Family law and emotion

In this chapter, we review how cognitive understanding of duty, obligation, commitment and respect have changed over time, and how these changes correspond - or fail to correspond - to feelings of love. We argue that we are now witnessing the transformation of the family ideal, from relationships rooted in hierarchical and intrinsically gendered roles to egalitarian relationships rooted in mutual respect, flexibility and trust. As the ideal necessary to nurture feelings of love - and workable family relationships - changes, so too does the legal regulation of marriage, the willingness to acknowledge non-marital outlets for sexual expression, and determinations of parental standing, obligation and rights. We first explore how marriage, as a legal and societal construct, has shifted from a hierarchical emphasis on duty to a more egalitarian emphasis on trust, and how this shift corresponds to changing understandings of love’s physiological components and the legal consequences of marriage and divorce. Second, we explore corresponding changes in non-marriage. As the marital ideal has shifted away from notions of duty rooted in men’s obligation to take responsibility for consequences of pregnancy, marriage has become optional, with increasing legal recognition of non-marital family relationships. These relationships vary more than marital ones, and likely lack the same obligation to maintain relationship emotional quality. A lack of relative equality or ability to share decision-making has become reason not to marry. Third, this chapter considers emotions associated with parenthood. When adults co-parent and do not trust in each other - or simply do not know each other terribly well - they have reasons to be wary. If they love each other but do not believe that the relationship will last or will benefit their children, they may feel conflict between concern for their children and relationship management abilities. The same factors that distinguish committed and contingent adult relationships also influence the emotions that underlie parenting partnerships. We conclude that the law of marriage and divorce has changed in tandem with emotions corresponding to modern marital obligations, but not for non-marital relationships. Family law takes an all-or-nothing approach to the legal recognition of family statuses that does not fully accord with the contingent nature of modern family ties and emotions.