Familial Juridical Relations:
A Précis
I Types of Family Association
The law of Louisiana, like that of many other civil-law jurisdictions, recognizes three different kinds of familial association, that is to say, different ways in which individuals may be regarded as "related to" or "kin of" each other. Each of these different kinds of familial association has somewhat different juridical effects.
AConsanguinity
1.Explication
The term "consanquinity," as its etymology suggests[1], denotes a "relationship by blood" or, if one prefers a more modern and scientifically accurate formulation, a bio-genetic relationship. Thus, two persons are consanguinous relatives if and only if one is among the biological progeny of the other or both are the biological progeny of a common ancestor.
2.Varieties: Of "Lines" of Relationship
Consanguinous relationships are usually described in terms of "lines." These "lines" can be classified in several different ways.
2.1Direct Line v. Collateral Line
One can, first of all, divide up consanguinous relationships into those of the "direct line" and those of the "collateral line."
2.1.1 Direct Line: Descendants & Ascendants
The "direct line" is that series of relatives who, as among each other, are progenitors and progeny, that is, grandparents, parents, children, grandchildren, etc. Each person in this direct line is, at once, the "ascendant" of those "below" him (his descendants) and the "descendant" of those "above" him (his ascendants).
2.1.2 Collateral Line: Collaterals
The "collateral line" is that series of relatives who, though not progenitors and progeny of each other, are the progeny of a common progenitor. Examples include aunt or uncle and niece or nephew and cousins. "Two collateral relatives are thus not in the same [direct] line; they form part of two different [direct] lines that started from the common ancestor, who represents the point where the junction is made; the two lines travel side by side, which fact explains the word 'collateral' . . ."[2]
2.2 Paternal Line v. Maternal Line
Consanguinous relationships can also be divided into those of the "paternal" and "maternal" lines. The "paternal line" consists of all those persons to whom one is related through one's father, e.g., one's paternal grandparents, paternal aunts and uncles, paternal cousins; the "maternal line," all those persons to whom one is related through one's mother, e.g., one's maternal grandparents, maternal aunts and uncles, maternal cousins.
3. Proximity of Relationship
For any number of reasons, it is often important to determine the "degree" or, as the Civil Code calls it "propinquity," of relationship between two persons in one line or another. According to CC art. 900, "[t]he propinquity of consanguinity is established by the number of generations" between the two persons, "and each generation is called a degree." How these generations are to be counted varies from one kind of line to the other.
In the direct line, "the number of degrees is equal to the number of generations between" the two relatives.[3] Thus, parent and child are related in the first degree and grandparent and grandchild in the second degree.
Counting degrees in the collateral line is a bit more complicated. In that line, "the number of degrees is equal to the number of generations between" one relative "and the common ancestor, plus the number of generations between the common ancestor" and the other relative.[4] Thus, siblings are related in the second degree; aunt and nephew in the third degree; and first cousins in the fourth degree.
4 Effects
Consanguinity produces a number of juridical effects, the most important of which are the following. First, consanguinous relatives have the right to inherit from each other (the right of “succession”) in intestate successions (that is, when the deceased does not dispose of his property by testament).[5] Second, consanguinous relatives in the direct line owe each other reciprocal “alimentary” duties, that is, duties of financial or material support in times of need. The duty is limited to the provision of “necessities” and arises only if the “needy” ascendant or descendant, as the case might be, cannot “obtain these necessities by other means.”[6] Third, consanguinous relatives are among those special relatives who, in “extraordinary circumstances,” may obtain visitation rights to a minor child in the aftermath of a post-divorce custody award.[7]
BAdoption
Adoptive relations, obviously enough, are those established by means of the institution of “adoption.” Adoption is a juridical act whereby one person, called the parent, "creat[es] a line of filiation that is exclusively of voluntary origin" between himself or herself and another person, called the child, with whom the parent need not have any (and normally has no) bio-genetic relation.[8] The adoptions to which Louisiana private law gives effect come in a number of shapes and sizes, from “full” to “partial” adoptions and from “private,” to “agency,” to “family” adoptions.[9] The effects of adoption are identical to those of consanguinity. As CC art. 214 puts it,
[t]he adopted person is considered for all purposes as the legitimate child . . . of the adoptive parent or parents, including the right of the adopted person . . . to inherit from the adoptive parent . . . or the relatives of the latter by blood or by adoption, and the right of the adoptive parent . . . or the relatives of the latter by blood or by adoption to inherit from the person adopted . . . .
One should add that adoptive relatives in the direct line, just like consanguinous relatives in the direct line, owe each other a reciprocal alimentary duty.
CAffinity
1.Explication
The term "affinity" denotes a relationship that arises thanks to marriage. This relationship exists "between each spouse and the [blood / adoptive] relatives of the other; the young lady who marries becomes the daughter by marriage of the father and mother of her husband, the sister of his brothers and sisters, the niece of his uncles and aunts, etc.; reciprocally, hers become his father, mother, brothers, sisters, aunts, and uncles by marriage."[10]
2. Varieties & Proximity
Relationships among affinitives, like consanguinous relationships, can be described in terms of "lines." To his wife's ascendants and descendants, the husband is related "directly"; to her collaterals, "collaterally." And, within each line, one counts "degrees" just as one does among blood relatives. Thus, the husband is the second degree descendant, by marriage, of his wife's grandmother and the fourth degree collateral, by marriage, of her first cousin.
