, I wonder about the extent to which the inability of existing processes to manage the process of family breakdown, and the difficulty of planning alternative processes, is attributable to the sequelae of conventional attitudes toward “family.” I further wonder whether changing those norms might resolve some of the more difficult aspects of adult conflict and promote a more child-centred approach to the resolution of their parents’ disputes.

In my previous posts on family justice, I have proposed changes to the justice system intended to better accommodate family law disputes; in this note I propose changing the family to better accommodate the justice system, or, to put it another way, to reshape conventional attitudes toward family to decrease the frequency and intensity of family law disputes. Implementing the ideas I discuss will of course require a significant cultural shift in some our most deeply embedded social values. Although I recognize that no government is ever going to attempt the change I propose, I should point out that our society has recently and successfully processed some fairly prodigious culture shifts. Consider, for example, the progress made in attitudes toward women’s economic and political equality in the last century, the change in the acceptability of smoking in the last twenty years or the change in attitudes toward same-sex marriage in the last ten years. Social change on a massive scale is possible.

Emotional Responses to Family Breakdown

Those practicing family law, or really anyone who’s experienced the loss of a serious relationship, can readily identify the problematic emotional responses to family breakdown. Common responses include anxiety, loneliness, sadness, anger and the emotional subsets described in the theories of grief variously popularized by John Bowlby, Elisabeth Kübler-Ross and Robert Emery. While these responses to separation are “normal,” so to speak, they can become problematic for those who get stuck in the grieving process. Other, less common emotional responses include:

• guilt and shame (about the end of the relationship or the performance of functions during the relationship);
• jealousy and possessiveness (about a former spouse’s new relationship, contentment with life or ease of transition from the old relationship);
• fear (about one’s future or the unknown steps a former spouse might take);
• aggression, hatred, rage and vengefulness (toward a former spouse or those associated with a spouse); and,
• disgust and disregard (toward a former spouse and the career, tastes, habits and preferences of a spouse).

These responses have the potential of becoming toxic for everyone involved in the breakdown of a relationship, particularly if the breakdown leads to litigation; they will most certainly be problematic if they occur in circumstances of:

• controlling, coercive relationship dynamics;
• efforts to isolate a spouse from friends and family;
• emotional, mental or economic abuse;
• substance abuse or mental illness; and,
• unusual economic, caregiving or social stress.

I suspect that there are a number of important interrelationships between toxic reactions to separation and the circumstances that aggravate those reactions, on the one hand, and, on the other, social norms which stipulate that committed relationships be monogamous or diamorous in nature, heteronormative stereotypes and certain social baggage relating to gender roles and inequality between women and men. There are, for example, specific cultural values that support imbalances of power in opposite-sex relationships (parenting norms, women’s economic inequality) and exacerbate fears of external interference with the family unit (inviolability of the family unit, hypersexualization of women), and thus promote feelings of jealousy, possessiveness and a need for dominance which in turn support coercive and controlling behaviour.

But what if we thought of “family” differently? What if, instead of the Norman Rockwell portrait of monogamous husband and wife, or their diamorous unmarried counterparts, “family” was a more flexible arrangement, in which spouses entered and departed the family unit as their inclinations and predilections took them, and “family” wasn’t necessarily monogamous or diamorous in nature, but could just as easily be polygamous or polyamorous? Is it possible that normalizing such a fluid conception of family might help empower women to insist on more equal roles in their relationships, curb feelings of guilt, shame, jealousy and possessiveness in general, and decrease the likelihood of coercive, controlling relationships and feelings of fear, aggression, vengefulness and disgust upon separation? If so, the dynamics presently associated with family breakdown could be dramatically improved and conflict significantly reduced.

An Alternative Conceptualization of Family

The traditional view of marriage as an exclusive, enduring relationship between two persons is a three-thousand-year old legacy gifted to Western society by most but not all major religions and the patriarchal social structures they support. Although counterexamples of polygamous and polyamorous cultures and religions abound, the more successful of which are typically found in matriarchal cultures, the standard of the monogamous relationship has stood the test of time and eventually influenced our ideas about the nature of unmarried relationships.

Thinking outside a box this deeply entrenched is somewhat of a challenge. Inspiration can be found neither from the fundamentalist Mormons positively depicted on TLC (Sister Wives) nor those negatively depicted on CBC (the residents of Bountiful, British Columbia), but from the consenting adults involved in polyamorous relationships today. Relationships like these aren’t entered into by happenstance. They require frank conversations negotiating the boundaries of the relationship and each partner’s needs, desires and limitations, none of which are commonplace in monogamous or diamorous relationships, and practical issues about sex, expectations of fidelity, children, parenting obligations and financial responsibilities must also be addressed.

