 Hi, I'm Nicola Barker, a Professor at the University of Liverpool, and my research has been focused on feminist critiques of marriage. What I'm going to talk about today is one aspect of those critiques, that marriage is in some ways both under-inclusive and over-inclusive in the types of relationships that it recognises. In other words, as Jonathan Herring has argued, if the goals of family law are to support and promote intimate life, protect individuals from abuse within the family, and remedy advantages and disadvantages caused by a relationship, then it's not really the sexual aspects of a relationship that are necessarily key to these elements requiring state intervention. So perhaps we need to think differently about how we recognise relationships. And the purpose of this lecture is to question whether sexual relationships should continue to be privileged in law through marriage, or whether family law should move beyond conjugality to de-centre sexual relationships and recognise a wider range of different relationship types. Beyond conjugality was the title of a report from the Law Commission of Canada, which I'll talk about towards the end of the lecture. I'm going to examine the topic primarily through the lens of the case of burden against the UK, which was brought by two sisters who wanted access to one of the legal consequences of marriage, the spousal exemption from inheritance tax liability. But more broadly, the issue is whether law should move beyond what has been termed the sexual family. At the moment, much of family law centres around a presumed sexual relationship between adults, and that results in the couple getting a number of legal advantages that, for example, single parents wouldn't have access to. But should it? Would it be better to focus instead on caretaking relationships, whether that's between parent and child, or elderly sisters who live together as in the burden case, or just close friends who look after each other? Why privilege sexual relationships? There are some interesting suggestions about why and how we might move away from conjugality, and I'll talk about some of those and their potential pitfalls towards the end. So, we'll begin with the facts of the burden case. The burdens were elderly sisters who had lived together all their lives in a home that they had inherited from their parents. Their home had dramatically increased in value over their lifetime from £7,000 in 1965 to £550,000 at the time of the case. They also had other property and assets bringing their total combined worth to over £1 million. And like everyone with this amount of money and other assets, when one of the sisters died, the other would have to pay inheritance tax. The only exception to that is spouses. So, spouses are exempt from inheritance tax, and since the Civil Partnership Act extended all spousal rights and obligations to couples who register a civil partnership, they've also been exempt from inheritance tax. The burden sisters felt that because they perform many of the same functions as spouses, so they cohabit, they're interdependent, they look after each other, they share finances, etc., they should also be able to claim the spousal inheritance tax exemption. Their argument was essentially that we perform the same functions as spouses. The only exception, the only difference between us and spouses is that we don't have a sexual relationship. And the Civil Partnership Act doesn't require a sexual relationship. So one of the very few differences between civil partnerships and marriage is that there are no consummation or adultery provisions for civil partners. As a result, when civil partnerships were introduced in 2004, the burden sisters saw no relevant distinction between their situation and the situation of a lesbian couple who were civil partners. Yet they were excluded from the Civil Partnership Act because they were sisters. And I just want to add a little context here before I tell you about the outcome of this case because you may not be aware that when the Civil Partnership Act was being debated in Parliament, the exclusion of siblings and other family members became the main issue of contention between supporters and opponents of the provision. It was an interesting time because the new Labour Government wanted to introduce some marriage-like protections for same-sex couples, but without introducing same-sex marriage because the view was that this would attract too much opposition. There were people who were still adamantly opposed to same-sex relationships in general, but wanted to avoid being labelled as homophobic. And because Civil Partnership was presented as something that wasn't marriage, but simply a way of accessing important legal protections for long-term interdependent same-sex relationships, it was difficult for opponents to make the usual objection to same-sex marriage, which was that they simply wanted to protect the institution of marriage as a heterosexual institution. So instead, the technique of objection to the Civil Partnership Act was not one that said same-sex relationships should not be recognised, but instead it was presented as concern for those who remained excluded and this was framed as the poor deserving family members who'd provided long-term care and support to each other, but would be excluded from this provision, juxtaposed against a fleeting same-sex encounter that would now receive comprehensive legal recognition and with it the numerous benefits and advantages that come along with spousal status. But these concerns were, I would suggest, less than sincere, or at the very least the way that people went about trying to gain inclusion for these so-called deserving family members was ill-thought out. This was because the Civil Partnership Act replicates for the most part the institution of marriage. Civil partnerships are contracted and dissolved according to rules that largely mirror those of marriage and the structure of the institution is the same. So it's a relationship of two people intended to be for life and to the exclusion of all others, etc. If the relationship breaks down, you need to go through a divorce-like process which at the time involved demonstrating the irretrievable breakdown of the relationship. So when some members of Parliament put down amendments to the Civil Partnership Act that would extend it to siblings and other family members who cohabit, the very obvious first question is, what about families of more than two siblings who live together? How are they supposed to decide which two of the siblings should get the Civil Partnership and with it the legal protections and advantages? What about a situation of a daughter who lives with her elderly parents to provide them with care, but either her parents or her