The Nature Of Family Law Theology Religion Essay Example
The Nature Of Family Law Theology Religion Essay Example

The Nature Of Family Law Theology Religion Essay Example

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In the mediaeval period, Family Law in the western world was primarily based on unchanging Canon Laws that governed marriage formation and dissolution. The merging and reforming of these laws started during Pope Gregory VII's time (1073-1084) and was mostly completed by the early twelfth century.

Source: Antokolskaia, "Development of Family Law in Western and Eastern Europe: Park Origins, Common Driving Forces, Common Tendencies", in Journal of Family History, Vol. 28, Issue-1, p. 53, 2003.

During the papacy of Pope Gregory VII, matrimony was declared a sacrament and marriage was considered to be under divine law and therefore could not be dissolved by human action. In the same period, the Orthodox Church also established a set of uniform Canonical rules that governed the formation of marriage and divorce, which were similar to Catholic Canonic traditions with some minor differences. (Antokolskaia, "Deve


lopment of Family Law in Western and Eastern Europe: Park Origins, Common Driving Forces, Common Tendencies", Journal of Family History, Vol.28, Issue-1, p.53, 2003)

During the 16th century at the Council of Trent, the fusion of Canon jurisprudence on matrimony was at its highest point. In that era, Canon jurisprudence had complete control over the process of forming a marriage, making a church celebration legally necessary for a valid marriage. In Roman times, concubinage was an accepted practice for unmarried individuals and was considered a lesser form of marriage. Antokolskaia, "Development of Family Law in Western and Eastern Europe: Park Origins, Common Driving Forces, Common Tendencies".

in Journal of Family History, Vol.28, Issue-1, p.53, 2003. However, due to the canonical reformation of the 12th century, matrimony became so essential that concubinage lost its recognition under Canon Law and children

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born to courtesans were considered illegitimate (bastardized). Ant. ibid Marriage became more institutionalized and deemed unbreakable, except in exceptional cases where marriage deserved to be declared void and null.

( ibid ) The ecclesiastical governments took over the responsibility of marriage revocation and personal separation of partners in matrimony. They implemented strict regulations and requirements for obtaining personal separation and revocations. During that time, Canon jurisprudence was considered as the common law of family law in the Western States. ( ibid ) However, the Catholic canonical authority and uniformity on marriage and divorce lasted until the Protestant Reformation. According to G.Lind in "Common Law Marriage" (Oxford, p.132, 2008) and M.Antokolskia in "Harmonization of Family Law in Europe: A Historical Perspective, A Tale of Two Millenia" (Intersentia-Oxford, p167, 2006), several religious denominations such as Protestants and Lutherans emerged during this period and enforced their own religious rules.

The Protestant Reformation, unlike Catholic Canonical regulations, no longer viewed matrimony as a sacrament solely within the jurisdiction of the ecclesiastical governments. This change led to the introduction of divorce in England and other states influenced by the Protestant reformation, such as the Nordic states and Germany. Consequently, marriage dissolution became a matter controlled by the state, leading to the imposition of secular laws by the progressing states and the gradual exclusion of ecclesiastical authorities from having legal power over family matters. However, despite rejecting the indissolubility rule and sacral elements of marriage, Protestant states still retained much of the canonical heritage.

M.Antokolskaia, in her book "Harmonization of Family Law in Europe-A Historical position: A narrative of two Millennia", published by Intersentia-Oxford in 2006, discusses the lasting impact of medieval Canon law

on family law. Despite the expiration of uniformity in canonical household jurisprudence, traces of canonical law influences continued to exist because many secular governments incorporated much of the canonical regulations. The Transformation of Family Law by Glandon, published by University of Chicago Press in 1998, notes that the reformatory period brought by the Enlightenment in the 17th and 18th centuries marked the emergence of cultural movements among European intellectuals in Europe and America.

