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.
A
Consanguinity
1.
Explication
The term "consanquinity," as its etymology suggests1, 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.
2.1
Direct 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.
1
2
Latin: consanguineus < con- (< cum-) [together with] + -sanguis- [blood] + -eus [formed from].
1 Marcel Planiol & Georges Ripert, TRAITÉ ELÉMENTAIRE DE DROIT CIVIL pt. 1, no 644, at 388
(12th éd. 1939; La. St. L. Inst. tr. 1959).
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
B
Adoption
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”
3
CC art. 901.
4
CC art. 901.
5
CC art. 880.
6
CC arts. 229 & 240-241.
7
CC art. 136.B.
8
VOCABULARIE JURIDIQUE 30 (Gérard Cornu éd., 1987) ("Adoption" n 1).
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.
C
Affinity
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
II
Husband & Wife: Marriage
The particulars of these different kinds of adoption will be examined in the course on “Family
Law” and the course on “Persons.”
9
10
1 Planiol, supra, note ___, no 652, at 392.
11
CC art. 136.B.
12
CC art. 1483.
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.
C
Formation 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.
1.1
Capacity
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
13
The pertinent legislation, CC art. 93, treats "incapacity of discernment" not as a species of
"lack of capacity to contract marriage," but rather as a species of "lack of free consent," CC art.
93 cmt. (c), in other words, as a "vice of consent." The supposed justification for this
astonishing confusion of categories is that the Louisiana courts, in interpreting the sources of
article 93, i.e., articles 90 and 91 of the Code of 1870, had so characterized "incapacity of
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
discernment." Id. Poppycock! Though it is true that the courts did characterize incapacity of
discernment in this fashion, it is just as true that they were wrong--stunningly and profoundly so.
The rationale behind the courts' characterization--that it was required in order to limit the right to
complain of the incapacity to the incapable spouse alone--rested on a fundamentally flawed
reading of the applicable Civil Code articles as well as on a monumental misunderstanding of the
juridical consequences of incapacity (to be more precise, a failure to appreciate the variable
consequences of incapacity of enjoyment and incapacity of exercise). That the redactors of new
article 93, instead from correcting this series of logical blunders, ended up writing it into their
legislation is lamentable.
14
CC art. 93.
15
CC art. 93 cmt. (b).
16
CODE CIVIL [FRANÇAIS] art. 180; CÓDIGO CIVIL [ESPAÑOL] art. 73; CODICE CIVILE [ITALIANO]
art. 122. Though these foreign civil code articles mention “duress” and “error,” they do not
mention “fraud.”
It is interesting to note that current canon law admits “fraud” as a vice of marital consent,
at least under some circumstances. See Code of Canon Law art. 1098. The canon law, of course,
was the original source of the civil law’s rules regarding such vices.
17
CODE CIVIL [FRANÇAIS] art. 180, par. 2; CÓDIGO CIVIL [ESPAÑOL] art. 73.4; CODICE CIVILE
[ITALIANO] art. 122, par. 2.
18
CODE CIVIL [FRANÇAIS] art. 180, par. 2; CÓDIGO CIVIL [ESPAÑOL] art. 73.4; CODICE CIVILE
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 wouldbe 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.
[ITALIANO] art. 122, par. 2. A similar, if somewhat more restrained, rule now obtains in canon
law. See CODE OF CANON LAW art. 1097, § 2.
19
See CC art. 3520.B.
20
CC arts. 87, par. 3, & 91.
21
CC art. 91. La. Rev. Stat. 9:202 specifies precisely who is so qualified: priests, ministers,
rabbis, "clerks," and other "clergymen" of "any religious sect; justices of the peace; and state
judges.
22
CC arts. 91, sent. 2, & 92.
23
CC art. 87, par. 4.
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.
D
Effects 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
24
25
The prerequisites summarized below are set out in La. Rev. Stat. 9:273 & 273.1.
CC art. 98 cmt. (b). The ultimate source of the "positive" duty, which the civil law borrowed
from the canon law, was St. Paul, to be precise, chapter 7, verse 3 of his first letter to the
Corinthian church: “Let the husband render/pay [] his debt/duty [] to the
wife and likewise also the wife to the husband.”
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 household28 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 property36 and
separate (that is, non-community) property37, for example, interest on a bank account, stock
26
CC art. 98 cmt. (c).