In short, modern polyamorous relationships are intentional, consensual, planned and highly individualized. They are entered into with eyes wide open. Based on the personal experience of certain friends and clients, while fidelity is often expected, polyamorous relationships are entered into with none of the presumptions of permanence that are the particular hallmark of monogamous relationships; new partners may enter the family and old partners may leave.

It seems to me that the emotional maturity, forethought and egalitarian approach demanded in the formation of polyamorous relationships would be equally valuable to those contemplating a new monogamous or diamorous relationship, and might go an awfully long way to addressing the toxic emotional responses to separation I’ve described above. I can imagine, with an abundant surplus of hope and optimism, a culture in which:

• families are formed by two or more adults who voluntarily agree to cohabit in some manner after addressing themselves to the present and future makeup of the family, plans for children, plans for the sharing of household expenses and responsibilities within the household;
• families are assumed to be indeterminate and to evolve over time, as the membership of the cohabiting family changes;
• families include past members of cohabiting families, particularly when those families include children;
• the adults in the cohabiting family are assumed to be engaged in an ongoing process of open communication, each checking in with the others as to their emotional, social and financial wellbeing;
• each adult in a cohabiting family is equally empowered to make decisions, including the decision to remain in the cohabiting family and decisions affecting the family as a whole;
• each adult in a family is required to contribute to the needs and expenses of the family but is assumed to maintain financial independence;
• children are not viewed as personal property but a communal good; and,
• each adult in a family is required to contribute to parenting the children, regardless of the presence or absence of a genetic connection to a child.

A cultural attitude such as this strikes me as less likely to accommodate jealousy or possessive attitudes, power imbalances, controlling and coercive dynamics, or emotional, mental or economic abuse, in all families, whether diamorous or polyamorous. It would be more likely to promote a holistic view of parenting, and the other responsibilities involved in family relationships, while preserving the independence, self-determination and self-interest of the individual adults. It would be more likely to encourage child-centred thinking, ensure that an adult’s relationship with and obligations to a child did not end upon leaving the cohabiting family, and give children a critical continuity of care, regardless of how their family has changed. It would be more likely to promote positive communication skills and minimize the negative fallout when one or more adults leave the cohabiting family. It would be more likely to improve adults’ capacity for empathy, to improve conflict resolution skills and to reduce family members’ need to resort to courts to resolve family disputes.

(As an aside, it occurs to me that children might benefit enormously from being raised in the communal environment of a polygamous or polyamorous relationship. Imagine the benefits to a child of having a surplus of caregivers, being raised with an abundance of full- and half-siblings and growing up with adults modeling positive communication and conflict resolution skills.)

I suspect that whatever family law is needed to address conflicts arising out of the full or partial breakdown of family relationships such as these would look radically different than the court-based adversarial system we presently use. The social norms necessary to support these families would view separation as a transition rather than a sundering, and would understand that family obligations and family relationships do not end with the cessation of cohabitation. Arguments requiring legal intervention, which I expect would be significantly diminished from current volumes, may very well be confined to enforcing the caregiving and support responsibilities of former members of cohabiting families and sorting out property interests when the family members cannot resolve those issues themselves.

Concluding Thoughts

In fairness, the problematic treatment of family breakdown by the current justice system does not wholly derive from expectations of monogamy and diamory, although much of the emotional responses that make family law so difficult can be laid at the feet of these social institutions. Other factors also contribute, such as: human nature; norms about gender, parenting roles, the distribution of labour in the home and the privileged insularity of the family unit; the impact of these norms on policy- and decision-makers; the stubborn persistence of women’s inequality; and, the lingering tendency to treat women and children as property. But if we are unable to redesign family law to improve the treatment of separating families, perhaps it’s the families that must change and not the legal system?

In this series of notes on family justice, I have explored a variety of alternatives, from shifting responsibility in family law disputes out of the courts and onto the families themselves, to a partially computerized system that would reserve court as a last resort, to an administrative model that would remove family law from the court system altogether. As I approach the point where I am exhausting the alternatives I can conjure up, I realize that the root causes of the justice system’s inadequacies might just lie in the dysfunctional way that we as a society handle family breakdown; exploring alternatives to how we restructure families is the point of this post, whether we’re prepared to contemplate social change of this magnitude or not. Regardless of whether my proposal finds fertile soil, it seems to me that ruminating on our emotional responses to family breakdown might offer some valuable insights toward the reform of our present management of family law disputes.

John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary.