‘We are here to put the past behind us’: violence and welfare governmentality in Finnish family law

ABSTRACT

Family justice occupies a complex space where public social (welfare) law intersects with private family law. These two legal domains bring distinct perspectives on subjects, rights, responsibilities, and entitlements. This article draws on interview data and previous research to examine welfare governmentality in family law, particularly in Finland and more broadly in the Nordic welfare states. Using intimate partner violence (IPV) as the lens of analysis, the article studies family law’s exclusionary structures that render particular forms of loss resulting from the relationship non-addressable. The rationales embedded in law, as evident through welfare governmentality, significantly impact the production of specific types of vulnerable, autonomous, gendered, and relational subjects. Moreover, these rationales shape our understanding of the law’s operations, categories, truth claims, knowledge development, and regulatory practices. Notably, family law-as-knowledge falls short in recognising violence and the subsequent losses suffered by victims within the contexts of financial settlements and child custody and access. This failure can be attributed to conceptual distinctions within family law, an overriding focus on the child’s interests, and the law’s national orientation.

KEYWORDS:

• Family justice system
• marriage
• child custody and access
• intimate partner violence
• governmentality
• law and welfare

Introduction

The gap between how family life is ‘done’ in reality and the law’s conceptions of it has been a central concern in family law debates (e.g. Diduck 2003, 2020, Choudhry et al. 2010, Douglas 2018, Heenan 2021). This gap remains evident, for example, in how the law idealises the autonomy of post-separation families and prefers private settlements to family disputes. When parents cannot reach an agreement on their own or violence is involved, the law’s image of the harmonious post-separation family corresponds poorly with how we ‘do family’ in practice. This article examines the role of law in family disputes through the lens of intimate partner violence (IPV) and adopts the concept of ‘welfare governmentality’ to study family law’s exclusionary structures which render particular forms of loss resulting from the relationship non-addressable.

In English family law, the promotion of autonomy and the ‘settlement mission’ of law have ostensibly been combined to create an imbalance between public and private justice in the family justice system (Diduck 2016, Heenan 2021). Some scholars have feared that the trend is to push family disputes into the realm of non-law and leave law relevant only in disputes where a clearly identifiable ‘vulnerable’ party is involved (Diduck 2016). The worrying trend, often associated with neoliberal-influenced policies that adopt market principles as dominant in the organisation of political, economic and social life, is that while autonomy and vulnerability become constructed as opposites and agentic citizens viewed through a lens of individual responsibility and autonomy, the focal impact of gender norms is neglected (Heenan 2021, p. 387). Such legal frameworks also fail to understand vulnerability and persisting inequalities and hierarchies as part of human life, especially in close relations defined by intimacy and responsibilities of care.

This article delves into these internationally significant debates surrounding family law from a primarily Finnish perspective. The analysis is based on interviews with seven research participants who possess either personal experiences related to IPV or professional expertise in private family law proceedings. Some of the findings may have broader implications for other Nordic countries, given their shared legislative heritage and cultural similarities (Husa et al. 2008, Letto-Vanamo and Tamm 2019). The basic elements of family law in the Nordic countries include liberalism and neutrality towards private morality (e.g. no-fault divorce, emphasis on individual autonomy), equality (gender equality and reciprocity are considered important, but also other discriminatory grounds such as whether a child born within or out of wedlock have been abolished) and secularism. Individualism is highly appreciated and reflected for example in that each spouse owns her or his property alone, and one cannot be held legally responsible for the debts or obligations of one’s spouse (Agell 2003, Jänterä-Jareborg 2012, Brattström 2014, Koulu 2015, Mustasaari 2016). While gender equality remains a cornerstone of the Nordic welfare states, including Finland, it is noteworthy that IPV rates in the Nordics continue to be alarmingly high (Gunnarsson et al. 2023, Nousiainen 2023). This juxtaposition of high IPV prevalence against a backdrop of robust gender equality has been aptly termed the ‘Nordic paradox’ (Gracia and Merlo 2016). Consequently, examining the intersection of IPV and family law becomes crucially important within this region.

The article commences by introducing the theoretical concept of welfare governmentality and briefly outlines welfare governance within Finnish family law. It then contextualises these insights by drawing comparisons with observations from other Nordic family legal systems. The research context and data used for analysis are then described. In the analysis section, the experiences of research participants and the exclusionary structures within family law are discussed. The article concludes by reflecting on how legal operations can inadvertently silence IPV and underscores that while IPV is a significant factor in family disputes and conflicts, it remains somewhat overlooked within family law.

Enhancing wellbeing of the population through family law

Welfare governmentality and family law-as-knowledge

In Western legal systems, the general trend in the legal regulation of the family has been towards liberalisation and deregulation (Pylkkänen 2007, Eekelaar 2013, Herring 2014). Instead of upholding certain social structures or maintaining doctrinal purity of an enclosed normative system, the main concern of family law is increasingly the wellbeing of individuals (Eekelaar 2013). While adopting the improvement of individual wellbeing as a central goal of the regulation of families has no doubt improved the quality of life for many citizens and balanced inequalities prevailing in society, liberal governance based on wellbeing also has its underside. As Smart (2006, p. 125) points out, ‘the notion of welfare has challenged … the former strict doctrine of rights, ownership and entitlement in family matters’, making policies of care and appeals to relationality, also sites of governance.

