The Triple System of Family Law

Abstract

The Article analyzes the role of class in family structure and family law. Building on Jacobus ten Broek’s classic articulation of a “dual system” of family law, we explore the nascent development of a parallel third system of family law. In the early sixties, ten Broek argued that family law had two parts that differ in substance, purpose, and procedure. One system focused on private arrangements and supported the families of those who were economically self-sufficient. Ten Broek maintained, however, that a parallel second system existed, one imposed on those who sought public assistance. In this second system: i) the state, not individual family members, controls the litigation and the settlements; ii) the law imposed may not necessarily reflect the community norms or the parties’ understanding of the terms of their own relationships; and iii) the purpose of the litigation is to protect the public fisc and reaffirm mainstream norms, whether or not the results are in the interests of the parties to the litigation.

Since then, a middle group of families has emerged. It is more likely than the marginalized group to get married but also more likely than the elite group to divorce, remarry, and cohabit; their nonmarital birth rate, while increasing, remains lower than that of the marginalized group. Within this group, the heretofore largely invisible fight within family law is over how to set the terms for families where women are increasingly the more reliable breadwinners and homemakers, without the ability to lock in understandings that would reflect their greater assumption of family responsibilities. Development of the laws in this third system accordingly requires recognition that the critical choice is whether to accept women’s greater authority within the family or accelerate the move away from committed relationships altogether.

Keywords: family law, poverty law, law and inequality, feminism