28 March 2014 Written by  Aschalew Ashagrie and Martha Belete

Definition and Sources of Family Law

There is no generally accepted definition of family law. ‘Family law is usually seen as the law governing the relationship between children and parents, and between adults in close emotional relationships’. Many areas of law can have an impact on family life: tax laws, immigration laws as well as insurance laws have great connection with family law. As Dewar noted:

Most legal disciplines would claim to possess at least one of two forms of coherence. The first stems from the organizing legal concept from which the discipline in question derives its name: ‘contract’, ‘negligence’, ‘trust’. The second relates to the set of ‘real world’ problems with which the discipline is concerned: labor relations, housing, land use, commerce, government and administration. At first glance, it would seem that the area of study designated as family law possesses a coherence of the second sort. After all, the term ‘family’ has in itself no legal significance (although attempts are often made to define the family for legal purposes); and the subject usually comprises a mixed bag of legal rules and concepts, such as those concerned with marriage, divorce, parents and children and property, each possessing a different historical origin and pattern of development. The only justification for studying them together is that they all in some way concern the family, a social phenomenon constituted outside the categories of the law. For this reason, family law has grown over the years to include parts of other legal disciplines of relevance to the family, such as property, criminal and housing law, taxation, social security, evidence and procedure; as well as incorporating legal aspects of phenomena thought to have a ‘family’ connection, such as domestic violence, child abuse, marital rape, surrogacy, homelessness and pensions (to name a few).

In spite of this, can it still be said that family law is a coherent area of study? It has already been suggested that it cannot satisfy the first criterion of coherence mentioned above; and if it were to satisfy the second, the subject would be a good deal broader than it is now, probably unmanageable so. For if we were really to take the family as the starting point, and were to consider all areas of law relevant to the family, we would want to include much that is not currently considered part of the subject. For example, we might wish to consider the welfare state, the fiscal system and the labor market in more detail than is customary; and we may also want to consider the areas of education and health services. These are all areas of relevance to families and in which the family is encountered as a necessary relay in the implementation of programs of social action. But family law has not been interpreted as broadly as this. Instead, it focuses primarily on the more traditional question of status and is thus primarily concerned with the means by which status is conferred, such as marriage, parenthood and cohabitation, and on the means by which status may alter, such as divorce or state action to remove children from parents. More recently, it has become concerned with the problem of individuals abused by members of their own family.    

[Excerpts from: John Dewar, Law and the Family, 2nd ed, Butterworths, London, 1992, p.1-2]

 

Rationale Behind Protection and Regulation of the Family

There are various reasons for regulating and protecting the family through the adoption of legislative interventions. Before looking at these reasons it is necessary to define a family. The legal definition of family is not a unitary concept. However, we can find some suggested definitions.

Planiol defines a family as a group of persons who are united by marriage, by filiation or even, but exceptionally, by adoption. Another more or less similar definition is given by Murdok. In that definition, family is considered as ' a social group characterized by common residence, economic cooperation, and reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved sexual relationship, and one and more children, own or adopted, of the sexually cohabiting adults.'

From the definitions given above, one can categorize the family into nuclear and extended family. The first and basic type of family organization is the nuclear family.

The nuclear family basically consists of a married man and woman with their offspring. ‘The nuclear family is a universal human social grouping. Either as the sole prevailing form of the family or as the basic unit from which more complex familial forms are compounded, it existed as a distinct and strongly functional group in every known society.’

An extended family, on the other hand, consists of two or more nuclear families affiliated through an extension of the parent-child relationship rather than of the husband-wife relationship, i.e, by joining the nuclear family of a married adult to that of his parents.

This way of defining the family has been criticized recently by many, especially by authors in the western society, for its lack of accommodating the changes in the circumstances and societal values. As will be seen shortly, establishing a family relationship will have its own effects, like for instances on issues of child custody, maintenance and other rights and obligations. Defining family in the above manner restricts persons engaged in nontraditional relationships from having those rights and obligations. (Harvard Law Review, vol 104, p 1642-1659)

The family is a very important constitutive part of a society. It has natural, economic as well as social importance. ‘The state of the weakness and of destitution in which the child is born, the amount and length of care he needs, impose upon his parents duties which are not fulfilled in one day and which create the solid foundation of all of the family relation.’ 

The family is the nucleus of the society, and hence much depends on its safety and security. As Planiol correctly notes, ‘the small family group is the most essential element of all those which compose the great agglomerations of men which are called nations. The family is the irreducible nucleus. And the whole is worth what it itself is worth. When it is impaired or dissolved, all the rest crumbles.’ Though the family may contain only few people, the impact that this unit has on the whole society is great. Factors affecting a single family will later on have the effect of affecting the whole society.

Due to the fact that the marital status as well as the family entails community rights and obligations far beyond those implicit in the ordinary civil contract, it is conceded that the states may prescribe the conditions on which the status may be assumed. As a result, marriage laws are subject to the control of the state government; and the interest of the state in the marriage of its citizens has long been recognized. 'The state, it is said, is a party to every marriage. This means simply that the state is interested in the well ordered regulation of the family organization of the persons within its borders.'

The state uses different means to regulate and control the formation as well as the effects of forming a family. One basic means of doing so is through legislations. Laws have various functions within a state.

'Laws do more than distribute rights, responsibilities, and punishments. Laws help to shape the public meanings of important institutions, including marriage and family. The best interdisciplinary studies of institutions conclude that social institutions are shaped and constituted by their shared public meanings. According to Nobel Prize winner Douglass North, institutions perform three unique tasks. They establish public norms or rules of the game that frame a particular domain of human life. They broadcast these shared meanings to society. Finally, they shape social conduct and relationships through these authoritative norms.