The concept of ‘governmentality’ originates from Foucault and has been further developed by various scholars (Rose 1999b, McCormick 2020). It denotes a specific form of power that is fundamentally economic rather than prohibitive. Emerging in Europe during sixteenth century, it represents an extensive theory of state power that relies on ‘a certain way of striving to reach social and political ends by acting in a calculated manner upon the forces, activities and relations of the individuals that constitute a population’ (Rose 1999a, pp. 4–5). Various policies contribute to the reproduction of society by administering the life of the population, processes Foucault (2003) referred to as biopower. Biopower unites the technologies used to govern a population for the purpose of strengthening and enhancing the population (biopolitics) and technologies used to discipline individual bodies (anatomo-politics). In a biopolitical order, to govern requires a particular mode of thought, a mentality – hence governmentality. Feminist and queer studies on family and state have analysed family law as a site of normalising governance (see e.g. Meeks and Stein 2006, Cadwaller and Riggs 2012).

While the regulation of the family in different sites of policy is a form of biopolitics, the disciplining of individuals, primarily through proliferation of knowledge and expert-discourses is an aspect of disciplinary power. Normalization refers to the ways in which ‘the norm’ is intertwined with biopolitics and disciplinary power. ‘the norm’ privileges ways of life and makes them seem natural, liberal and desired by the individual as something he or she has chosen freely, thus producing normalised desire as individual and rational. Simultaneously this renders legitimate policies that, in the name of enhancing the wellbeing and life of a population, favour the normalised way of life.

Normalizing governance operates through dividing a population into those who are granted privileges and those who are excluded from them, a division based on underlying moral ideas of entitlement and responsibility, as well as autonomy and vulnerability. To strengthen and enhance populations requires a distinct governmental rationality, a will to educate habits, desires, aspirations and beliefs, and the deployment of technologies of responsibilization (Rose 1999b, pp. 75, Li 2007). I use here the term ‘welfare governmentality’ to refer to a specific mode of governing that deploys the specific political economic techniques and distinct forms of administration, regulation and expertise required for comprehensive provision of social security and well-being to citizens (Helén 2016). This does not entail a governing entity with a distinct will, but rather a formulation and assemblance of various rationalities, as well as shifts, disruptions, and continuities in these rationalities over time.

As opposed to viewing government through a monolithic and singular concept of state, Li (2007) suggests we should understand governmental initiatives and interventions as assemblages. Analytics of governance would then direct our attention to, for example, how subjects are differently positioned, formed and assembled in relation to specific powers, as well as to ‘how different domains are constituted as governable and administrable’ (Dean 1999 cited in Li 2007). In law, ‘welfare governmentality’ means an ongoing struggle concerning the proper place and functions of the law. Such struggles are particularly evident in the field of family justice, which is (often ambiguously) located at the intersections of public social (welfare) law and private family law, which both come with particular understandings and approaches to subjects, rights, responsibilities and entitlements.

While all would agree that the ‘law’s instincts’ (Diduck 2020) or tacit ways of knowing are historically formed rather than natural, the analytics of governmentality would direct us to study their genealogies, including shifts, continuities and disruptions in rationalities and modes of thought that shape the law’s instincts and knowledge. While providing such a genealogical analysis falls far outside the scope of this article, two enduring rationalities seem worthwhile to mention. The first concerns the Savignyan roots of family law resting on the dichotomy between the arbitral order of the contract, on the one hand, and the natural, moral order of the family status on the other (Kennedy 2010, Helin 2004). Efforts to free family law from its cage of being perceived as private and based on morality often seem to end up in endorsing the ‘neutral’ logic of the market, which perceives the subjects as detached and autonomous (Mair 2017).

The second rationality concerns the pre-occupation of family law with property, which Diduck, building on the work done by legal historians such as Cretney (2003), traces back to the formation of different systems of family law for the rich and the poor. A system for the rich would be ‘private, formulated in the courts and implemented by judicial discretion’ while the system for the poor would be public and formulated and implemented by statute, primarily the Poor Law (Diduck 2018). In contemporary Nordic family laws, this logic of family law as a specific species of property law exists to serve those with wealth to fight for, whereas social welfare legislation would be in place for those who need other sorts of support. Simultaneously, as Lauri has shown (2019, p. 114), ‘the logics of economy and austerity, paired with the trope of individual choice and responsibility, are central traits of the Swedish welfare regime’.

As governmentality relies on expert forms of knowledge, central to its operations are the making, normalising, naturalising and maintaining of divisions, categorisations and conceptualisations relevant for the construction of expert knowledge and disciplinary limits therein. Heenan (2021) and Mant (2022) have studied dominant neoliberal understandings of autonomy and contemporary ideas concerning the place and role of family law. Heenan’s (2021) study on separating parents’ realities and the intersecting issues of family law highlights the need to examine simultaneously issues pertaining to financial settlements at divorce and child custody and access, as these are connected, although legally carefully kept separate. This conceptual separation is part and parcel of law-as-knowledge and widely supported and reinforced by, for example, practitioner organisations (Heenan 2021, p. 388).