are already married? How would she access the protections of Civil Partnership? Does she not deserve them also? Why should she remain excluded when a similarly situated daughter-parent care relationship where both parties are unmarried could be recognised? What happens if two siblings, like the burden sisters, do get a civil partnership and then one of them meets the love of their life, their soulmate and decides they want to get married or civilly partnered to that person? How do they demonstrate the irretrievable breakdown of their relationship with their sibling in order to free themselves from another union? That might be easier once the new divorce reforms are implemented, but certainly in 2004 it would have been a tricky prospect. So the attempts to extend civil partnerships in the form that the provision took were clearly wrecking amendments. They were designed to derail the Civil Partnership Bill and to undermine the recognition of same-sex relationships. But this didn't prevent this discourse about the deserving family members and the supposedly undeserving same-sex sexual partners being repeated in the Conservative press and by anti-gay organisations such as the Christian Institute as shown in this advert, which was a full-page advert in the Times taken out during the parliamentary debates on the Civil Partnership Bill in 2004. So, as you can see, there's a very sad-looking woman saying, why should I have less home-sharing rights than a gay couple? The implication being, of course, I'm more deserving of rights than gay couples. The Civil Partnership Act should, the advert says, be fairer to ordinary families implying that gay couples are not ordinary families. And you can see from the quote by one of the Burden sisters, Joyce Burden, that they had very much picked up on this rhetoric during the passage of the bill saying, this government is always going out of its way to give rights to people who have done nothing to deserve them. If we were lesbians, we would have all the rights in the world, but we are sisters and it seems we have no rights at all. But homophobic rhetoric aside, do they have a point? Is there a broader issue at stake here? Can we justify privileging sexual relationships over non-sexual ones? The Burden sisters brought a case against the UK to the European Court of Human Rights based on Article 14 in conjunction with Article 1 of Protocol 1 of the European Convention and they were essentially asking this question. Is it discriminatory to exclude people from accessing civil partnerships if they are functionally equivalent to civil partners? They argued that they were in an analogous situation to spouses and civil partners because they had chosen to live together in a loving, committed, stable relationship for several decades, sharing their only home to the exclusion of other partners. They further argued that given the stated purpose of the inheritance tax exemption for spouses and civil partners was to promote stable and committed relationships, then denying this exemption to siblings serves no legitimate aim and was not proportionate. Their arguments were unsuccessful in both the Chamber and Grand Chamber of the European Court of Human Rights. But from this quite traditional conservative attempt to add another means for wealthy families to avoid paying inheritance tax could a more progressive general principle have emerged. A number of academics have argued that legal recognition should extend to non-sexual relationships. In the United States, an academic called Laura Rosenbury has argued that friends should be recognised. Essentially she argues that recognising friendships through family law is a gender equality issue. She compares the functions performed by friends who don't live together with those that are generally assumed to be performed by spouses and other family members. She argues that spousal relationships in particular are characterised by or assumed to be characterised by gendered patterns of care. In other words, by recognising certain types of relationships the state encourages people to prioritise one type of relationship over other relationships. It encourages us to prioritise our sexual relationships over our friendships. And that is bad for women in her view. So that encouragement, she says, perpetuates gendered patterns of care because extensive amounts of care are expected of such relationships, marriages and family relationships. And it's still women within the family who do and are expected to provide that care. So what she's saying is that sexual marriage-like relationships involve gendered care taking labour. Women within sexual relationships are still much more likely to be the ones who do that labour. So they are inherently patriarchal unequal relationships. In contrast, friendships are not presumed to be exclusive or comprehensive so they don't generally consistently demand the same level of care. And friendships are presumed to embrace norms of equality and autonomy over norms of domestic dependency. So you don't see the gender equality problem that you get with spousal-like relationships and other family relationships. She's arguing that changing the law's focus away from sexual relationships can therefore lead to changed understandings of both family and friendship and potentially that could lead to greater opportunities to structure life free from these state-supported gender role expectations. But she's not arguing that marriage should be abolished and she's not arguing that friends should be regulated by law in a rigid or comprehensive way like marriage. Instead, she's simply saying quite vaguely because she's leaving specific proposals for this to make, but she says that family law should consider ways that the law might support more and multiple forms of personal relationship between adults and thereby acknowledge diverse conceptions of care and reinvent individuals' options with respect to both marriage and friendship. And this type of suggestion, the idea that there should be a menu of forms of relationship recognition, including marriage, has been made by other American family laws too. It's sometimes referred to as a marriage plus approach or a relationship menu approach. But there are other proposals that are much more radical that involve either abolishing marriage altogether or de-centering it so that legal recognition of relationships is centred around care rather than sex. And one of these proposals was made by another American family lawyer, Martha Feynman. She refers to the traditional nuclear family as the sexual family. Feynman argues that legal and social definitions of family are based on a sexual relationship between two adults. Historically, this relationship was between a man and a woman, but family law reforms that have