27
Gérard Cornu, DROIT CIVIL: LA FAMILLE no 30, at 59 (7th éd. 2001).
28
Id.
29
CC art. 98 cmt. (c).
30
CC art. 99.
31
CC art. 227.
32
CC art. 2328.
33
CC art. 2327, 2335, 2336.
34
CC art. 2327.
35
CC art. 2338.
36
CC art. 2338.
37
CC art. 2339, par. 1, sent.. The spouse to whom the fruit-generating separate property belongs
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 alone39; damages award to a spouse for personal injuries40; damages awarded to
one spouse in a suit against the other; and property acquired with separate property.41
Precisely how much “say,” if any, each spouse has in the management and disposition of
this or that community asset depends on its nature. The general rule is one of “independent”
management and disposition, that is, either spouse can make management and even disposition
decisions independently of the other.42 To this general rule there are two exceptions. First, with
respect to the most important assets, such as community immovables (land, buildings), neither
spouse can make any significant management or disposition decision without the concurrence of
the other.43 Second, still other assets–those that are of a more personal nature (movables
registered in the name of one spouse, partnership interests)–are subjected to the exclusive control
of the spouse who is the more closely connected to it.44
E
Nullity of Marriage
1
Explication
If any of the prerequisites to the formation of a valid marriage is left unsatisfied, then the
resulting “marriage” is “null.” The nature of the nullity, that is, whether it is “absolute” or
“relative,” depends on the nature of the unsatisfied prerequisite. If the marriage was contracted
without a proper ceremony or in violation of an impediment, then it is absolutely null. But if the
marriage was contracted without proper consent, that is, if one of the parties lacked capacity to
consent or if his consent was vitiated, then it is relatively null.
2
Effects
a
Absolutely Null Marriage
can, however, “reserve” them as his separate property. But that requires the execution and
recordation of a solemn unilateral juridical act. CC art. 2339, par. 1, sent. 2, & par. 2.
38
CC art. 2338.
39
CC art. 2341.
40
CC art. 2344.
41
CC art. 2341.
42
CC art. 2346.
43
CC art. 2347.
44
CC arts. 2351 & 2352.
In describing the juridical effects of an absolutely null marriage, one must distinguish
between the general rule and an exception.
1.
General rule
The general rule, not surprisingly, is that such a marriage (like any other null juridical
act) produces no effects whatsoever. Indeed, it is considered never to have existed or, to put it
another way, to have been null ab initio (from the beginning). That means, among other things,
that a party to such a marriage is free to contract another marriage without further ado, in
particular, without first getting a declaration of nullity.
2.
Exception: “putative marriage”
To this general rule there is, however, an important exception, known as the “putative
marriage” rule. According to this rule, which is of canonical origin, an absolutely null marriage
produces “civil effects” notwithstanding the nullity, provided that at least one of the spouses
contracted it in “good faith,” that is, had an “honest and reasonable belief that there exist[ed] no
legal impediment to the marriage.” These civil effects are produced only in favor of the spouse
who was in good faith: if both were in good faith, then, of course, both will get the effects. And
these effects continue to be produced, as a general rule, for so long as the “good faith” spouse(s)
remain(s) in good faith. Among the “civil effects” so produced are these: (i) the good faith
spouse has a right to fidelity, support, and assistance from the other and can claim a ½
“community property” interest in all of the “acquets and gains” of the other spouse; and (ii) the
children of the marriage are accorded “legitimate” status.
The putative marriage rule is, in principle, applicable to every kind of absolutely null
marriage save for one: that which violates the “same sex” impediment. Such a “purported
marriage,” in the words of the Civil Code, “does not produce any civil effects.”
b
Relatively Null Marriage
A relatively null marriage, like any other relatively null juridical act, is considered to be
valid unless and until it is judicially declared to be null. For that reason, a relatively null
marriage “produces effects until it is declared null.”45 Not only that, but even when such a
marriage is finally declared to be null, the civil effects that were theretofore produced still stand,
that is, are not retroactively “wiped out.”
F
Dissolution of Marriage
Marriage is “dissolved” (that is, terminated) upon the death (real or presumed) of either
spouse or upon divorce.46 The grounds for divorce vary rather significantly as between standard
marriages, on the one hand, and covenant marriages, on the other.