Nieminen and Sarasoja (2023) suggest that what is construed as possible in a particular field of law and policy is framed by law-as-knowledge. In interaction with other forms of knowledge, such as market logic, law may exclude particular kinds of subjects – an operation which Nieminen and Sarasoja call epistemic othering (see also Keet 2014, who uses the term in postcolonial context). Moreover, for law-as-knowledge it is crucial to identify, as Makkonen (2012) notes, a specific legally meaningful event and specific individuals involved, even though such an episodic view might prevent us from seeing structural and institutional problems. The fact that financial matters and child matters of family law are analytically kept separate and fall under different rules neatly follows the rationalities of welfare governmentality, but may end up enhancing the exclusions evident in both areas of family law, especially in families with IPV.

Deferred community of property and the ideal of the negotiatory post-divorce family

Welfare governmentality emerges through shifts towards contractualization (see e.g. Swennen 2015, Koulu 2015) and the prioritisation of private settlements. These shifts are evident both in matrimonial property matters and child custody and access disputes.

The normative orientations towards settlement educate specific types of post-separation families and autonomous and responsible ex-partners and parents. Parents are expected and guided to resolve issues relating to post-divorce arrangements through agreements and contracts rather than court orders. According to Koulu (2015), this negotiatory ideal facilitates new forms of regulating and directing families:

Along with the rise of a more individualistic model of family law, allowing more leeway for party autonomy with regard eg. to property issues, we can pinpoint a new focus on negotiation and harmony within the family sphere. In child law especially it makes sense to speak of a negotiatory ideal: the proper sort of family is based on affectionate, negotiated bonds and even after divorce, the expectation is that the parties will participate in mediative practices and reach an appropriate consensus (Koulu 2014). While agreements are still important, a focus on the agreeable settlement of any potential disputes has superseded the traditional understanding of party autonomy as the basis of dispositive statements.

(Koulu 2015, p. 213)

The autonomous, responsible and negotiating subject represents the dominant epistemic figure of contemporary family law, expected to find durable solutions to any disagreements. When combined with structures that support negotiation, this expectation is believed to yield positive outcomes. For example, in court-assisted mediation in child cases, this approach has been successful (Nylund 2018, Linnanmäki 2021). By reproducing specific ideas about the governed subjects, law-as-knowledge fosters a particular mode of relations and responsibilities amongst the population it governs.

The Nordic matrimonial property systems build on a particular vision of solidarity and responsibility between the spouses as they seek to enhance equality of spouses through a legal presumption that all property owned by the spouses are to be taken into account as matrimonial property and shared equally in the event of dissolution of the marriage. This default system is called the deferred community of property. In order to counterbalance what is sometimes viewed as an extensive marital right to a share in the other spouse’s property, the legislation gives the spouses the right to opt out of the equal sharing system, in full or in part, through a registered matrimonial property agreement. The trend towards more emphasis on private autonomy has generally been considered progressive (see e.g. Jänterä-Jareborg 2012, Scherpe 2012), although the Committee on the Elimination of Discrimination against Women (CEDAW) has, for example, encouraged the states to conduct research on the economic consequences of divorce, and consider revising the definition of matrimonial property, so that a marital right would include pension rights and other work-related benefits and future earnings (see e.g. Mustasaari 2016, Fredwall and Wærstad 2022).

In line with international debates on family law, the law’s preoccupation with property and exclusion of those who are not wealthy are issues also in the Nordics. The costs of litigation effectively limit the possibilities of relying on the legal system. If the economic interest is not high enough, no court or other legal services are realistically available for the individual. When the procedure of distribution of marital assets rests on private attorneys, as for example in Sweden and Finland, any dispute concerning the distribution of assets will in the first instance be solved by a court-nominated estate distributor. No direct access to court is available to the parties, as the distributor has the mandate to solve all issues arising from the marital relationship. All lawyers interviewed for this study considered this system economically beneficial and lighter than the court system, although in complex cases estate distributor costs may be high.

A further and significant challenge for gender equality and access to justice is the persistently high prevalence of IPV in the Nordic Countries (Gracia and Merlo 2016, Lauri 2019, Nousiainen 2023, Hellum et al. 2023). Article 3 of the Istanbul Convention (Council of Europe Convention on preventing and combating violence against women and domestic violence) establishes that IPV constitutes a violation of human rights, is a form of discrimination against women, and covers in the definition of ‘domestic violence’ all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners.

Economic abuse, albeit poorly recognised as violence (Kaittila et al. 2022, Nyman et al. 2023) is defined by the European Institute for Gender Equality to include

[a]ny act or behaviour which causes economic harm to an individual. Economic violence can take the form of, for example, property damage, restricting access to financial resources, education or the labour market, or not complying with economic responsibilities, such as alimony.(https://eige.europa.eu/publications-resources/thesaurus/terms/1229)

