From 'form' to function and back again: a comparative analysis of form-based and function-based recognition of adult relationships in law.

This thesis explores the desirability and viability of a function-based as opposed to a form-based approach to adult relationship recognition in law. It explores the benefits and difficulties with both form-based and function-based approaches to determine whether either has any significant advantage over the other, both in relation to a need to provide a system of relationship recognition that is inclusive of the diversity of family relationships formed today, and in relation to the protective and symbolic functions of family law. To do this, the thesis will compare the English and Welsh approach to relationship recognition with that adopted in Australia. The thesis will show that form- and function-based approaches share many of the same benefits and both can be flexible because they can be used in ways that are inclusive of a variety of relationship types and both approaches have their disadvantages. On balance, function-based systems appear more principled than form-based systems because they focus on the quality of the relationship and not merely on its structure and function-based systems are better placed to protect the vulnerable partner in a relationship because there is no need to opt-in for legal recognition. But, form-based systems should not be abandoned because they have the benefit of being administratively efficient, and are better placed to serve family law’s symbolic function. Both form- and function-based approaches have the potential to be used in radical ways to respond to the needs of real families, but social reality and political will limits the development of both approaches to relationship recognition.