From male provider to marriage for all.
Text: Christoph Dieffenbacher
What exactly constitutes a family is mostly determined by society – with genetics and reproductive medicine also playing an increasingly prominent role. The legal system is hard pressed to keep up, and laws have to be regularly revised.
From the traditional male breadwinner model to modern patchwork structures, the family – often described as “the smallest unit of society” – can take on an ever-wider range of guises in Western states. The concept is typically understood as a group comprising parents and children living under the same roof – although this description is not necessarily accu-rate, either today or in the past.
Does the family merit special protection or privileged treatment compared with other forms of cohabitation? Does the institution of marriage still mean anything? What deﬁ nes the relationship between parents and children? What is the role of new partners, same-sex couples or adopted children?
The nuclear family as standard
The issue of family and its changing forms is an ongoing challenge for legisla-tion and politics alike. A relatively recent development in Switzerland is the option of registered partnerships for homosexual couples, introduced in 2007. The idea of “marriage for all”, whereby the state acknowledges formal life partnerships for all couples regardless of gender or sexual orientation, is currently under debate.
Switzerland still lacks speciﬁc legislation on the status of couples that choose to cohabit without getting married, or of rainbow or patchwork families that include children from previous relationships. In France, meanwhile, heterosexual couples can also choose to formalize their relationship with a special contract (“Pacs”) rather than get married.
Legal systems can struggle to keep up with the diversity of modern family arrangements. “There are far more socially acknowledged and accepted kinds of family than those recognized by law,” says Professor Jonas Schweighauser, an honorary professor of family law at the University of Basel and a practicing lawyer in Binningen, married with two daughters. In spite of this proliferation of family structures, Schweighauser believes that many people still think of the nuclear family – a couple with children – as the measure of all things. At the same time, he points out, current legislation is heavily biased toward traditional marriage.
Until 1983, a woman wishing to work outside the household – or simply open a bank account – had to have permission from her husband as the head of the family, while the practice of “concubinage” remained illegal in the cantons of Valais and Schwyz well into the 1990s: cohabitation was punishable by law and prosecuted by authorities. Homosexual couples were discriminated against, and children born outside marriage – along with their mothers – were socially ostracized and neglected in legal terms.
Openness and individuality
None of this was especially long ago. Yet, family law has since gone through a period of radical change toward greater openness and individuality: “In fact, the shift from a restrictive to a liberal understanding of what the law regards as a fam-ily occurred relatively quickly,” Schweighauser explains. Whereas the idea of “marriage for all” was barely accepted just a few years ago, surveys show that it is now favored by a majority of Swiss people. Nevertheless, if Switzerland were to introduce such a law it would be one of the last countries in western Europe to do so.
Besides social pressures, changes in family law are driven above all by developments in reproductive medicine, Schweighauser says. For instance, whether or not two people are directly related can now be ascertained by means of a simple genetic test, leaving little room for doubt as to the identity of a given child’s father. Still, medical procedures such as in vitro fertilization or surrogacy raise new issues requiring legal clariﬁcation.
Switzerland is behind the international curve in these areas, Schweighauser explains, which is not necessarily a disadvantage. For instance, many countries already have legislation allowing certain areas of reproductive medicine, whereas in Switzerland surrogacy and other reproductive procedures remain forbidden to unmarried couples. The differences between different legal systems are problematic in that parents can circumvent the laws of their own country by having their child caried to term and born abroad.
Institution with a future
Whereas Schweighauser mostly deals with separations and matters of child law in his daily work as a lawyer, he also offers free legal advice at the University of Basel. Every now and then he is approached by a young couple considering marriage: “I recommend getting married when one of the two partners is faced with a reduction in income, for instance if they are planning to have children.” The reason for this is that it gives the economically less powerful person – usually the woman – greater protection than they would otherwise receive.
Schweighauser is conﬁdent that the family is an institution with a future, even in light of the high rates of divorce: “I am convinced that there are just as many good and bad marriages today as there were 50 or 100 years ago.” Whereas couples in previous centuries had children as a way of providing for old age, today people enjoy much greater state support. Meanwhile, he believes that the current divorce rate of over 40% is explained primarily by the fact that people can now afford to get divorced – in the past, couples were forced to stay together, quite literally until death did them part.
Having children without living together
Deﬁnitions of family life can also take unusual forms. A growing trend in Germany is the practice known as co-parenting, Schweighauser explains: adults form partnerships in order to have a child, with no intention of entering into a relationship themselves. An association helps would-be co-parents find like-minded partners online.
Under this model, two people have a child together – generally by means of a sperm donation – which they raise jointly, often without living together. In legal terms, their rights as parents are no different to those of other couples – the only difference being their decision to completely dissociate child-raising from having a romantic relationship. “Couples of this sort probably put a lot more thought into having children than many others,” Schweighauser remarks.
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