Economic violence is particularly interesting from the perspective of family law, which specifically deals with the partners’ financial relations and responsibilities towards one another. However, family law has limited means to recognise the economic abuse that extends particular episodic instances of mismanaging marital property, especially in marriages of not so wealthy couples. The Finnish Marriage Act (234/1929), for example, establishes particular compensation rules in cases where financial affairs have been mismanaged by a spouse with consequences on the joint marital property at distribution (Sections 92–96), but these can be difficult to prove and address poorly continuous economic violence. By rendering the claims of victims of (economic) violence legally irrelevant, family law-as-knowledge excludes particular kinds of subjects, those whose (financial) losses result from abuse. This exclusion, here conceptualised as epistemic othering, also emerges in relation to the difficulties of the law in dealing with IPV in the context of child custody and access disputes. A gradual shift towards better recognition of children as victims of violence has occurred in cases where one of the parents has been violent towards the other. For example, the Finnish Supreme Court (Korkein oikeus) recently ruled against the access rights of a father on the basis of the effects of IPV on children (KKO 2023:5). The Court explicitly noted that, following the reform of the Act on Child Custody and Right of Access (361/1983), protecting the child from all forms of violence is now more central than before, including IPV not specifically directed at the child. Similarly, the Norwegian Supreme Court (Høyesterett) has emphasised the state’s responsibility to protect children from the effects of IPV directed at a parent. In 2021, Sweden introduced a new provision in the Criminal Code (Brottsbalk 1962:700) that criminalises the violation of a child’s integrity (barnfridsbrott, Chapter 4, Section 3). This provision applies to situations where a criminal act of violence has been committed against a person close to the child.

Nevertheless, studies reveal that violence is poorly recognised and seldom considered in the assessment of the best interests of the child in custody and access cases (Hiitola and Hautanen 2017). Often, violence is perceived as an issue related to the parents’ intimate relationship, rather than being relevant to the assessment of parenthood. In criminal court proceedings related to stalking and IPV, Finnish children are all too easily relegated to invisibility (Koulu et al. 2022). Even when violence has occurred, the parents may be directed to mediation, during which the possible continuation of IPV and its effects on the victims risk being overlooked.

Data and methodology

This research is part of the author’s research projects on child welfare, children’s rights and access to justice in transnational settings, which map the diverse phenomena that should fall under the umbrella of transnational child welfare but often go under the radar of legal and social work practices. Additionally, the projects examine how individuals are affected by the contingent and changing social relations that simultaneously condition and emerge in the field of transnational child welfare, how different actors view the adequacy of the support provided by the state, and how bureaucrats use and make sense of law in different settings (Mustasaari 2022, 2024, Kivioja and Mustasaari forthcoming).

Research material on child welfare in transnational settings collected at this point consists of literature, legal texts and cases, media materials, 193 case files on cross-border child welfare handled by the Finnish Central Authority during the period between 2012 and 2020, and 65 qualitative semi-structured interviews (Galletta 2013) or teller-focused interviews (Hydén 2014, Bredal et al. 2022) with key stake holders including state officials in the Foreign Ministry and the Ministry of Justice, social welfare professionals, police officers, lawyers, NGO representatives, and private individuals, as well as several informal discussions and observation.

The research material was collected with the purpose of studying specifically transnational interaction from a child-centred perspective, and as the study did not seek to specifically examine violence, IPV has been only one theme in the interviews. However, as IPV was touched upon in almost all interviews, I gradually began to pay more attention to how experiences of IPV intersect with the family justice system also in situations without any transnational element. To some extent, these aspects also came across when the research participants contrasted cross-border cases with national ones.

While the data speaks to the scholarship on gendered geographies of power (Mahler and Pessar 2001), making explicit how gender-based family violence is in many cases ‘perpetrated, endured and facilitated transnationally’ (Bredal 2020, p. 153), the experiences of IPV and coercion should also be examined as something that the family justice system addresses inadequately, regardless of the transnational aspect or migratory background of the individuals involved. Moreover, the transnational aspect does not cover the lives of the research participants in their entirety; in fact, many of them shared experiences and life events about which there was nothing particularly transnational. In this article, the focus deliberately shifts from the transnational to IPV and family proceedings, although the transnational element continues to be of relevance especially when it intersects with violence and affects the ways in which violence becomes (in)visible and (un)seen by the legal system. This article specifically draws on seven interviews that, in the preliminary analysis of the interview data, were identified as especially relevant for the purpose of analysing understandings and knowledge of IPV as part of family law’s processes. The seven interviews were conducted with three women (‘Lena’, ‘Aurela’, and ‘Emma’) who all had experience of IPV and difficult divorce proceedings, and four members of the Finnish Bar Association specialised in private family law proceedings. The interviews with Lena, Aurela and Emma were selected because in these interviews, the multiple forms of IPV (and in Aurela’s case, forms of collective violence intertwined with IPV) directly affected family proceedings and the need to turn to the family justice system. The four interviews with the Members of the Bar were selected because they illustrate the difficulties and changing professional understandings of IPV in family law proceedings.

The preliminary content analysis of the data was conducted by searching for descriptions of IPV and its impact (or non-impact) on family proceedings, inspired by existing research on the impact of IPV and coercive control on, for example, the process and outcome of property settlements (Easteal et al. 2018). Given the small number of participants and the qualitative research design, the sample neither aims nor claims to be representative. Instead, the objective is to apply the lens of IPV as experienced or encountered by the research participants to examine the ways in which post-separation family relations are governed in different legal processes. While the data are limited and conclusions or generalisations cannot be drawn regarding, for example, the frequency of IPV or how courts in general deal with alleged IPV, the findings concerning IPV align with existing research. Thus, the IPV experienced by the three women took multiple forms, its intensity varied over time and continued after divorce, albeit in a different form.