The purpose of these movements was to bring about societal reform through challenging traditional and religious ideas and advocating for scientific methods. They also opposed superstition, intolerance, and abuses by the church and state (source: Wikipedia). Subsequently, the French Revolution and the rise of multiple ideological ideals followed. In these historical circumstances, it became increasingly difficult for secular states to justify the continued application of purely canonical concepts in their family law. Since this period, the development of family law across Europe has gradually involved abandoning canonical concepts and heritage and embracing the growing influences of liberal ideologies and multiculturalism.

Although the timing and speed of reforms and the extent of the transformation process vary, the overall pattern of family law in Europe remains largely similar. Present-day family law is moving in the same direction and addressing the same issues as before. The major difference between the historical development and the current state of family law lies in the pace of reforms and the level of transformation. For example, in countries like Malta and Ireland, where religious influences are strong, the process of transformation was slow. In Malta, secularization occurred in 1973 with the introduction of the Marriage Act, and divorce law was introduced

in 2010. On the other hand, Nordic countries underwent secularization of laws at an earlier time, particularly during the early 1900s. The transformation of family law from religious to more permissive approaches happened earlier and quicker.

However, the reforms' way was uniformly the same everywhere. Antokolskaia "Development of Family Law in Western and Eastern Europe: common Origins, Common Driving Forces, Common Tendencies", in Journal of Family History, Vol.28, Issue-1, p.53, 2003. In our modern-day time, certain concepts of Canon Law including marriage as a monogamous lifelong partnership, the prohibition of concubinage and the exclusion of illegitimate children, gradually lost their significance. However, these concepts survived for a considerable time. It took until the end of the 19th century when these canonical concepts started being seriously challenged.

The gradual release from medieval spiritual doctrines occurred throughout Europe, except in Russia. After the 1917 Russian Bolshevik Revolution, Russia transformed into a fully secular state, abandoning Orthodox canonical regulations. This transformation was driven by the forceful imposition of socialist ideals, which changed the perception of family in a broad way. Instant reforms were initiated, introducing civil marriage as the only legal form of marriage and simplifying divorce proceedings.

The US distinguished itself from Europe, Canada, and other countries by undergoing secularisation through the announcement of independence and acceptance of the US constitution. Despite its highly religious population, evidence of secularisation in the US can be seen in Supreme Court opinions and is implied by the First Amendment's guarantee of freedom of religion. While Western legal systems are becoming more secularised, multiculturalism is still influenced by strong moral values and diverse religious divisions. Presently, both Europe and America proudly display a multitude

of religious denominations such as Catholics, Protestants, Jews, and Muslims. These denominations further divide into subgroups including Orthodox Catholics, Lutherans, Orthodox Jews, and various Muslim factions.

In Western countries, there are various religious orders such as Jehovah Witnesses and Presbyterians, each with their own distinct traditions, customs, values, and moral rules. Additionally, there are non-religious groups or those associated with different political ideologies that have unique socio-political interests and values. The combination of these diverse interests is evident in multicultural societies where different family laws exist between communities.

Multiculturalism and Family Law

According to M.Antokolskaia's argument in "Family Law and National Culture: Controversy against the cultural restraints statement" from the book "Arguments in Family Law around the Globe at the Dawn of the twenty-first Century" edited by Boele-Woelki for common debate.

According to Intersentia-Oxford (2008, p37), household jurisprudence is deeply ingrained in the national civilizations of provinces. The lack of shared common values and legal aims is a direct result of the diverse cultural and historical influences. Throughout history, various moral, spiritual, and socio-political factors have influenced household jurisprudence constructs, leading to the development of different household jurisprudence systems (Muller-Freienfels, 1968, p. 175).

The European Council 2001 conducted a study on the estimation of MS statute law in civil affairs, with the findings published in the EC Report 13017/01 justciv 129, p.144. The report acknowledged that household jurisprudence is heavily influenced by culture, tradition, and even religious legal systems, which can pose challenges in harmonizing household jurisprudence across Europe (Antokolskaia, "Harmonization of Family in Europe: A Historical Perspective. A Narrative of Two Millennia", ibid.-p.28). While there are common historical roots of Family jurisprudence in Europe, each state also possesses its

own unique culture that affects its national legal systems.

