Abstract

AbstractThere is a conflict at the heart of family law between neoliberal ideas of autonomy, which increasingly influence law and policy, and the lived realities of family law's subjects. Neoliberal norms, which assume individual 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, providing 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 economically rationally, and have freedom of choice. Not only do all three assumptions fail to capture the realities of separating parents’ lives, but they actively cause harm in the family law context by devaluing care.

Highlights

  • There is a conflict at the heart of family law between neoliberal ideas of autonomy, which increasingly influence law and policy, and the lived realities of family law’s subjects

  • There is a conflict at the heart of family law between increasingly influential neoliberal ideas of autonomy[1] and lived realities

  • Having outlined three neoliberal assumptions about individuals that underpin family law, this section explores each assumption in greater depth and, drawing on my empirical findings, explains why they are harmful for carers and children

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Summary

INTRODUCTION

There is a conflict at the heart of family law between increasingly influential neoliberal ideas of autonomy[1] and lived realities. These neoliberal norms of individual responsibility, financial independence, and freedom of choice permeate family law and its conception of the legal subject They increasingly influence how family law disputes are resolved.[40] Diduck notes ‘the creation of an autonomous system. The neoliberal norm of equal bargaining power may be harmful both in disguising unequal bargaining positions and in venerating outcomes that are financially detrimental to those with caring responsibilities This has important implications for the increasing emphasis on private ordering in family law.[57]. Harman describes individualist behaviour that conflicts with the norms of intact families discussed in the introduction This assumption that individuals have freedom of choice, and ought to be held accountable for the financial costs of their decisions, is evident in family law. If they do not want to be, the carer cannot compel a more equitable sharing of care, and if the parents are not married, there is little financial redress for this

CHALLENGING THE NEOLIBERAL CONCEPTION OF SEPARATING PARENTS
A bargain between two equally autonomous individuals
This economic disparity appeared to be connected to caring responsibilities
Economic rationality
Freedom of choice
The impact of work history
The extent to which care is shared post-separation
Relationship roles as the baseline for negotiations
CONCLUSION
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