1
Divorce: Standard Marriage
A standard marriage can be dissolved by divorce on any of three grounds. Two of them,
which might be called the “traditional” grounds (inasmuch as they have long been recognized
45
CC art. 97.
46
CC art. 101.
under Louisiana private law), are based on “fault”: a spouse can obtain a divorce if (i) the other
spouse has committed adultery and (ii) the other spouse, after having been convicted of a felony,
has been sentenced therefor to imprisonment at hard labor or to death. The third, which
represents a fairly recent innovation and is not at all based on “fault,” is this: the spouses have
lived “separate and apart” for at least 180 days (six months). For such a separation to suffice as a
cause of divorce, all that is necessary is that it have been voluntary on the part of at least one of
the spouses. It is not necessary that the separation have had any particular cause or that the
spouses have agreed to it mutually. Thanks to this ground of divorce, then, either spouse can, in
effect, end the marriage unilaterally and for any reason whatsoever (or no reason at all!) simply
by moving out of the matrimonial domicile, waiting 180 days, and petitioning for divorce.
2
Divorce (& Separation): Covenant Marriage
The law regarding the dissolution of a covenant marriage by divorce is, by comparison,
rather complex. The source of the complexity is two-fold. First, covenant marriage affords the
disaffected spouse a less radical “remedy” to the other spouse’s offenses than divorce, namely,
“separation from bed and board,” yet another institution that the civil law picked up from the
canon law. Second, the grounds for dissolving a covenant marriage by divorce – as well as for
the less radical alternative of separation – are more numerous than those for so dissolving a
standard marriage.
1.
Separation from bed & board
1.1
Explication
A judgment of “separation from bed and board,” unlike a judgment of divorce, does not
dissolve the marriage, but rather merely puts an end to the spouses’ “conjugal cohabitation” and
to the “common concerns” that existed between them.47 What that means is that the separated
spouses are freed from their duty to live together as well as from their reciprocal positive duties
of fidelity and (at least for the most part) assistance and, further, that the acquets and gains of
each remain his or her separate (as opposed to community) property. In all other respects,
however, the separated spouses remain fully married: they are unable to remarry and still owe
each other reciprocal duties of negative fidelity and support.
1.2
Grounds
All of the grounds for separation, save one, are based on “fault” and, of those based on
fault, all, save one, are “traditional.”48 The traditional fault-based grounds are these: (i) the other
spouse has committed adultery; (ii) the other spouse, after having been convicted of a felony, has
been sentenced therefor to imprisonment at hard labor or to death; (iii) the other spouse has
abandoned the matrimonial domicile for a year, during which time he has constantly refused to
return; (iv) the other spouse has been guilty of habitual intemperance, excesses, cruel treatment,
or outrages of such a nature as to render the spouses’ continued life together intolerable. The
“new” fault-based ground is that the other spouse “has physically or sexually abused the spouse
seeking the divorce or a child of one of them.” The sole ground that does not entail fault closely
parallels the “no-fault” ground for divorce that applies to standard marriages; the only difference
between the two is that, in the case of a covenant marriage, the required period of physical
47
La. Rev. Stat. 9:309.A.
48
These grounds are enumerated in La. Rev. Stat. 9:307.B.
separation is considerably longer, namely, two years (as opposed to six months).
It is important to note that the mere occurrence of the predicate facts entailed in this or
that ground for separation does not, in itself, entitle the disaffected spouse to demand a
separation. To the contrary, such a spouse must first, before making such a demand, participate
in marital counseling with a view to reconciling with the spouse who has given offense.49
2.
Divorce
With two exceptions, the grounds for dissolving a covenant marriage by divorce50 are
identical to the grounds for separation. One exception concerns “habitual intemperance, etc.”
Though such acts provide cause for separation, they do not provide cause for divorce. The other
exception concerns physical separation following a judgment of separation. Either spouse to a
covenant marriage can obtain a divorce after they have lived separate and apart for a fixed period
of time following the rendition of a prior judgment of separation. If the spouses are childless or
if their children are majors, the period is one year; if their union has produced at least one child
and that child is still a minor, then the period is a year and a half. As is true of a demand for
separation, a demand for divorce cannot be made until the spouses have undergone marital
counseling with a view to reconciliation.51
III
Parent & Child
A
Formation of the Relationship: Filiation
1
Explication
If "family" is the chain that binds persons together, then "filiation" is the link out of
which that chain is made. Described less metaphorically, "filiation" is the relation between
immediate successors in the direct line, that is, between each parent and each of his children.