According to Cotterrell, in his book "The Concept of Legal Culture" in Nelken's "Comparing Legal Cultures", it is also observed that certain countries exhibit multiple overlapping cultures, some of which are relatively localized while others are more cosmopolitan. These subcultures differ in their political beliefs and philosophical ideas, ranging from extremely conservative to highly liberal cultures with a wide range of variations and subgroups within them (Friedman, "The Republic of Choice: Law, Authority, and Culture").

The national differences in culture and ideology are sometimes evident in people's perceptions and beliefs within their households, as well as in the legal systems of different countries. The development of various cultural and ideological trends, starting from the Enlightenment and the reform period of the 19th century, has influenced the values and principles of family law. Antokolskaia (2008) argues against the notion that cultural constraints limit the development of family law, highlighting the impact of these diverse cultural and ideological influences.

The Influence of Religious Values on Family Law

Religious values also play a role in shaping family law in certain jurisdictions. Orucu (2010) discusses the relationship between diverse cultures and official laws, particularly focusing on multiculturalism and Euroscepticism. For instance, differences in religious affiliation contribute to varying divorce rates, with higher rates observed in Nordic Lutheran countries compared to Catholic countries.

Legal reforms regarding non-marital relationships and the status of children born within and outside of marriage are currently occurring in various countries. These reforms are happening at different speeds and through different approaches due to unique cultural circumstances. For instance, the Netherlands became the first European country to legalize same-sex marriage in 2001.

On the other hand, Malta only allowed divorce in 2011 after a controversial debate involving the Catholic Church. To fully comprehend the diverse levels of legal reform and family law changes over time, it is crucial to analyze them within their historical, socio-economic, political, cultural, and religious contexts.

The cultures of provinces in different countries vary due to historical events occurring at different times. For example, divorce laws were gradually developed in Europe and America rather than simultaneously across both continents. In the past, marriage was regulated solely by Canon law and did not permit divorce. However, during the reformation period, divorce was introduced as a solution for innocent spouses suffering from unfaithful partners. Currently, some progressive states have more liberal perspectives on marriage and support divorce as a valid choice for individuals. Sweden serves as an illustration of such a state where divorce is allowed solely based on the decision of the spouses and is considered a right.

Other provinces today utilize a combination of mistake-based evidence and irretrievable breakdown of marriage as grounds for divorce. The variations in divorce law primarily depend on the level of morality and spiritual influence that influences political decisions in shaping family law.

Family Law and International Cultures

The presence of multiculturalism in Western provinces necessitates the recognition of diverse values and cultural norms held by minority groups and communities. Often, the recognition of cultural values among minority groups clashes with the predominant cultural values of society, particularly in the realm of family law.

The text discusses the cultural differences in various household legal issues caused by divergent traditions of spiritual influences. It mentions that Sharia law, for example, allows for polygamous marriages,

marriages involving minors, and specific divorce proceedings known as telak, which are unfamiliar concepts in western societies. Additionally, the text highlights that the regulations concerning parental duties and marital property are particularly important among Muslim populations in Europe and the US. The increased mobility of populations between different states is identified as a factor contributing to the growing multicultural mix and religious diversity.

In addition to legal systems, some indigenous groups have their own laws. There are also communities in the western world, like Jews and Muslims, who follow their own religious laws. The growing number of multicultural families challenges established family law norms, leading to legal pluralism based on customary and religious laws. Orucu states in "Introduction to the place of Religion in Family Law: A comparative search" in "European Challenges in Contemporary Family Law", p.3, that few jurisdictions address the influence of spiritual traditions on family law within their legal framework.