3.Effects
Though affinity once played a relatively significant role in Louisiana’s private law, that is no longer true today. Now its significance is limited to two rather narrow domains. The first is “child custody” following divorce. Affinitives are among those special relatives of the child who may be granted visitation rights in “extraordinary circumstances.”[11] The second is “nullity of donations” on account of “vices of consent.” When the person who allegedly defrauded the donor or subjected him to duress or undue influence was related to the donor by affinity, the person challenging the donation on such a ground faces a heightened standard of proof–clear and convincing evidence–, just as is true when the alleged wrongdoer was related to the donor by blood.[12]
IIHusband & Wife: Marriage
A Definition
Marriage is a legitimate (that is, legal recognized and protected) union of two persons who are of the opposite sex and are not closely related, created by a solemn contract between those persons and intended to establish a common life between them.
B Varieties of Marriage
At present, the private law of Louisiana recognizes two modes of marriage: "standard" (or "at will") marriage and "covenant" marriage. The two are distinguished both by their prerequisites and by the causes for their dissolution. Oversimplifying a bit, one can say that the difference comes down to this: a covenant marriage cannot be as lightly contracted or as lightly dissolved as can a standard marriage.
CFormation of Marriage
To form a valid marriage, the parties must satisfy a number of prerequisites. Some of these prerequisites pertain to both modes of marriage, that is, standard and covenant marriages alike. A few others are unique to covenant marriages.
1 General Prerequisites (Both Modes of Marriage)
The prerequisites that are common to both modes of marriage can be collected under two heads: “subjective” (or psychological) and “objective.”
1. Subjective Prerequisites
The “subjective” prerequisites are so named because they concern the “interior” disposition of the parties, that is, to what’s often called the “mind” or the “will” of the parties.
1.1Capacity
To contract a valid marriage, the parties must be “capable” of consenting to it. One lacks that capacity if and only if, at the moment at which one supposedly gave one’s consent to the marriage, one was “incapable of discernment.” Unlike contractual incapacity in general, incapacity to contract marriage is not established upon mere proof that the party is an “unemancipated minor” or an “interdict.” To put it another way, there is no logical connection between such juridical situations as “minority” and “interdiction,” on the one hand, and incapacity to marry, on the other: it is possible for an unemancipated minor or an interdict to possess this capacity. What matters, rather, is the party’s actual ”soundness or unsoundness” of mind at the supposed moment of consent, something that can be ascertained only after a careful examination of the facts. Examples of such incapables include persons who are “insane,” “under the influence of drugs,” “mentally retarded,” and “too young to understand the consequences of the marriage celebration.”[13]
1.2 Consent
To contract a valid marriage, the parties not only must be capable of giving their consent, but also must give it in fact (in other words, their consent must be “real”) and, further, must give it freely. Questions regarding the reality of consent rarely, if ever, arise in practice. The same is not true of questions regarding the freedom of consent.
Under the current legislation, consent to marriage is regarded as “not free” (or “vitiated”) in one situation and one situation only, namely, where it was “given under duress.”[14] In this context, duress includes not only actual physical force (“executed violence”), but also threats of violence, of criminal prosecution (provided that the charges are unwarranted), and of injury to reputation or property.[15]
Not mentioned in the legislation that defines free consent to marriage are the other two standard “vices of consent,” namely, “fraud” and “error.” This omission, one must suppose, could not have been inadvertent. In excluding fraud as a vice of consent to marriage, Louisiana can claim to be in good company: many, if not most, other civil law jurisdictions do the same.[16] The “rationale” behind this puzzling rule is the supposed difficulty involved in dividing “mere exaggerations” which, according to some observers, are an inevitable part of the courtship ritual, from “serious misrepresentations.” In excluding error as a vice of consent to marriage, however, Louisiana has isolated itself from the rest of the civil-law world. In all other civil law jurisdictions, error with respect to the “identity of the person” has long been and still is recognized as a vice of consent to marriage,[17] and in most modern civil law jurisdictions, even a mere error with respect to the “substantial qualities of the person” now qualifies as such a vice.[18]
2. Objective Prerequisites
2.1 Absence of Impediments
From the time of the ancient Romans up through the present day, the civil law, for reasons of public policy (or, to be more precise, public morality), has prohibited marriage between certain persons. At present, Louisiana law recognizes three such prohibitions or, as they are more commonly called, "impediments."
The first such impediment is that of a "prior undissolved marriage." According to CC art. 88, "[a] married person may not contract another marriage." The purpose of this prohibition, which, obviously enough, rests on a public policy to restrict marriage to monogamous unions, is to discourage polygamy.
Another impediment is that of "identity of sex." "Persons of the same sex," article 89 provides, "may not contract marriage with each other." This article rests on what, in other legislation, is referred to as a "strong public policy of the state,"[19] one rooted, no doubt, in the socially conservative (relatively speaking) mores of the Louisiana polity.
