Is 'Living Together, Loving Each Other' Enough for Law? Reflections on Some 'Brave New Families'

Abstract

Legal family ties in Western legal culture are based either on consanguinity (blood: parents and their children) or on will (not any will, but a specific legal one: marriage or adoption). Accordingly, the factors law takes into are marriage and kinship; the fullness of familial relationships happens in a marital family, where spouses are bound to each other by marriage. They are also bound to their biological children by the closer kinship relationship that exists (filiation). Recent family law developments are introducing a new factor in many countries founded on a simple fact: "living together and loving each other," Cohabitation (living together) and feelings (loving each other) seem to be the foundation of a renewed family law, and also of the so-called "new models of family," thus extending the legal notion of family. This paper deals with these ideas, and, therefore, with the foundations of family law. Before continuing, I would like to clarify two points: First, my analysis applies to family models as such, not to any specific situation. Analyzing a model involves taking into consideration its efficacy or functionality, from both a legal and a social point of view. For this purpose, some sociological data can be especially useful, since they highlight the structural and functional characteristics of every model as a model. Perhaps a simple example could help: Mercedes has more quality than Hyundai; this means that, as a rule, a Mercedes car is better than a Hyundai. But if one Mercedes car has a manufacturing defect affecting its performance, that Mercedes car can be considered worse than a Hyundai that works properly. It is, however, not correct to conclude from that specific case that Hyundai is better than Mercedes or that Hyundai is as good as Mercedes. I would like to emphasize this, because the argument consisting of using a particular case to contest a general approach is much used in public discussions on family and family law. Second, only the lack of historic perspective leads to referring to the new models as really "new." Regarding love, sexuality, and cohabitation, available combinations are limited: homosexuality and heterosexuality, one man with one woman, one man with one man, one woman with one woman, one man (or one woman) with several men (or several women), several men or women with several men or women, everyone with everyone (or anyone with anyone). The same thing happens with family organization: patriarchy, matriarchy, communes, extensive families, nuclear families, and so on. All those combinations have not only been imagined, but known and practiced historically.