The excluded subjects of family law – epistemic othering at play?

Knowledgeable subjects, economic abuse and family law

Lena, Aurela and Emma are educated women in their 40s. Each divorced from a violent husband 3–15 years ago, and they all have children. Lena and Aurela arrived in Finland as refugees, Lena as a young adult and Aurela as a child, and their transnational family ties and links to countries of origin impacted the oppression and violence they experienced as well as the support they received. For Aurela, the violence was partly collective and related to multiple factors including dysfunctional family ties, intergenerational trauma caused by political violence and persecution in the country of origin, and cultural and religious ideas about honour and inferiority of women compared to men. For Lena, violence lasted years after the divorce even though the perpetrator, her former husband, was not able to recruit members of kin or community to participate in the aggressive behaviour against Lena and failed at his attempts to activate collective forms of violence. However, the violence she experienced intensified and escalated as a result of vast cultural and legal gender inequalities in the country of origin.

Emma belongs to the ethnic majority and although she previously lived and worked abroad for long periods of time, her marriage with an ethnic majority Finn lacked any transnational elements. The violence exercised by her husband began gradually when they were dating, varied in intensity during the relationship, and finally escalated at the relationship breakdown as she tried to get her husband to move out of the family home – a solution they had agreed upon as the lease was in Emma’s name and her mother lived in the same building.

Despite being exposed to IPV at different phases of their lives, Lena, Aurela and Emma all come across as agentic and skilful in how they navigate work-family demands of their everyday lives, as well as various claims and procedures initiated by their former partners and/or members of their extended family. Their stories demonstrate strength, agency, and resilience rather than vulnerability and victimhood, although the situations they have found themselves in have often been extremely unjust, oppressive and hurtful. To view these women merely or mainly as vulnerable or non-autonomous would be to construct vulnerability and autonomy ‘in unrealistic and almost fetishized ways reinforcing their opposition’ (Diduck 2016). Rather, echoing Fineman’s (2017, p. 142) thinking, their subjectivity is defined by the inescapable vulnerability and interdependencies of all human life, while simultaneously their ability to assume situational autonomy even in oppressive circumstances (Mackenzie 2019). Still, for them, family law offered little means to build resilience against not only the separation but the hurtful relationship.

All three women describe multiple and intersecting forms of violence that they encountered, and express disappointment towards the inability of family law to recognise and effectively take into account those instances and continuums of violence. In addition to physical assaults and psychological violence, the three women described various forms of economic violence during and after the marriage. For Lena, the economic abuse started as soon as they got married:

Lena:

He started using my card and all income I received. At the time, I was still studying for a medical degree, and I was pregnant, and I received some welfare benefits, and so he said that ‘this isn’t your money’, and he took my card and used my money. I never saw his card, I was never able to use his money, but I believe that using my money for everything, he saved his own money for his own purposes.

For Aurela, the economic abuse extended beyond the marriage and was a continuation of an oppressive family structure, in which she had been placed in the position of a financial provider for the family and wider kin since childhood. When she divorced from her first, forced marriage and remarried (a man who did not belong to the community), her relatives used financial claims to punish and oppress her:

Aurela:

My [relative] messaged me through [another relative] asserting that I need to pay my share. That I need to pay in the event of divorce. And I asked what I would need to pay for. And she said for all the party and ceremony arrangements, and everything they have bought and gifts to his relatives and my relatives. And I need to pay because the marriage did not work out … That I need to pay my debts to [third relative]. But I have kept a diary since childhood and written down everything, also all dad’s debts I have paid. It’s all there.

For Emma, the financial imbalance resulted partly from the care duties she had assumed as the stay-at-home parent when the children were young, but also due to a chronic illness of the youngest child which required regular care and medical assistance:

Emma:

I was at home with the kids, and with [the youngest child], you know, so there was a lot of care work and things to juggle. My income consisted of the minimum welfare benefits, while [husband] was working and had a well-paying job. I was at home, couldn’t go anywhere, I couldn’t even do the groceries, and he wouldn’t bring the items I or the kids needed from the store, you know diapers, sanitary towels, etc. Since I had practically no income, we had agreed that he would pay the rent during the period that I was home. Then, after we had already decided that we would divorce and he would move out, and I was waiting for him to find a new apartment, he left all the rent invoices unpaid behind my back.

The lease was in Emma’s name, and she only found out that payments had not been made for months after the eviction process had already been started by the landlord and claims for the unpaid rent had proceeded to court. Luckily, she managed to borrow money and pay the rent debt, and she and the children managed to keep their home.

Family law has been criticised for being far too heavily preoccupied with property and the financial remedies provided for individuals in wealthy families (e.Pylkkänen 2007, Douglas 2018, Diduck 2018). The default setting of Finnish and Swedish family law, that everything will be shared by the ex-spouses, only serves those who have enough property to have a genuine economic interest to dispute and face the cost risk of the process. As neither Lena, Aurela nor Emma had such property, their economic losses were not addressed by the law, even when the form of violence they encountered was specifically economic violence caused and made possible by the family relationship.