In contrast, the majority of secular authorities do not typically address the conflict between religious and cultural traditions within domestic settings. A case in point is Sulaman v. Juffali, [ 2002 ] 1 FLR 479, [ 2002 ] 2 FCR 427, where a Family Court in England recognized that it operates within a multicultural society comprising various religious beliefs. The court emphasized its commitment to impartiality and fairness for all individuals, regardless of their religious affiliation. While the court encourages the practice of faith, it made clear that the government and secular courts should not consider or favor specific religious traditions and beliefs. The court stressed the importance of maintaining the well-established separation between church and state, asserting that it is not within a

judge's jurisdiction to compare or evaluate one religion against another.

In the case of R v.Derby City Council EWHC-375- ( Admin ) - ( 2011 ), the English tribunal determined that when there is a conflict between civil law and an individual's religious beliefs, civil secular law should take precedence. While many secular states do not have specific legal provisions for accommodating religious beliefs and practices, Crawford/Carruthers in "The Place of Religion in Family Law: The International Private Law Imperative" (found in "The Place of Religion in Family Law: A Comparative Search" edited by Mair and Orucu) argue that all faiths encounter situations across borders where individuals adhere to different religious traditions. This leads to different religious obligations and consequences for these individuals.

The national PIL often handles these situations. Generally, most European and American states are primary sources of domestic law, which often follows a predominantly monolithic model of law that may or may not allow for multiple sources of law to coexist. (Orucu, "Diverse Cultures and Official Laws: Multiculturalism and Euroscepticism?" Utrecht Law Review Vol.6, Issue-3, 2010) The Western tradition of law varies across states and is often centralized, with few exceptions that support legal pluralism, resulting in overlapping legal orders within the same legal system. Many legal systems today face challenges related to multiculturalism, particularly in cases concerning forced marriages, child marriages, children's rights, polygamy, extra-judicial divorce telak, and marital property. (Orucu, "Diverse cultures and official laws: Multiculturalism and Euroscepticism?" Utrecht Law Review Vol.6, Issue-3, 2010) Various approaches are used to address multiculturalism and the accompanying legal diversity in Western states.

In most cases, the management of spiritual traditions related to situations that cross boundaries

between states is handled through Public Interest Litigation (PIL), while multiculturalism is addressed through secularization. In secular states, the law is uniformly applied to the entire population within the county, excluding other normative rules. This is the general practice in America and Europe. However, there are also secular legal systems that specifically cater to the perspectives of certain minority groups in their respective jurisdictions. As a result, they incorporate specific legal provisions regarding the development and enforcement of certain aspects of religious laws and traditions within their jurisdiction.

Typical examples of these mechanisms include the Mufti Jurisdiction in Greece, where the Mufti's legal power is limited to Western Thrace territory. This jurisdiction regulates certain issues such as care, parental duties, matrimony, and divorce for Muslims within its legal boundaries. (Tsaoussi/Zervogianni, "Multiculturalism and Family Law: The case of Greek Muslims" in "European Challenges in Contemporary Family Law", Boele-Woelki/Svendrup- (eds.) -Intersentia, 2008 p209). Another example is the English legal system's Divorce Religious Marriages Act 2002, specifically section-10A, as well as similar provisions in certain US states like New Jersey and New York, which recognize and provide for the enforcement of the Jewish gett.

De-Blois, in his article "Judaic Family Law and Secular Legal orders: The illustration of gett refusal" in "European Challenges in Contemporary Family Law", page 211, refers to a case from the District Court Middelburg on 28th May 1986. In another article called "Religious jurisprudence versus secular law-The illustration of the get refusal in Dutch, English and Israeli jurisprudence" published in the Utrecht Law Review, Vol.6, Issue-2, 2010, De-Blois discusses this case.

The Impact of Secularization on Family Law

The separation between religion and state is now protected by

Article 9 of the European Convention on Human Rights (ECHR) as well as Section X of the US Constitution. These fundamental provisions ensure the freedom to practice any religion or belief system.