recognised same-sex relationships have actually reinforced the sexual family by allowing more people access to it. And she criticises this model of family, arguing that it causes stigmatisation of single and divorced parents, that it focuses on doing justice between adults rather than on what's best for children, and that it obscures the privatisation of inevitable dependency. So what does she mean by that phrase? She says that dependency is inevitable in the sense that everyone is dependent on others to take care of them at some point in their lives when they're children and possibly also when they're older. The person with the family who is taking care of a dependent person as a result of that caretaking work then becomes dependent themselves on resources to be able to undertake that care. She refers to this as derivative dependency. At the moment, all types of dependency are absorbed into the family, where family members, usually women, take care of inevitable dependence, children and disabled and elderly family members. And this is what Feynman refers to as the privatisation of inevitable dependency. If the family didn't do it, it would fall to the state. In turn, the family also absorbs the derivative dependency of the caretaker. In the traditional family, for example, the wife would take care of inevitable dependency and the husband would provide the financial resources necessary for her derivative dependency. Feynman argues that this privatisation of dependency within the family provides the burden of derivative dependency and allows the state and the marketplace to act without consideration or accommodation for dependency. As a result, when the traditional nuclear family breaks down through divorce or never existed in the case of single-parent families and the derivative dependency transfers back to the state, women are then stigmatised as being a drain on resources. To end this obfuscation of dependency, Feynman argues that the caretaking relationship should be at the core of the definition of family, rather than the sexual relationship between adults. This caregiving family based on inevitable dependency is the unit that would be protected by the state, that would be entitled to special preferential treatment and have a legitimate claim on social resources. The derivative dependency of the caregivers would be recognised and valued by the state, rather than expecting a money-earning husband to financially support his derivatively dependent wife and then stigmatising women when, for whatever reason, that doesn't happen. Laws and policies, she argues, should focus on the needs of the mother-child unit. This is important because raising children and looking after people who are dependent in various ways are important and socially valuable and economically valuable activities, which at the moment are not properly valued because they're hidden within the family. Family law is focused on the sexual relationship that may have no element of dependency at all, not on those dependent relationships that need it the most. The result of not valuing these caregiving or mothering activities, and she's using mothering, by the way, in a gender-neutral way, so anyone who takes care, whether they're male or female, mothers or fathers, are referred to as doing mothering activities. The result of not valuing these caregiving or mothering activities is to cause women to become vulnerable both economically and in other ways within and outside of the family. Similarly, Jonathan Herring argues that family law should be oriented away from sexual relationships and towards caring relationships. He suggests that family law should be less sexy and more careful. The sexual aspects of relationships is a red herring, he says. Instead, what makes a relationship worthy of promotion by the state is care and mutual support. These are the things that society benefits from, especially when the needs of the person who is cared for would otherwise fall to the state. So under both the Feynman and Herring proposals, the burden sisters would have a strong argument to suggest that they should have an exemption from inheritance tax based on their relationship of mutual care and support. But if we look more closely at their particular case in the social context in which we live, I would suggest that this case highlights the hidden dangers of replacing the conjugal system with a care focus system. Primarily what the facts of this case demonstrate for me is how such proposals could be co-opted to further an agenda of private wealth transmission rather than to collectivise social responsibility for care. So one of the key critiques of marriage is the role it plays in the privatisation of care and dependency as Feynman highlights. But in the absence of other broader reforms, I am not convinced that reorienting family law to focus on care is the answer. In fact it could well further entrench the problem by recognising and privileging care in this way and in the context of the current climate of state austerity and a government ideologically focused on privatisation. This could provide an excuse to accelerate the withdrawal of state services. Also the important question of what happens when the recipient of care does not have the resources to adequately compensate the carers financial disadvantage through property redistribution. So what if the burden sisters for example did not have enough resources that they would be liable for inheritance tax, would their care in that situation then simply go unrecognised? It seems that in the absence of some form of private wealth in the hands of the cared for that the carer would remain in the same position as many housewives used to find themselves on divorce having to rely on state welfare and stigmatised as a result. While collective responsibility for care is hidden behind incentives for privatised responsibility these rewards for care in the form of legal recognition and privileges render both the carer and the cared for vulnerable to changing family circumstances even in families that initially might have had sufficient resources. It should also not be assumed that legal recognition will result in financial benefits for all of those in care taking relationships as Claire Young found in relation to the recognition of same sex couples in Canada's tax laws while some benefited from inclusion, others and it was usually those least able to afford the additional cost actually found that their tax liabilities increased when their relationship was recognised. So she demonstrated the ways in which many of these relationship tax breaks including those focused on dependency are inequitable and discriminate without good reason against couples with low incomes and in favour of those with high incomes and that