For Emma, the fact that her husband left the rent unpaid without her being aware of it put her in an extremely difficult situation. However, for that amount of money, some thousands of euros, filing a legal claim felt too burdensome so she ended up suffering the loss herself. Already struggling to make ends meet, the sudden loss of thousands of euros made Emma’s financial situation dire for months. In addition, Emma had to claim child support and maintenance from her ex-husband through litigation, which further increased the level of stress she was under. The economic violence was not considered when maintenance decisions were made by the courts.

In Lena’s and Aurela’s case, the economic violence and unfounded financial claims resulted from the power imbalances in the transnational sphere, which substantive state family law completely disregarded. For Aurela, the repeated financial claims made by the members of the extended family and wider community were based on the alleged costs caused by the marriage arrangements. She was lured to travel to the home country and made to sign paperwork that she only later learned were the official marriage documents. When the marriage failed (before consummation and joint family life), the community shamed Aurela and directed various forms of aggression and stalking against her, repeated financial claims being one form of oppression. Furthermore, the stories of Lena and Aurela are illustrative of transnational violence regimes (Bredal 2020) and collective violence resting in ideas about gender roles and honour.

For Lena, economic violence emerged in many ways, one dimension of it being the husband’s attempts to blackmail her with the power imbalances embedded in interpretations of Islamic divorce laws, both in Finland and in the country of origin:

Lena:

He was always claiming that I should pay him something for divorce, so that he would give me the divorce. Sometimes it was 10,000 euros, sometimes 6,000 euros, sometimes 60,000 euros. There was always something more. There was this Islamic association in Finland, and they had done the paperwork for him, and it said that the husband claims 63,000 euros for the divorce.

Another issue for Lena, Aurela and Emma is that none of them can in fact access justice and get closure to their legal bond to their former spouses even though they have obtained divorce. In Finnish law, the divorce and the division of property are separate matters. As the three women have not been able to initiate distribution proceedings, their marital assets have not been divided and claims between the former spouses are possible, in theory, even years after the divorce. This could potentially come up, for example, if one of the former spouses were to remarry and undergo another divorce, or regarding inheritance issues. The banks and tax authorities, for example, will require a signed document stating that a distribution was made after the divorce, even when the divorce happened decades ago.

Aurela:

I have for years been haunted by this thought … I have it like all the time … That I should take care of this one thing, for like the deed of estate inventory … like even though we have divorced, if I die, will somebody come? Because no distribution of marital assets has been done. It’s this little ghost haunting me, that if I die, will they [her current husband and their children] have to deal with some stranger, somebody from [the country of origin] or [another country]? Since the distribution of marital assets has not been done, will this house go to some stranger?

While the law in reality is accessible to only those with financial means and wealth, those without such wealth are also required to have the same documents, the contract that proves that no claims can be asserted among the former partners – a prime example of the power of documents in the creation and circulation of modern forms of knowledge, expertise, and governance (Riles 2006). The disciplinary apparatus of family thus keeps Lena, Aurela and Emma chained to the law, while in reality they are excluded from the law’s remedies as poor women who need to find solutions to their issues outside the law. And while the law claims to focus on financial remedies, it fails those whose losses do not result from a marital bond as ideally understood by the law, that is, assets that can be shared in the event of divorce. This can be seen as a form of epistemic othering.

The inability of family law to distribute justice to subjects who are not in an equal and autonomous positions is evident with wealthier families, too. Also in these cases, economic violence may be disguised as economic rationality and go unrecognised by the law. Despite the lack of research and literature on economic violence in family law disputes, the phenomenon is recognised by the practicing Members of the Finnish Bar. Economic violence can manifest in various forms. For instance, it may involve attempts to prolong litigation by withholding information or concealing property:

Lawyer 1:

In difficult and conflicted divorces you often see forms of economic violence … In one of the most peculiar distribution procedures that I have encountered, the husband was trying to take advantage of the fact the wife had no financial means to cover for the costs of litigation. I worked for years without a fee at my own risk, and only received payment when the court decided in favour of the wife. We had discovered that he was hiding property abroad.

However, some of the Members of the Bar interviewed seem to struggle with making the concept of economic violence useful and relevant to their legal training and professional role:

Lawyer 2:

I still haven’t quite gotten my head around the fact that it [forms of economic violence discussed previously during the interview] is violence.

Interviewer:

Do you mean that it is too broad an understanding of violence?

Lawyer 2:

No, no. I just mean that I haven’t quite understood it yet, and it takes time to sink in. But it is important, and I will get there.

Family law and welfare governmentality go hand in hand and nurture particular ideas of independent and autonomous subjects who have property and whose financial relations are not affected by, for example, caring responsibilities. If these subjects fail to correspond to rationalities expressed by law, for example because of their restricted financial means, their issues fall outside family law’s conceptual grid. It simply is not possible to approach them as legal issues, and consequently, these subjects become the epistemic others of family law-as-knowledge.

