Relationships in the welfare society – developing a relationship law
Until the middle of the 20th century, the marriage contract was the most important legal event in the lives of both men and women, but today marriage is no longer crucial for the life and rights of the individual. One aspect of this fundamental change is the crisis caused to the inner logic of welfare legislation by the population’s choice of alternate forms of relationships to marriage. The Danish legal welfare model is off balance in matters of maintenance support. Legislators have not been able to or have not wished to accept the consequences of the change in the societal function of marriage. This has led to confusion in connection with maintenance obligations and the right to social benefits and welfare benefits generally. One effect of this legal confusion is the development by the welfare state of a surveillance function that is built on mistrust of the citizen and that forms the basis of a growing antagonism between the citizen and the state. The record high taxation constitutes a special dimension in this connection. The changed status of marriage and the dissolution of traditional family relationships is a tendency that is particularly strong in Nordic countries, but that can be seen throughout Europe.
One area is the change in relationships over a lifespan. A great deal of attention has been focused on so called ‘families with children’: That only covers a small part of an individual’s lifespan. The legal aspects of relationships formed by the young and the elderly are overlooked. The same is true of relationships formed in the serial families that are created by the relationships of adult couples. The unnoticed relationships are often not couple relationships and cannot therefore be compared to marriage. In parts of welfare legislation, we see the rudiments of recognition of these new types of relationships, e.g. ‘relatives’. The practice of the ECHR and CJEU has also, to some extent, noticed these new relationship tendencies. Danish practice also reflects on the one hand these tendencies and on the other adheres to the traditional forms of marriage, cohabitation and family as a norm. Both European legal practice and Danish legal practice must therefore be included and analysed in the individual projects.
The increased attention to autonomy raises new questions about forming relationships, e.g. adoption or the establishment of fostering and care relationships.
The described structural development has a gender aspect in that it has different legal implications for men and women. It is relevant to include an age and ethnicity perspective. Discrimination and equality perspectives will therefore be a transversal dimension.
Section 75(2) of the constitution (the right to maintenance) and ECHR Protocol 1 Article 1 (property right to social benefits) are fundamental issues for the research team.
Investigation of the legal structure of relationships in selected social and welfare regulation (both public and private):
1. In light of marriage analogies. An investigation of the legal surveillance instruments used by authorities to deny the right to social benefits will be included.
2. Clarification of legal regulation that is not based on marriage analogies.
3. Unnoticed relationship regulation more generally in legislation, e.g. tax law, labour law, health law, administrative law and contract law (e.g. pension contracts).
Researchers from the social law group (Stine Jørgensen, Kirsten Ketscher, Freya Semanda, Marta Carneiro and Martine Kiel), from the tax law group (Jacob Graf Nielsen) and from health law (Mette Hartlev).
Project 2: Cross-border relationships in the EU.
Union citizenship is the legal basis for free movement. This has created a number of relationship legal phenomena that partly fall outside the residence directive. For example, unaccompanied children with union citizenship raise new problems. One special, unnoticed problem is the welfare rights of Danish citizens returning home. The maintenance rights of elderly people (money, including pension, and care) call for particular attention. The project will primarily consist of structural analyses rather than detailed investigations.
Researchers from the social law group (Stine Jørgensen, Kirsten Ketscher, Freya Semanda, Marta Carneiro and Martine Kiel).