The family relationship of grandparent and grandchild, then, consists of two "filiation links,"
namely, that between the grandparent and his child (the parent of the grandchild) and that
between the parent of the grandchild and his child (the grandchild). Similarly, the family
relationship of aunt and nephew consists of three "filiation links"--that between the aunt and her
parent (the grandparent of the nephew), that between her parent (the grandparent of the nephew)
and another child of her parent (a sibling of the aunt and the parent of the nephew), and that
between her sibling and her sibling's child (the nephew).
2
Varieties
The civil law of Louisiana, like that of most, if not all, civil law jurisdictions, recognizes
two types of filiation. One, known as "biologicial" or "physiological," is rests on the purely
"natural" juridical fact of bio-genesis (reproduction); another, known as "adoptive," rests on the
juridical act known as "adoption."
49
Id.
50
These grounds are enumerated in La. Rev. Stat. 9:307.A.
51
Id.
a
True (Biological) Filiation
Biological filiation itself comes in two varieties: legitimate and illegitimate52 (sometimes
called "natural").
1)
Legitimate Filiation
Legitimate filiation is the relation between a parent and his or her "legitimate" child. Of
such children there are two kinds: legitimates ab initio and legitimates post hoc.
1.
Legitimates ab initio
A legitimate child ab initio (one who is "legitimate" from the beginning, that is, from the
moment of his birth) is one who is "born or conceived during marriage."53 To assure the
legitimacy of such a child, no act of the parent (aside from participation in the act of procreation
at the right time, that is, during marriage) is required.
2.
Legitimates post hoc
A post hoc legitimate child is one who, though born and conceived outside of marriage
and, therefore, "illegitimate" at the moment of his birth, is later "legitimated" through some act
of his parent.54 There are two such possible acts.
2.1
Legitimation by juridical act
First, the parent can legitimate an illegitimate child through an "act of legitimation." In
such an act, which must be in authentic form, the parent must simply "declare that it is the
intention of the parent making the declaration to legitimate such child or children."55
2.2 Legitimation by marriage plus acknowledgment
Second, the parent can legitimate an illegitimate child by "marriage plus
acknowledgment." To be precise, what the parent must do is (i) marry the illegitimate child's
other parent after the child is born and (ii) either before of after the wedding, acknowledge the
child, whether formally or informally, as his own.56
2.2.1 Formal acknowledgment
A formal acknowledgment is some declaration or admission, in appropriate written form,
that one is indeed the parent of a certain illegitimate child.57 Either of two kinds of writing will
suffice: (i) an authentic act by the parent that contains such a declaration or (ii) a signature on a
52
CC art. 178.
53
CC art. 179.
54
CC arts. 179 & 181.
55
CC art. 200.
56
CC art. 198.
57
CC art. 203.A.
birth certificate or baptismal register on the line marked "parent."58
2.2.2 Informal acknowledgment
An informal acknowledgment is some declaration(s) or act(s) or both whereby the parent
“openly and notoriously” holds the child out to his community “as his own.”59
2)
Natural (Illegitimate) Filiation
Illegitimate filiation is the relation between a parent and his or her "illegitimate" child.
Such children are "those who are conceived and born out of marriage."60
b
Fictitious (Adoptive) Filiation
1)
Explication
Adoptive filiation is the relation between a parent and his or her adopted child.
Adoption, as was noted above, is a juridical act whereby one person–the parent–, by dent of his
will, establishes a bond of filiation between himself and another person–the child.
2)
Proof
For filiation to produce its effects, it must, of course, be proved. What kinds of proof are
necessary or sufficient varies somewhat depending on the nature of the filiation that is supposed
to exist.
1.