Hence, the state protects and regulates the family by using its legislative power.

 

Sources of Family Relationships

 

There are three sources of family relationships namely, marriage, filiation and adoption. The status of the persons as well as the rights and obligations of the persons differs with the difference in the source of the relationship. This section deals with the different sources of family relationships and the effects of the relationships.

 

Relationship by consanguinity

Relationship by consanguinity results from the birth. It is ‘the tie which exists between two persons, such as the son and the father, the grandson and the grandfather; or those who descend from a common ancestor, such as two brothers, or two cousins.’        Hence, relationship by consanguinity is a natural fact which is derived from birth.

Excerpts from Planiol pages 387-389

The series of relatives who descend from each other form what is called a line. It is a direct relationship: it is represented by a straight line going from one relative to the other, no matter how many intermediaries there may be. As to the relationship which unites two relatives descending from a common ancestor, it is called collateral relationship: its graphic relationship is formed by an angle. The two relatives occupy the inferior extremity of the two sides and the common author is at the top. Two collateral relatives are thus not in the same line; they form part of two different lines which started from the common author, who represents the point where the junction is made; the two lines travel side by side, which fact explains the word 'collateral'; each of the two relatives is, in regard to the other, in a line parallel to his own, collateralis. …

In each line relationship is counted by degrees, i.e. by generation. So the son and the father are related in the first degree; the grandson and the grandfather in the second degree, and so on.

 

Method of calculation of relatives in the direct line is easy.: there are as many degrees as there are generations going from one relative to the other.

When it comes to collateral relationship there are two ways of computation. The one used by the civil law count the number of generations in the two lines by departing from the common ancestors and by adding the two series of degrees. Thus, two brothers are related in the second degree (one generation in each branch); an uncle and his nephew are related in the third degree….in the Canon law another way is used to compute the degrees: the generations are counted only on one side. When the two lines are equal, either may be taken. When they are not equal, the longest one of the two is chosen and no attention is paid to the other. The result of this Canonical computation is that two first cousins are related in the second degree, while according to the civilian computation they are related in the fourth degree…..  

To reach to the degree of relationship between persons related in the direct line, we simply count the number of lines between them. Here, the grandfather and the grandchild are related in the third degree in the direct line.

In calculating the degree of relationship in the collateral line, there are two way, which will lead to different results.

When we look into the Ethiopian Civil Code of 1960, it does not govern how the relationship in the direct line is to be computed. Article 551 tries to give some highlight on how the computation of relationship in the direct line is to be conducted. The Amharic version of the Code states as follows 

የስጋ ዝምድና አቆጣጠር የጋራ ከሆነው የግንድ ወላጅ የዝምድና ደረጃ ጀምሮ ግራና ቀኝ ካለው ትውልድ መስመር እስከ ሰባት ትውልድ ድረስ ነው፡፡

However, this article only tells us that calculation of degree of relationship in consanguial line is to be done by taking the common ancestor as a bench mark.

     

Relationship by Affinity

Relationship by affinity is created as a result of marriage. 'Relatives through marriage are persons who are not relatives, but which join the family by means of a marriage.' When a marriage is concluded, the relationship is formed between one of the spouses with the blood relatives of the other spouse. The woman who marries becomes the daughter in law (by marriage) of the father and mother of the husband and the husband becomes the son in law of the mother and father of the wife. 'The two spouses are considered as being only one, so that all the relationships of the one become, by the effects of marriage, common to the other.'  One thing which needs to be noted here is the fact that the relationship created does not go beyond this. That means, a relationship does not exist between the relatives of one spouse with the relatives of the other spouse.

Relationship by Adoption

Relationship by adoption is created as a result of a special contract between the adopter and the original families of the adopted child. Unlike blood relationship, it is a fictitious relationship which resulted from the agreement of the parties to the adoption contract. However, it is also an imitation of the real relationship.

 

Effect of Family Relationship

 

There are various effects which resulted from the relationship. Relationships give rights; they also create obligations, and also carry incapacities. Hence, we can talk about three effects of a relationship: creation of rights, creation of obligations and making the related persons incapable of performing some juridical acts.

 

Rights emanating from a relationship:- relationship results in the right of the relatives to take the estate of the deceased relative. That is to say, a right of succession is one of the effects of a family relationship. Secondly, there is also the right of destitute relatives to get maintenance from the other relatives. Parents will also have a right over the person and the estate of their children. For instance, article 198 of the RFC provides that the obligation to supply maintenance exists between ascendants and descendants and also between persons who are related by affinity in the direct line.

 

 

 

Obligations emanating from relationship: there are also various obligations which will subsist among the relatives. The first obligation is that of alimony. Relatives have the obligation to provide alimony for the destitute relatives who cannot have their own means of income. Moreover, there is also the duty on the parents to take custody and raise their children. In this regard, article 219 of the RFC puts an obligation on the father and mother of the minor child to be the joint guardian and tutors during the life time of their marriage. Taking custody of children also involves making decisions in respect of the health, education as well as social contacts of the child. Articles 255 and the following articles of the RFC provide by way of obligation on the parents to take care of the health, residence, education as well as social contact of the minor child. On top of this, there may be property inherited by the child. The parents or in their absence, the ascendants will have the obligation to administer the property on behalf of the child.

 

Apart from the above mentioned duties and rights, relationships may also result in incapacities of the persons involved. The law prohibits marriage between close relatives. The incapacity to marry is one type of incapacity resulting from relationship. Under 32 of the RFC as well as the regional family codes relationship is provided as one essential condition for the conclusion of marriage.

 

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