Mediation in child custody cases

In principle, IPV is supposed to be an obstacle for mediation, but this restriction does not always work in practice, and sometimes even cases where there is evidence of violence will proceed to mediation. Emma, for example, participated in mediation despite the violence and power imbalance pertinent to the relationship. Eventually, mediation had to cease because of Emma’s ex-husband’s aggressive behaviour and the process continued as a normal trial. Violence that had happened during the marriage was not brought up in mediation. According to Lawyer 3, violence frequently is overlooked or becomes invisible in mediation, which can sometimes feel frustrating even for the lawyer involved:

Lawyer 3:

Basically, even physical violence is dismissed, its impact is minimised to great extent… which of course means that psychological violence is completely bypassed, the idea being that ‘it’s not worth fighting for and you should try and keep the focus on the child’. Even though the child probably suffers even more from the psychological or economic violence, which impact everyday life all the time, for example when child support and maintenance needs to be collected through the enforcement authorities.

According to her, the professionals emphasise and highlight any ability of the parents to agree on some issues, even when there has been severe, documented and continuous violence in the family:

Lawyer 3:

There can be like very serious violence and still they ask about the parents’ ability to agree over day care or school or language choices for the child. And these kinds of statements, that ‘parents do not disagree on where the child lives’, for example, render the whole spectrum of violence invisible, even if there are several investigations and police have been called to intervene several times.

All interviewed lawyers expressed their dissatisfaction with the varying quality of the reports produced by the social workers, as well as with the vast variance with the professional abilities of the experts assigned to assist mediation in child cases.

Lawyer 4:

In general I would say that I am quite happy with the mediation process, but so much depends on the person … [On reports produced by social workers on the living conditions of the child:] … Sometimes you can’t do anything with them, they are completely useless … .And yes, only the physical and sexual forms of violence are recognised in custody cases. I can have 30 text messages that clearly express [psychological] violence but they are of no legal relevance.

Sometimes victims of IPV are tacitly pressured to opt for court-assisted mediation, even if they have regarded that form of process unsuitable. This can happen, for example, if they are repeatedly encouraged to choose mediation:

Lawyer 3:

And when court-assisted mediation has been suggested by the court personnel several times, surely the person who has experienced violence starts to think that there must be something wrong with me if I don’t choose that and often the person does not even want to be in the same room with the perpetrator, because that triggers a trauma reaction and she just wants to get out and will agree to anything just to get away … And then on the opposite side you have someone who is only happy to engage as much as possible and spend eight hours or more discussing the conflict … So in my view people are being pressured to participate in mediation and I have even had to write to the court on behalf of a client to explain that this offer [mediation] has now been answered, and let’s not bring this up anymore.

In the opinion of Lawyer 3, a further problem is that once the mediation process has begun, the anticipation is that the parties are suitable for mediation, and no further evaluations are made:

Lawyer 3:

The assumption is that the starting point is two people who can be facilitated to have a conversation where they will find a common understanding regarding the best interests of their child … so [facilitative] mediation is good for those for whom it works, but the problem is that we have also cases that do not belong in mediation, and when they are there we are not able to observe that this process does not suit a family … And that is a whole different discussion concerning what to do if the agreement negotiated in the mediation is one that you cannot live with.

Interviewer:

So is your experience that once people enter mediation, the pre-requisites of having a successful negotiation [no violence, no substance use problem, no personality disorder, etc.] are not checked anymore?

Lawyer 3:

Yes, they are not. It’s like: Now we shall direct our gaze to the future, we understand that you want to talk about the past, but you have this little Simo-Petteri right here. And you will have him until the end of your days, and you should, as parents, agree about his life. You just think of little Simo-Petteri, imagine him sitting here on the table, and remember that this is all about him. He is only five years old, and you will have 13 more years to take care of him and reach decisions concerning him. And then the person who is already suffering post-traumatic symptoms is made to feel guilty [for being difficult].

While mediation no doubt serves most families well, a strong emphasis and tacit pressure to pursue mediation can indicate inadequate recognition of violence and its effects. Furthermore, the narrative expressed by Lawyer 3 expresses a specific welfare governmentality that shapes individuals into obedient and negotiatory subjects, who can be taught to resolve their conflicts in a harmonious manner and thus govern themselves. Rather than properly dealing with the violence that has occurred, the violence is made invisible as parties are asked to put the past behind them and take a fresh start in the best interests of the child.

However, when the perpetrator refuses to follow the negotiated contract and initiates proceedings one after another, the law is toothless to put a stop to litigation abuse (Campbell 2017). Lena’s ex-husband initiated custody proceedings repeatedly, forcing Lena and her child to live in a constant litigation mode. He was unemployed and entitled to legal aid while Lena, who works as a medical professional, had to pay the costs herself. This illustrates the significant expectations of the law regarding the parent who resides with the child in terms of their duty to maintain and support the child’s relationship with the other parent. These expectations apply even in cases where intimate partner violence (IPV) has been documented.

