Family Law: Marriage, Parentage, Adoption & Parental Rights

Family Law and Kinship

Family law governs relationships, marriages, partnerships and affiliated kinship and family relationship concerns. It can be established by blood or by affinity.

Kinship may be lineal (direct) or collateral (indirect). Collateral kinship links individuals who share a common parentage. Degrees of kinship are measured between relatives. For some relationships there is a first degree. For legal effects, kinship is relevant for inheritance and maintenance (support).

Maintenance
Maintenance refers to obligations of support among relatives. It covers the economic obligation to provide food and support when required. Maintenance obligations can arise between direct line relatives and, in certain cases, among siblings.

Marriage: Forms, Consent and Nullity

Marriage can be civil or religious and exists in a plurality of forms (including subsidiary or elective forms). The essential element of marriage is consent; if consent was not given freely, the marriage may be challenged.

Since 1998, unmarried couples may receive legal recognition when they meet certain conditions: for example, if they live together for two years, have children together, or establish their relationship by notarial deed. The exact regulation depends on the applicable law and formalities.

The nullity of marriage is, for example, regulated in art. 73 of the Civil Code when consent was not given freely.

The putative marriage: when a marriage is void, the effects produced by that marriage may nevertheless be recognized for the children and for the spouse acting in good faith.

Separation, Divorce and Agreements

Separation is the disruption of cohabitation while the conjugal bond remains. Divorce is the dissolution of marriage.

Mutual agreement proceedings are submitted by the parties together, with presentation of a proposed regulatory agreement that resolves the effects of the separation or divorce and sets measures regarding custody, maintenance and property.

If the parties do not agree, they may pursue a contentious route, where the judge decides outstanding issues. Some measures can be ordered on an emergency basis before full proceedings (for example, in cases of domestic violence). In such situations there are procedural steps that must be followed; in some jurisdictions a complaint or application must be filed within 30 days of the relevant act or approval, according to local procedural rules.

Parentage and Parental Rights

Parentage and parental rights concern the legal recognition of family relationships in the direct line and the rights and duties that derive from that relationship.

Definition and Types of Parentage

Paternity is the legal recognition of a family relationship in the direct line (first degree). Parentage may be:

• Biological (by nature): filiation with a biological or genetic basis.
• Marital: where the parents are married.
• Extramarital: where the parents are not married.
• Adoptive: a legal link established by adoption.

The law often applies a marital presumption of paternity: the mother is established by birth, and the husband of the mother is commonly presumed to be the father. For unmarried children, paternity may be established by recognition or by a genetic (DNA) test when required. DNA testing is a commonly used method to determine biological parentage.

Parentage determines legal consequences such as surnames, inheritance rights and obligations of maintenance (support).

Filiation by Adoption

Filiation by adoption is legal paternity/maternity determined by a court decision. Adoptive filiation parallels biological descent for legal purposes: adopted children are equal to biological children in the eyes of the law.

Requirements typically include a complete application file and procedural acts. Common statutory requirements may include a minimum age for the adopter (for example, at least 25 years old) and an age difference between adopter and adoptee (for example, at least 14 years), depending on jurisdiction.

Adoption may be requested by one person or by spouses/partners jointly; if more than one person seeks adoption (for example, a married couple or partners), the law provides specific rules for joint adoption and consent.

Parental Authority

Parental authority is the set of rights and duties between parents and their minor children and is addressed in statutory provisions (for example, articles 154 and following of the Civil Code in some jurisdictions).

Parental authority includes the duty to care for and represent the child, to administer the child's property and to provide a home and education. This authority is lost when children reach the age of majority or by emancipation. Emancipation confers certain capacities on the minor; when a child is emancipated, parental authority is modified accordingly.

Parents act as legal representatives and administrators for their minor children, exercising responsibility for the child's welfare, education and protection.