Affinity (law)

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In law and in cultural anthropology, affinity is the kinship relationship created or that exists between two people as a result of someone's marriage. It is the relationship which each party to a marriage has to the relations of the other partner to the marriage, but it does not cover the marital relationship itself. Laws, traditions and customs relating to affinity vary considerably, sometimes ceasing with the death of one of the marriage partners through whom affinity is traced, and sometimes with the divorce of the marriage partners. In addition to kinship by marriage, "affinity" can sometimes also include kinship by adoption or a step relationship.

Contents

Unlike blood relationships (consanguinity), which may have genetic consequences, affinity is essentially a social or moral construct, at times backed by legal consequences.

In law, affinity may be relevant in relation to prohibitions on incestuous sexual relations and in relation to whether particular couples are prohibited from marrying. Which relationships are prohibited vary from jurisdiction to jurisdiction, and have varied over time. In some countries, especially in the past, the prohibited relationships were based on religious laws. In some countries, the prohibition on sexual relations between persons in an affinity relationship may be expressed in terms of degrees of relationship. The degree of affinity is considered the same as the consanguineal level a couple was joined, so that, for example, the degree of affinity of a husband to his sister-in-law is two, the same as the wife would be to her sister on the basis of consanguinity. The degree to the wife’s parent or child is one, and to an aunt or niece it is three, and first cousin it is four. Though adoption and step relationships are cases of affinity, they are normally treated as consanguinity.

Terminology

In law, affinity relatives by marriage are known as affines.

More commonly, they are known as in-laws or family-in-law, with affinity being usually signified by adding "-in-law" to a degree of kinship. This is standard for the closest degrees of kinship, such as father-in-law , daughter-in-law , brother/sister-in-law, etc., but is frequently omitted in the case of more extended relations. As uncle and aunt are frequently used to refer indifferently to friends of the family, the terms may be used without specifying whether the person is a cognate or affine. Similarly, the spouse of a cousin may not be called a relation at all or may be referenced as a "cousin by marriage".

Examples

In South Africa, sexual relations are prohibited within the first degree of affinity, that is, where one person is the direct ancestor or descendant of the spouse of the other person. [1]

Brazilian law, by the Article 1521 of the Civil Code, also extends the invalidity of marriage between parents and children to grandparents and grandchildren or any other sort of ascendant-descendant relationship (both consanguineous and adoptive), parents-in-law and children-in-law even after the divorce of the earlier couple, as well as to stepparents and stepchildren, and former husbands or wives to an adoptive parent who did this unilaterally (regarded as an equivalent, in families formed by adoption, to stepparents and stepchildren); and extends the invalidity of marriage between siblings to biological cousin-siblings. [2] [3]

In Hawaii, sexual penetration and marriage is prohibited within close degrees affinity and is punishable by up to 5 years. [4]

In Michigan, sexual contact between persons related "by blood or affinity to the third degree" are chargeable as criminal sexual conduct in the 4th degree and punishable by a 2-year sentence or a fine of up to $500 or both. [5]

In New Jersey, sexual contact is prohibited when the actor is "related to the victim by blood or affinity to the 3rd degree" and the victim is at least 16 but less than 18 years old. [6]

See also

Notes

    Related Research Articles

    Incest is human sexual activity between family members or close relatives. This typically includes sexual activity between people in consanguinity, and sometimes those related by affinity, adoption, clan, or lineage.

    A step, blended, bonus, or instafamily is a family where at least one parent has children that are not biologically or adoptive related to the other spouse or partner. Either parent, or all, may have children from previous relationships. Children in a stepfamily may live with one biological or adoptive parent, or they may live with each biological or adoptive parent for a period of time. In addition, visitation rights mean that children in stepfamilies often have contact with both biological parents, even if they permanently live with only one.

    Kinship Human relationship term; web of social relationships that form an important part of the lives of most humans in most societies; form of social connection

    In anthropology, kinship is the web of social relationships that form an important part of the lives of all humans in all societies, although its exact meanings even within this discipline are often debated. Anthropologist Robin Fox states that "the study of kinship is the study of what man does with these basic facts of life – mating, gestation, parenthood, socialization, siblingship etc." Human society is unique, he argues, in that we are "working with the same raw material as exists in the animal world, but [we] can conceptualize and categorize it to serve social ends." These social ends include the socialization of children and the formation of basic economic, political and religious groups.

    Consanguinity Property of being from the same kinship as another person

    Consanguinity is the property of being from the same kinship as another person. In that aspect, consanguinity is the quality of being descended from the same ancestor as another person.

    In Catholic canon law, affinity is an impediment to marriage of a couple due to the relationship which either party has as a result of a kinship relationship created by another marriage or as a result of extramarital intercourse. The relationships that give rise to the impediment have varied over time. Marriages and sexual relations between people in an affinity relationship are regarded as incestuous.

    Commonly "cousin" refers to a "first cousin", a relative whose most recent common ancestor with the subject is a grandparent. More generally, in the lineal kinship system used in the English-speaking world, a cousin is a type of familial relationship in which two relatives are two or more familial generations away from their most recent common ancestor.

