Family law, body of law regulating family relationships, including marriage and divorce, the treatment of children, and related economic matters.
In the past, family law was closely connected with the law of property and succession (see property law), and, judging from the records available, it must have originated principally in the economic and property questions created by the transfer of a female from her father’s family to the power and guardianship of her husband. Even with regard to the relationship between parent and child, legal concepts such as guardianship, custody, and legitimacy were associated with family power structures and family economic interests. Family law also traditionally has to do with matters of personal status—for example, the question of whether a person is to be considered married or single, legitimate or illegitimate—though the incidents and importance of these distinctions often derive from the law of property.
Family law shares an interest in certain social issues with other areas of law, including criminal law. For example, one issue that has received considerable attention since the late 20th century is the very difficult problem of violence within the family, which may take the form of physical violence by one adult member on another or by an adult on a child or some other violent or abusive conduct within a family circle. In serious cases the only real solution may be to terminate cohabitation or to remove an abused child from the family unit into some form of public or foster custody.
This article is not a treatise on the family laws of the world (which would require at least a volume) but a general survey of the common legal problems associated with the family.
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Extended family, Georgia, U.S.
family: Family law
Family law varies from culture to culture, but in its broadest application it defines the legal relationships among family members as well as the relationships between families and society at large. Some of the important questions dealt with in family law include the…
A family group has a certain internal structure as well as relationships between itself and third parties. Family groups in some societies have tended to be complex, as, for example, the Roman paterfamilial group, the Chinese upper-class family, the Indian joint family, the samurai family in Japan, and many customary family structures in Africa. The family may be a part of a larger group such as the tribe or clan.
The two-parent family
At present the dominant form of the family group consists of two spouses and the children they have produced or adopted. The law, therefore, is concerned mainly with the rights of the couple and their children and the duties of the couple to the children and to each other. In a strictly monogamous society, for example, the law will forbid a person to be married to more than one other person at the same time, while in other societies it will regulate the number of wives a man may simultaneously have (as Islamic law [Sharīʾah] does).
Traditionally, family law has not concerned itself much with unions that are not commenced by legal marriage, though some systems of law have permitted the recognition of a “natural” child by a father for purposes such as inheritance and support. More recently, the family law of several European countries and of some jurisdictions in the United States was amended to recognize civil unions or domestic partnerships, which created many of the legal incidents of marriage for same-sex couples (see also same-sex marriage).
The one-parent family
Since the 1970s, one-parent families have acquired an importance not adequately reflected in traditional law. It may be necessary to adapt the law to a greater extent to the needs of one-parent families in areas such as the organization of family and child-welfare services and the legal and administrative machinery for family support, employment assistance, day nurseries, and the like. The head of a single-parent household may have difficulty affording the high cost of child care while working or training, especially on a modest or low income.
Legal consequences of marriage
Two persons might produce the economic incidents of marriage by executing appropriate contracts or settlements. In some legal systems, a contract in conventional form is the core of the constitution of marriage. The contract may be complex, with a variety of clauses, as in Islamic law. In most countries today, however, the legal documentation of a marriage is mainly a registration of the event. Basically, then, marriage in the legal sense is the implied creation of certain rights or obligations such as maintenance, marital property and succession rights, and the custody of minor children.
In modern systems, the parties to a marriage can usually create the economic incidents of the marriage by a separate agreement. In some early legal systems and in present systems in which customary family law pertains, there is little choice as to the economic incidents of marriage because these are fixed by custom. In legal systems that allow substantial scope for personal independence, the spouses can take up a position of their own as to the economic basis of their family group by means of a marriage contract or a will.
One feature that distinguishes marriage from a simple contract is that, in many countries, the parties cannot release themselves by mutual agreement. But some legislation in North America and western Europe comes close to permitting this; the grounds of divorce have been so widened that the marriage can be terminated, for example, after a period of separation (see below Divorce).
It is almost universally the rule that natural or adopting parents have a primary duty to maintain their minor children. In the great majority of cases, the care and upbringing of a child belongs to its biological parents automatically, without regard to their qualification or suitability. No doubt this arrangement was due originally to its convenience and to lack of alternatives, though examples may be found of groups rearing their children in common (usually in tribal societies). The parental system also has been justified on religious grounds.
By the common law of England, an “illegitimate” child was a filius nullius (without relatives). There may have been two main reasons for this former, discriminatory attitude. First, certain unions between the sexes were designated as lawful marriages, and a man of importance, agreeing to his daughter’s marriage, would insist on her having the status of legal wife. Second, paternity, in the legal sense, was easier to establish in the case of a lawful marriage than in its absence. The common law of England, for example, presumes in favour of legitimacy when the child is born in lawful wedlock, even if the biological facts may be otherwise. Civil law systems—those derived from Roman law—have been less absolute than the common law; they provide ways of legitimating a child, such as through subsequent marriage of the parents or through an act of recognition by the father. Modern statute law has brought the positions in different systems closer together and removed some of the worst features of the doctrine of legitimacy. Legitimacy is a concept of diminishing importance in modern law, and even countries that still retain it have usually modified it. They have done so by basing support obligations on parentage rather than on a legally valid marriage and by giving rights of intestate succession to children born out of wedlock. By the legal devices of legitimation and adoption and by other means, the difference between the legal status of a legitimate and that of an illegitimate child has been narrowed.
The ordinary legal principle is that the consent of a natural parent (or guardian) is required for an adoption order by a court. This consent may be dispensed with if the natural parent or guardian cannot be found or has proved to be uninterested or cruel.
Adoption in the older legal systems (as in Roman law) was treated mainly in terms of the law of inheritance and succession. It provided a way of introducing an outsider into a family group and so bringing him within the scope of the succession rules. In modern systems, succession rights and other obligations and rights in cases of adoption are usually treated by analogy with those of unadopted children, and in some systems there is an explicit equation with such children.
The rapid development of education in the 19th and 20th centuries dramatically affected the family and the rights and obligations of family members. Until the latter part of the 19th century, even in highly developed countries, the organized education of children in the poorer classes tended to be casual or nil. Subsequently, the powers of parents to determine the educational upbringing of their children declined before the advance of public education and the complex legislation and financing on which it rested, though alternative systems of religious and other private education continued to exist for families who could afford them. In the late 20th century, increasing numbers of families in the United States and elsewhere chose to educate their children at home. Today the pattern in most of the industrialized world is compulsory education up to the late teens with opportunities for higher education into the early 20s and perhaps later.