Neoliberalism, family law, and the devaluation of care
| Published date | 01 September 2021 |
| Author | ANNA HEENAN |
| Date | 01 September 2021 |
| DOI | http://doi.org/10.1111/jols.12308 |
DOI: ./j ols.
ARTICLE
Neoliberalism, family law, and the devaluation
of care
ANNA HEENAN
School of Law and Politics, Cardiff
University, Law Building, Museum
Avenue, Cardiff, CF AX, Wales
Correspondingauthor
AnnaHeenan, School of Law and Politics,
CardiffUniversity, Law Building, Museum
Avenue,Cardiff, CF AX, Wales
Email:HeenanA@cardiff.ac.uk
Fundinginformation
Economicand Social Research Council,
Grant/AwardNumber:
Abstract
There is a conflict at the heart of family law between
neoliberal ideas of autonomy, which increasingly influ-
ence law and policy, and the lived realities of family
law’s subjects. Neoliberalnorms, which assume individ-
ual responsibility, financial independence, and freedom
of choice, do not reflect the nature of decision making in
intact families or the consequences of those decisions on
separation; separation raises multiple intersecting legal
issues, including financial and child arrangements, pro-
viding an important lens for family law more widely.
Drawing on the findings of original empirical research
with separated parents, this article explores three key
assumptions of individuals in the neoliberal paradigm:
that they have equal bargaining power,behave econom-
ically rationally,and have freedom of choice. Not only do
all three assumptions fail to capture the realities of sepa-
rating parents’ lives, but they actively cause harm in the
family law context by devaluing care.
1 INTRODUCTION
There is a conflict at the heart of family law between increasingly influential neoliberal ideas of
autonomyand lived realities. The ways in which neoliberalism has shaped family law and its
A. Barlow et al., Mapping Paths to Family Justice (); A. Diduck, ‘Autonomy and Family Justice’ () Child
and Family Law Q. ; F. Kaganas, ‘Justifying the LASPO Act: Authenticity, Necessity, Suitability, Responsibility and
Autonomy’ ( ) J.of Social Welfare and FamilyLaw ; J. Mant, ‘Neoliberalism, Family Law and the Cost of Access
to Justice’ () J.of Social Welfare and Family Law .
This is an open access article under the terms of the Creative Commons AttributionLicense, which permits use, distribution and reproduc-
tion in any medium, provided the original work is properly cited.
© The Author.Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU).
386 wileyonlinelibrary.com/journal/jols J.Law Soc. ;:–.
387
conception of the legal subject is explored in the next section. For present purposes, it suffices
to note that neoliberal-influenced policies seek to organize political, economic, and social life
by reference to market principlesand that policies influenced by neoliberalism view citizens
through a lens of individual responsibility and autonomy.
Despite their increasing influence, neoliberal norms have been criticized for failing to cap-
ture the realities of family life. Intact families are encouraged to be ‘both self-governing and
self-sufficient, rather than relying on state support’, and policies are cast in formally equal
(and gender-neutral) terms.This interdependence encouraged in intact families conflicts with
approaches on separation,when partners are encouraged to become financially independent
of one another. Former cohabitants cannot claim maintenance for their own benefit, and while
former spouses can, such claims are rare in practice.
Neoliberal norms also ignore ‘the inevitable inequalities and hierarchies of family life that per-
meate the relationship and the decision-making process’.Suchinequalities include differences in
caring responsibilities,which are often linked to economic disparities, although such disparities
may exist independently,and themselves create power imbalances.A further cause of inequality
is domestic abuse. These factors affect family members’ abilities to bargain with one another
and their relative positions on separation.
Relatedly, neoliberalnorms ignore the impact of gender norms. Despite commonly held views
that women have achieved equality, thisis not the case. Society expects mothers to be primary
carers and these norms influence the division of paid work and caring responsibilities in intact
W.Brown, ‘American Nightmare: Neoliberalism, Neoconservatism, and De-Democratization’ () Political Theory
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Kaganas, op. cit., n. ; S. Maclean, ‘Individual Autonomy or Social Engagement? Adult Learners in Neoliberal Times’
() Adult Education Q..
L. Buckley,‘Relational Theory and Choice Rhetoric in the Supreme Court of Canada’ () Cdn. J. of Family Law ,
at .
A. Diduck, ‘Autonomyand Vulnerability in Family Law: The Missing Link’ in Vulnerability,Care and Family Law,edsJ.
Wallbank and J.Herring () .
E. Hitchings and J. Miles, Financial Remedies on Divorce: The Need for Evidence-Based Reform (), at <https://www.
nuffieldfoundation.org/wp-content/uploads///briefingpaperJunFINAL.pdf>.
S. Thompson, ‘Feminist Relational Contract Theory: A New Model for FamilyProperty Agreements’ () J. of Law
and Society , at .
M. Fineman, The Autonomy Myth (); Diduck, op. cit., n. .
See for example S. Thompson, Prenuptial Agreements and the Presumption of Free Choice: Issues of Power in Theory and
Practice ().
R. Hunter, ‘Doing Violence to FamilyLaw’ () J. of Social Welfare and Family Law .
Barlow et al., op. cit., n. ; Thompson, op. cit., n. .
A YouGovsurvey found that per cent of UK respondents ( per cent of men and per cent of women) believed
that men and women areequal: YouGov,Global Report: Attitudes to Gender () , at <https://ddsfbs.cloudfront.
net/cumulus_uploads/document/qhqqwn/YouGov_Gender_Results_Share_Website.pdf>.
J. Conaghan, ‘Reassessing the FeministTheoretical Project in Law’ () J. of Law and Society , at .
British Social Attitudes, Wome n and Wo rk (), at <https://bsa.natcen.ac.uk/media//_bsa_women-and-
work.pdf>.
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