Biolological filiation
1.1
Legitimate filiation
To assist the interested parties (and the courts) in evaluating claims of legitimate filiation,
the civil law has established a number of presumptions. First, the husband of the child’s mother
is presumed to be the child’s father (and, therefore, the child is presumed to be his legitimate
child) if the child is born during their marriage.61 Second, if the child is born after the
dissolution of the mother’s marriage but within 300 days of the date on which the dissolution
was effective, then the mother’s former husband is presumed to be the child’s father (and,
therefore, the child is presumed to be his legitimate child).62 Third, when both of these
presumptions are potentially applicable, that is, when the child is born to a mother during her
second marriage but still within 300 days of the dissolution of her first marriage, the latter
presumption prevails, that is, the child is presumed to be the legitimate child of the first
58
Id.
59
See CC art. 891.
60
CC art. 180.
61
CC art. 184.
62
CC art. 185.
husband.63
In cases to which one of these presumptions of legitimate filiation, the presumed father
or, if he dies within the specified prescriptive period without having acted, his successors may
challenge the presumption. But the challenge must be brought in a special kind of proceeding,
known as a “disavowal action” (from the French action en désaveu),64 which is subject to special
requirements of proof and prescription. To be sufficient to rebut the presumption, the evidence
must be “susceptible of independent verification or of corroboration by physical data or
evidence.”65 To be timely, the action, if brought by the presumed father himself, must be
brought within a year after he learned or should have learned of the child’s birth66 or, if brought
by his successors, within a year of the child’s birth or the presumed father’s death, whichever
comes later.67
1.2
Illegitimate filiation
To establish filiation between an illegitimate child and its parent, either of two things is
necessary. First, the parent must have formally acknowledged the child.68 Such an
acknowledgment creates a presumption (albeit a rebuttable one) that the child is, in fact, the
illegitimate child of the acknowledging parent.69 Second, the child (or someone acting on his
behalf) must bring and win (or must already have brought and won) a “filiation” (paternity)
action against the parent.70 To be timely, this action must be brought by the earlier of (i) the
alleged father’s death and (ii) the child’s 19th birthday.71
2.
Adoptive filiation
Adoptive filiation is perhaps the simplist of all forms of filiation to prove. The claimant
must simply produce the appropriate paperwork (the written evidence of the juridical act) and
show that it complies with all applicable statutory requirements.
B
Effects of the Relationship
1
Parental Power
Though the power of parents over their children in modern-day Louisiana is but a pale
63
CC art. 186.
64
CC art. 187.
65
Id.
66
CC art. 189.
67
CC art. 190.
68
CC art. 203.A.
69
CC art. 203.B.
70
CC arts. 208 & 209.
71
CC art. 209.C.
comparison of the power that the father wielded over his children in ancient Rome, it is not
inconsiderable. As was true long ago in Rome, today in Louisiana this power does not extend to
all children. Illegitimate children, according to the Civil Code, “are not submitted to the parental
authority, even when they have been legally acknowledged.”72 Parental power, then, is now and
always has been confined to legitimate and adopted children.
For as long as the legitimate or adopted child remains an unemancipated minor, he is
subject to the “authority” of his father and mother.73 This authority is in part “moral” and in part
“material.” The parents’ moral authority includes the right to “correct” the child74 and the right
to direct and control the child’s education.75 Their material authority entails the right to
determine where the child shall live,76 the right to administer the child’s property,77 and the right
of usufruct over all least part of the child’s property.78 For his part, the child owes his parents
“honor and respect”79 as well as “obedience”80 and is bound to reside with them unless they
permit him to live elsewhere.81
2
Parental Obligations
Alongside the duty that the parent owes his or her children (be it legitimate or
illegitimate) simply by virtue of the ascendant-descendant relationship that exists between them,
namely, the alimonial duty, the parent owes his or her legitimate children (but not his or her
illegitimate children) still other duties. The most fundamental of these other duties are those of
“supporting, maintaining, and educating” the children.82 In addition, where the child has
property of his own and the parent exercises his power of administration over that property, the
parent must “account” to the child, for both the property itself and the revenues it has generated,
CC art. 238. Illegitimate children are, however, subjected to the “tutorship” of their mothers.
See CC art. 256.A.
72
73
CC art. 216.
74
CC art. 218.
75
CC art. 227.
76
CC art. 218.
77
CC art. 221.
78
CC arts. 223 & 226.
79
CC art. 215.
80
CC art. 217.
81
CC art. 218.
82
CC art. 227.
when this power of administration comes to an end, that is, when the child reaches majority.83
83
CC art. 221, pars. 2 & 3.