In Lena’s case, her duty to support the contact between the child and the father only ended when he abducted the child to the country of origin in the Middle East and North Africa region. After a long and desperate battle, having mobilised all her networks in the country of origin to locate and persuade the ex-husband to return the child, Lena finally got the child back and the father’s custody and visitation rights were removed. One of the aims of the abduction, in addition to that of hurting Lena, was the ex-husband’s attempt to blackmail large sums of money from Lena:

Lena:

When [child] was still there, [ex-husband] said that I have to pay him 200,000 euros. And when I asked how I am supposed to come up with that kind of money, he said that my dad should sell his house. It is a nice house, located on the main street, and he must have thought that the child means so much to me and I’m so worried, and he thought that I’m not strong, that I would give everything to him. But of course I don’t have the right to say to my father that he should go and sell everything and give him the money. And how would I have known that he would return the child if I gave him money? So I didn’t give him what he wanted.

Lena’s story reflects various intersecting forms of violence, including economic violence, physical violence, psychological violence and, to some extent, honour-related violence. Lena’s and Aurela’s experiences of violence, including collective and honour-related violence (Lidman and Hong 2018) in Aurela’s case, demonstrate the utilisation of transnational space and relations as tools of oppression. The transnational aspects of their lives and relationships contribute to the epistemic othering they are subjected to in family law.

Concluding discussion

This article addressed the questions prevalent in debates about the place of law in the family justice system through examining welfare governmentality in family law, especially from a Finnish (and more generally Nordic) perspective. Drawing on research literature and interview data, the article applied IPV as a lens to study the assemblages of governance in the field of family justice. Through this lens it became visible how subjects of family law are differently positioned, formed, and assembled. Additionally, the analysis highlights how the domain of family justice is constituted as governable in a way that marginalises specific types of subjects. This process of epistemic othering occurs during various interactions that victims of IPV have with family law.

The problem particular to contemporary forms of welfare governance is that family law-as-knowledge fails to recognise violence and the consequent losses suffered by the victims as legally relevant in the context of both financial settlements and child custody and access. First, within welfare governmentality and for family law-as-knowledge, it is crucial to conceptually separate financial rights and obligations from caring responsibilities. However, when it comes to financial relations, the family justice system faces challenges in addressing IPV, even in its financial manifestation as economic violence. The claims and disputes of the research participants fell outside family law’s conceptual grid, even when the research participants remained entangled in on-going legal proceedings.

Secondly, in the realm of care, the child’s interests take centre stage, guided by the intermittent focus of legal scrutiny. Unfortunately, this approach tends to overlook the gendered division of responsibilities related to relationship work and caregiving. This form of epistemic othering is particularly gender-biased. In custody and access cases it is frequently mothers who bear the full responsibility for safeguarding their child’s interests. Altman (2018) has critically examined the practice of deriving rights and obligations solely from children’s rights and their best interests, neglecting the equal significance of mothers’ and children’s physical and psychological well-being. Lawyer 3 expressed frustration with the prevailing expectation that victims of IPV should shoulder the burden of maintaining the child’s relationship with the violent parent, often at the expense of their own well-being. She also pointed out that, in fact, this is hardly in the best interest of the child.

Third, as welfare governmentality is about governing a population, relations or social spheres of the subjects that extend the borders of the national community and the welfare state are regarded exceptional and dealt with under specific provisions, such as rules on child abduction. This orientation of the system towards the national community further hinders the recognition of violence when it assumes collective and transnational forms.

The conclusion of the analysis is not that welfare governmentality, as an expression of biopower, would be bad per se, or that we should struggle to free law from governmentality by either abandoning law altogether in favour of alternative measures or by strengthening the law’s regulative force or hold on family relationships. Rather, the point is that we need to be aware, to follow McCormick (2020), of the variable set of methods and rationalities at play that make it possible to orient the lives of a particular set of people in a particular context towards particular ends. An effective technique here is to divide et impera through law-as-knowledge, for example to divide the issues emerging at divorce or relationship break-down into episodes and categories that contribute to the production of governable subjects.

The knowledgeable subject that family law produces seems to be simultaneously a rational, economic agent and self-sacrificing parent devoted to serving the child. The subject remains autonomous as long as they fit the images imposed on them, but their autonomy is that of a liberal legal subject. This seems to be in line with previous studies that have highlighted how neoliberal rationalities are ‘infused with a gendered discourse and expectations of self-regulation, individual responsibility, and compliance in a welfare-state setting’ (Lauri 2019, p. 114).

Within the scope of one article, it is not possible to rethink the family justice system altogether, and the ‘Nordic paradox’ requires further research especially in the context of family law. Relevant questions worthy of more research are: How might a family justice system look if it took seriously the high rates of IPV prevalent in Nordic societies and began its inquiries by attempting to recognise and address it? And to what extent are parents, even those who experience continuous threat or suffer, for example, from post-traumatic stress symptoms due to IPV, required to maintain contact with the perpetrator merely to serve the best interests of the child?

Acknowledgments

I am deeply grateful to the research participants who shared their experiences.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Funding

This work was supported by the research project ‘Children Abroad: A Relational Analysis of Finnish Child Protection and Welfare in Transnational Contexts [CARELA]’, funded by the Finnish Research Council 2020-2024, decision no 33055; the Joint Committee for Nordic research councils in the Humanities and Social Sciences (NOS-HS exploratory workshop series: Transnational Childhoods, Transnational Rights); and the research consortium ‘SUOJATIE - Transnational Child Protection: Knowledge and Service Paths’ funded by the Finnish Ministry of Social Affairs and Health, Decision 14925/2022.