The text emphasizes the importance of freedom and the ability to practice various spiritual beliefs. It also emphasizes the need to not impose one's beliefs on others or interfere with their interests in accordance with one's personal beliefs. The author of an article in the Law and Justice Journal justifies secularism by stating that the public good must take precedence over religious arguments. This secularization has led to significant changes in the traditional family structure, as reflected in societal attitudes and demographic trends. These changes include a decrease in marriage rates, an increase in divorce rates, an increase in cohabitation and both heterosexual and same-sex relationships, and an increase in single-parent households.

Definition of Family

The definition of family has traditionally been the law that governs the household. The household was historically seen as consisting of a husband and wife, along with their dependent children. According to Masson/Baily-Harris/Robert, in their book "Cretney Principles of Family Law" (2008), this perception arose from the institution of marriage, which created and defined the status of the partners and their children. The law attributes rights, responsibilities, as well as capacities and incapacities to those who hold this status. However, nowadays different people have different perspectives on what constitutes a family. Contemporary family law is often viewed as the law that regulates the evolving relationships between individuals over time.

Family jurisprudence is a reflection of the values and civilization of the people in a particular province. These

values constantly change over time, and social attitudes and customs within a given province also adapt to maintain the newly adopted values (Farrugia, 2008). The evolving concept of what defines the notions of family and marriage varies in different American and European provinces, leading to legal diversity (Farrugia, 2008).

Definition of Marriage

The definition of marriage, as well as the individuals eligible to enter into it, has been a subject of disagreement in various legal systems that encompass different cultures. Values and cultures often change over time and become more accepting of social changes. Family law frequently needs to adapt to these social changes. Marriage is typically seen as a potentially lifelong voluntary union between a heterosexual couple, excluding all other relationships regardless of their form.

Carruthers, in his article titled "Domestic and Conflict Difficulties inherent in Regulating a new order", discusses the challenges of regulating a new family law structure in Europe. This article can be found in the book "Positions for the Unification and Harmonization of Family Law in Europe" edited by Boele-Woelki (Intersentia-Oxford, p.322, 2003). In this context, Carruthers refers to an authoritative 1866 English judgement given by Lord Penzance in the case Hyde v. Hyde (LP IP. ; A ; D.130, House of Lords). According to Lord Penzance, matrimony is defined as "the voluntary brotherhood for life of one adult male and one adult female to the exclusion of all others".

Penzance's definition does not recognize marriages that do not meet the criteria of traditional Christian marriage. This means that same-sex unions and polygamous marriages are both excluded. However, the concept of marriage has been undergoing significant changes, rendering Lord

Penzance's pronouncement no longer universally applicable. Since the post-war reformation period, starting from the 1950s, more liberal attitudes toward family and marriage have emerged, leading to the introduction of new liberal laws. Yvette-Tan discusses these changing attitudes in "New Forms of Cohabitation in Europe: Challenges for English Private International Law" as part of the broader conversation on the unification and harmonization of family law in Europe led by Boele-Woelki.

The development of jurisprudence has expanded to include private international jurisprudence, which recognizes various types of marriages that are entered into according to the legal formalities of foreign countries. These marriages can include religious ceremonies, such as Muslim, Orthodox, Jewish, and Catholic marriages, as well as civil marriages. Legal diversity arises from various religious influences, cultures, and traditions. In addition, some legal systems also recognize polygamous foreign marriages and same-sex marriages, although public policy considerations may restrict this recognition in certain cases.

In the provinces of West Germany, France, and England, few have a specific definition of marriage in their laws. Some courts within these provinces interpret marriage using the traditional definition established by Lord Penzance, which defines it as a family. The US Uniform Marriage and Divorce Act (UMDA) of 1970 is a significant federal law that serves as a model. According to this law, marriage is defined as "a personal relationship between a man and woman that arises from a civil contract requiring the consent of both parties...and that marriage can only be formed, maintained, annulled, or dissolved as provided by the law."

In section-201, it is stated that the US, along with Western European States, is a monogamous society where marriage was traditionally defined as an

exclusive union between one man and one woman. This is discussed by Wadlington in the book "Cross Currents-Family Law and Policy in the US and England" (2001, p. 236).

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