Key Concepts in Succession Law Key Concepts in Succession Law Explore the fundamental concepts and principles of the Law of Successions. Click on any section below to learn more. 🏛️ General Considerations & Patrimony Definition of succession and the concept of patrimony. ⏳ Opening of Succession Time and place where succession begins. 💎 Inheritable Property Scope of the hereditary estate, including corporeal and incorporeal rights. 👤 Capacity to Inherit Who has the legal right to inherit. 🚫 Unworthiness to Succeed Grounds...
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.[1] 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.'[2]
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.[3]
‘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.’6
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.[4]
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.’[5]
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.’[6] 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.[7] 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.'[8]
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.[9]
Hence, the state protects and regulates the family by using its legislative power.
[1] Planiol, Vol. 1 part 1, 384
[2] Murdok, Social Structure, (problems of the Family, 162
[3] problems of the Family, 162 6 Murdok, 163
[4] Murdok 162-63.
[5] (planiol, 385)
[6] (planiol, 386
[7] (murdok, 76)
[8] (Marriage laws, 4 Albert Jackobs)
[9] (Future of family, 10)
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