arguably would be the case with the expansion of the inheritance tax exemptions sought by the burden sisters. It would be wealthy carers and caries that benefited at the expense arguably of those carers and caries who were not wealthy. So I argue that we need to be cognisant of the ways in which reorienting legal recognition and privilege towards caring relationships can still serve the interests of the privatising neoliberal state and work against poorer carers and non carers. Of course, as Herring notes in his response to my critique the neoliberal state may nevertheless privatise responsibility without giving carers any resources such as tax breaks but a system of recognition legitimises the rolling back of state support providing a narrative that can be used to justify it and stigmatise those who cannot provide or financially support privatised care. So if cuts are made on this basis to the welfare state then it's poorer carers and cared for people who might find themselves financially disadvantaged with wealthy people like the burden sisters benefitting from the tax breaks of a privatised regime. So on the basis of her analysis of the Canadian tax system Claire Young argues in favour of enacting the recommendations of the Law Commission of Canada and they had rejected any relationship-based approach to the legal privileges as far as possible focusing instead on the objective of the individual provision. So this means that if we were to apply that methodology in the case of the burden sisters the question would be not about how deserving or otherwise the sisters are of recognition but rather about what the objective of the inheritance tax exemption is and whether the sisters relationship fulfills that objective-based criterion. So the Law Commission published a report called Beyond Conjugality recognising and supporting close personal adult relationships and they recognised, sorry, they rejected a relationship-based approach entirely and instead focused on the purpose of the provision. So they centred their approach around the values of equality, autonomy, privacy, religious freedom, coherence and efficiency. And the focus was on the functional characteristics of the relationship, not its status. So they wanted a system that recognised emotional and or financial interdependence over whether someone has gone through a marriage ceremony for example. So the values of equality and autonomy were central so they wanted their proposals to pay particular attention to equality within relationships, especially equality between men and women and they mentioned in particular the need for the state to ensure the personal security so the physical, psychological and economic security of those in relationships. So you can see the protective element of family law being emphasised there. The principles of autonomy, privacy and religious freedom mean that the state should remain neutral with regard to the form or status of relationships and not accord one form of relationship more benefits or legal support than others and should avoid establishing legal rules that require intrusive examinations into the intimate details of a relationship unless the relationship involves violence or exploitation. And finally, the principles of coherence and efficiency require that laws have clear objectives and that their legislative design corresponds with the achievement of these objectives. In accordance with these principles the Law Commission of Canada came up with a series of questions to ask of each individual legal right that is currently associated with relationships. So, for example, rather than looking at who should be included in marriage or civil partnerships they would look at each individual right associated with marriage like the inheritance tax exemption and then ask four questions about each provision to determine who should be included in it. And these are the questions that they felt should be asked. First, are the objectives of the law still legitimate? If the objectives of the law are no longer appropriate then they would consider either repealing it or fundamentally revising it rather than include more people within it. Second, if the objectives of the law are still legitimate are relationships relevant to the objective at hand? If relationships are not relevant or not important the legislation should be redesigned to allocate the rights and responsibilities on an individual basis. In other words, if you had something like a financial benefit could that be given to the individual rather than on the basis of a relationship? Third, assuming relationships are relevant could the law allow individuals to decide which of their close personal relationships should be subject to the law? Finally, if relationships do matter and self definition of relevant relationships is not a feasible option is there a better way for the government to include relationships? So this is a radical proposal because it involves dismantling and fundamentally redistributing the package of rights and responsibilities that are associated with marriage rather than transferring them to different types of relationship. So it also rejects other one size fits all frameworks such as the care taking frameworks that Feyyman and Herring propose. So if we apply this methodology to the burden sisters case then they might be eligible for access to a provision such as a tax exemption not because their relationship is morally more deserving than someone else's but instead by reference to the objectives of the law. So what are the objectives of the inheritance tax exemption and do they meet those objectives? The privileging of marriage and civil partnerships has meant that the prohibition of marital status discrimination has been rendered virtually meaningless in the context of access to spousal benefits. In a sense the burden sisters are correct to suggest that having a functionally covalent relationship to spouses in most respects that they are arguably being discriminated against there is an unjustified preferential treatment for spouses and civil partners in UK law but redressing this does not mean simply expanding the categories of relationships that are eligible for such privileged status but rather as the Law Commission of Canada suggests considering the legitimacy of the objectives of each law and thereby dismantling the package of legal privileges associated with marriage. So the question should not be should wealthy siblings gain access to spousal inheritance tax exemptions but rather is it legitimate to have a blanket exemption from inheritance tax based on relationship status rather than on another criteria such as financial need and I would suggest it's only by asking these different questions that we can start to think differently about family.