The third impediment is that of "proximity of relationship." Under CC art. 90, marriage is prohibited between ascendants and descendants (e.g., mother and son, grandfather and granddaughter), regardless of degree, and between collaterals "within the fourth degree," for example, between siblings, aunts and nephews, uncles and nieces, and first cousins. This impediment, which enforces the so-called "incest taboo," applies regardless whether the would-be spouses are related by legitimate, natural, or adoptive filiation (though, in the last case, certain exceptions are possible).
2.2 Ceremony
To form a valid marriage, the parties must participate in a marriage "ceremony."[20] The Civil Code establishes only three essential requirements for this ceremony. First, it must be performed before a third person who is or, at least, whom the parties reasonably believe is qualified to perform marriages.[21] Second, both parties must be physically present: it won't do for a party to send a mandatary (agent) in his place.[22] Third, at some point during the ceremony, the spouses must "express" their "consent . . . to take each other as husband and wife."[23] Though the Civil Code Ancillaries set forth some additional "requirements" for the ceremony, these provisions are evidently directed to the officiant rather than to the spouses themselves: if those requirements are violated, the sanction is not the nullification of the marriage, but rather the revocation of the officiant's power to perform marriages.
2 Special Prerequisites for Covenant Marriage
Those who aspire to enter into a “covenant marriage” must satisfy a number of prerequisites in addition to those set forth above. These additional prerequisites are of two kinds: substantive and formal.[24]
1. Additional Substantive Requirements
The additional substantive requirements are three in number. First, the parties must read a pamphlet, created by the Attorney General, that explains the concept and effects of covenant marriage. Second, they must “disclose[ ] to one another everything which could adversely affect the decision [of the other] to enter into th[e] marriage.” Third, and most important, they must receive “premarital counseling” from a clergyman or professional marriage counselor that entails, among other thing, a discussion of the “seriousness” of covenant marriage, in particular, that it is “for life.”
2. Additional Formal Requirements
Among the additional formal requirements, far and away the most important is this: the spouses must execute a “declaration of intent to contract a covenant marriage,” in notarial form, in which they recite, among other things, that they “agree to live together as husband and wife for so long as they both may live” and promise that, should they encounter marital difficulties, they will “take all reasonable efforts to preserve our marriage, including marital counseling.” This declaration must be accompanied by an affidavit from the couple’s marriage counselor attesting that they did, in fact, receive the required premarital counseling.
DEffects of Marriage
1 Reciprocal Obligations
Marriage gives rise to a number of "reciprocal" or "mutual" duties between the spouses. Of these duties, some benefit the spouses and others, their children.
1. Benefitting the Spouses
According to CC art. 98, the spouses owe each other "fidelity, support, and assistance." The duty of fidelity, which is extra-patrimonial, has both a "positive" and a "negative" aspect. On the "negative" side, which is the more obvious, each spouse is required to "refrain from adultery"; on the "positive" side, to "submit" to the other's "reasonable and normal sexual desires."[25] The duty of support--a patrimonial duty--obliges each spouse to furnish the other with the "necessities of life," a category that includes not only food, clothing, and shelter, but also certain conveniences that, in contemporary society, are considered to be "must haves," such as utilities, basic home appliances, and transportation.[26] The duty of assistance, which is partly extra-patrimonial and partly patrimonial, has, at once, a "moral" and a "material" dimension. "Moral assistance" refers to help (emotional, attitudinal, verbal) in times of "adversity (the experience of dismissal, unemployment, mourning)"[27]; "material assistance" includes the duty of each spouse to co-operate in running the household[28] and to attend to the other when he or she is sick.[29]
2. Benefitting the Family / the Children of the Marriage
Upon entering into marriage, the spouses “assume the moral and material obligations” that result from the “direction of the family” and the “exercise of parental authority.”[30] These obligations include those of “supporting, maintaining, and educating their children.”[31]
2 Special Patrimonial Rights
In the absence of a valid matrimonial agreement to the contrary,[32] property of certain kinds that the spouses happen to acquire during their marriage will belong to them “in common.” That means that each will have an undivided ½ interest in it and, save in certain exceptional circumstances, each will have at least some “say” in how it will be managed and whether and, if so, how it will be disposed of.
This “community property,”[33] as it is called, consists of all the “acquets and gains”[34] that come to the spouses during the marriage. Those acquets and gains include property acquired “through the effort, skill, or industry of either spouse,”[35] for example, wages and salaries; property “donated to the spouses jointly”; the “fruits” of both community property[36]and separate (that is, non-community) property[37], for example, interest on a bank account, stock dividends, rent generated from a lease of land; property acquired with community property; and “all other property no classified by law as separate property.”[38] Excluded from the category of acquets and gains, and therefore classified as “separate property,” are the following: property acquired by a spouse before marriage; property acquired by a spouse by inheritance or by a donation to him alone[39]; damages award to a spouse for personal injuries[40]; damages awarded to one spouse in a suit against the other; and property acquired with separate property.[41]