    Jewish views on incest deal with the sexual relationships which are prohibited by Judaism and rabbinic authorities on account of a close family relationship that exists between persons. Such prohibited relationships are commonly referred to as incest or incestuous, though that term does not appear in the biblical and rabbinic sources. The term mostly used by rabbinic sources is "forbidden relationships in Judaism."

    Chinese kinship

    The Chinese kinship system is classified as a "Sudanese" or "descriptive" system for the definition of family. Identified by Lewis Henry Morgan in his 1871 work Systems of Consanguinity and Affinity of the Human Family, the Sudanese system is one of the six major kinship systems together with Eskimo, Hawaiian, Iroquois, Crow, and Omaha.

    Article 809 of the Korean Civil Code was the codification of a traditional rule prohibiting marriage between men and women who have the same surname and ancestral home (bon-gwan). On 16 July 1997, the Constitutional Court of Korea ruled the article unconstitutional. The National Assembly of South Korea passed an amendment to the Article in March 2002, which came into force on 31 March 2005, and prohibited marriage only between men and women who are closely related.

    Marriage law area of law concerned with marriage

    Marriage law refers to the legal requirements that determine the validity of a marriage, and which vary considerably among countries. See also Marriage Act.

    Cousin marriage Marriage between those with common grandparents or other recent ancestors

    A cousin marriage is a marriage where the partners are cousins. The practice was common in earlier times, and continues to be common in some societies today, though in some jurisdictions such marriages are prohibited. Worldwide, more than 10% of marriages are between first or second cousins. Cousin marriage is an important topic in anthropology and alliance theory.

    The following outline is provided as an overview of and topical guide to interpersonal relationships.

    In law, a prohibited degree of kinship refers to a degree of consanguinity and sometimes affinity between persons that results in certain actions between them being illegal. Two major examples of prohibited degrees are found in incest and nepotism. Incest refers to sexual relations and marriage between closely related individuals; nepotism is the preference of blood-relations in the distribution of a rank or office.

    Family group of people affiliated by consanguinity, affinity, or co-residence

    In human society, a family is a group of people related either by consanguinity or affinity. The purpose of families is to maintain the well-being of its members and of society. Ideally, families would offer predictability, structure, and safety as members mature and participate in the community. In most societies, it is within families that children acquire socialization for life outside the family. Additionally, as the basic unit for meeting the basic needs of its members, it provides a sense of boundaries for performing tasks in a safe environment, ideally builds a person into a functional adult, transmits culture, and ensures continuity of humankind with precedents of knowledge.

    A void marriage is a marriage that is unlawful or invalid under the laws of the jurisdiction where it is entered. A void marriage is "one that is void and invalid from its beginning. It is as though the marriage never existed and it requires no formality to terminate." A marriage that is entered into in good faith, but that is later found to be void, may be recognized as a putative marriage and the spouses as putative spouses, with certain rights granted by statute or common law, notwithstanding that the marriage itself is void.

    Milk kinship, formed during nursing by a non-biological mother, was a form of fostering allegiance with fellow community members. This particular form of kinship did not exclude particular groups, such that class and other hierarchal systems did not matter in terms of milk kinship participation.

    Laws regarding incest vary considerably between jurisdictions, and depend on the type of sexual activity and the nature of the family relationship of the parties involved, as well as the age and sex of the parties. Besides legal prohibitions, at least some forms of incest are also socially taboo or frowned upon in most cultures around the world.


    Commonly a sibling-in-law is the relationship that exists between a persons sibling and the persons spouse. This relationship is reciprocal, as it includes relationship from sibling to spouse and from spouse to sibling. More commonly a sibling-in-law is referred to as a brother-in-law for a male sibling-in-law and a sister-in-law for a female one.

    Sesotho – the language of the Basotho ethnic group of South Africa and Lesotho – has a complex system of kinship terms which may be classified to fall under the Iroquois kinship pattern. The complex terminology rules are necessitated in part by the traditional promotion of certain forms of cousin marriage among the Bantu peoples of sub-Saharan Africa. Most of the terms used have common reconstructed Proto-Bantu roots.

    Adoption in the Philippines

    Adoption in the Philippines is a process of granting social, emotional and legal family and kinship membership to an individual from the Philippines, usually a child. It involves a transfer of parental rights and obligations and provides family membership. The Department of Social Welfare and Development (DSWD) defines adoption as a "socio-legal process of giving a permanent family to a child whose parents have voluntarily or involuntarily given up their parental rights."

    References

    1. Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, s. 12.
    2. "Mundo do Direito, da Hist贸ria, da M煤sica e da Literatura". direitomaisdireito.blogspot.com.br.
    3. Direito Brasil – Marriage (in Portuguese)
    4. Haw. Rev. Stat. § 707-741 and 706-660
    5. MCLS §
    6. N.J.S.A. 2C:14-2(b-c) and N.J.S.A. 2C:14-3 in NEW JERSEY, Rape, Abuse & Incest National Network [ permanent dead link ]