Chapter 4 - Persons and Family law

Question 1

The law of persons

Answer 1

The source of it is Civil Law. In BE there’s a Civil Code, and there have been several reforms
of it.
- in family law : mater semper certa est
- in law of persons : gender equality
A global reform of the ‘old’ Civil Code is in progress.

Question 2

What is a person?

Answer 2

A living human being and corporate entity have a legal personality. A dead human being has
no personality but is protected by law to some extent.
=> Animals have no personality under the law.

Question 3

Legal personality

Answer 3

It starts with birth and ends with death. As from its conception the unborn child also has
some legal right. The right to life, to inherit and receive donations and to be recognized.

Question 4

Status of a person

Answer 4

= the set of qualities determine the legal position of a person in civil society and in his family.
It’s governed by public policy rules, ex…
- altering sex
- altering name
Is not possible without respecting specific legal conditions.

Question 5

There are a few elements that define the status of a person and define their legal capacity.

Answer 5

Name, sex, domilice, nationality and martial status.

Question 6

First name

Answer 6

is freely chosen, but should not be confusing or harmful for the child nor for third
parties.

Question 7

Surname

Answer 7

not chosen but passed down to children. Can be one or both of their parents’ family
names. The use of family names is common in most cultures around the world, with
each culture having its own rules as to how these names are formed, passed and
used. In BE by default name of the father, but choice is possible.

Question 8

Sex : male / female / unidentified

Answer 8

Determining the sex of a natural person normally is no problem. However, problems can
occur with intersex and transsexual people.

Question 9

Intersex

Answer 9

a variation in sex characteristics including chromosomes, gonads, or
genitals that do not allow an individual to be distinctly identified as male or female.

Question 10

Transsexualism

Answer 10

a person identifies with a gender inconsistent or not culturally
associated with their assigned sex. A person’s assigned sex at birth conflicts with
their psychological gender.

Question 11

Domicile

Answer 11

Status or attribution of being a permanent resident in a particular jurisdiction.

Question 12

Different branches of law attach a different meaning to domicile.

Answer 12

• Civil law : centre of a person’s interests.
• Procedural law: place where a person is officially registered, at a specific address,
  according to the municipal personal data records.

Question 13

habitual residence

Answer 13

place where one has their home, in the sense that they usually live and sleep there, and
return to it in general after going to work or to other places.

Question 14

Nationality

Answer 14

The status of belonging to a particular nation, whether by birth or naturalization.

=> Nationality law defines the rights and obligations of citizenship within the jurisdiction
and the manner in which citizenship is acquired as well as how citizenship may be lost.

Question 15

Multiple nationality

Answer 15

a person’s citizenship status, in which a person is concurrently regarded as a citizen of more
than one state under the laws of those states. They can have citizenship by…
- descent
- birth on the country’s territory
- naturalization
- adoption
- investment
- religion
- marriage : abolished in BE, only two options. By declaration (legal right) or
naturalization ( privilege).

Question 16

Statelessness

Answer 16

someone who isn’t considered as a national by any state under the operation of its law. This
is a significant problem, even in Belgium.

There are multiple causes for statelessness.
- Nationality criteria based on ethnicity, language or religion.

• States in which women do not have the same nationality rights as men.
• Nationality laws drafted when states were created, or when territory was transferred
  (state succession), which are limited in scope and use deadlines.
• Incompatibilities in the application of two or more nationality laws.

Question 17

Legal capacity

Answer 17

= defined by all the elements of the state of a person. There’s a difference between actual
and legal capacity.

● Actual capacity : a person’s actual ability to do or undertake something. Ex. ability to
read and write.

● Legal capacity : a person’s capability and power under law to engage in a particular
undertaking or transaction, or to maintain a particular status or relationship with
another.

The capacity to act is the capacity to perform acts with legal effects. In BE this is only for
adults, but increasing legal capacity is granted with age.

=> Incapacitated ppl are those who are made legally incapable or ineligible. These include…
- unemancipated minors (child under the age of 18 years)
- involuntary patients or forensic patients
- people under guardianship

Question 18

Unemancipated minors

Answer 18

are entirely and generally incapacitated to act. They have to be represented by the parents /
parent or a legal guardian.

Question 19

UN Convention on the Rights of the Child (1989), art. 3

Answer 19

In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.

Question 20

European Convention on the Exercise of Children’s Rights (1990)

Answer 20

Guarantees the right of the child to apply for the appointment of a special
representative (conflict of interest between a child and the holders of parental
responsibilities).

Question 21

Emancipated minor

Answer 21

a legal institution in which a minor finds themselves in a transitional phase from minority to
majority. In BE, preceding advice from a Public Prosecutor is mandatory.

=> Emancipated minors have a larger autonomy to act than unemancipated ones, but for
some legal acts they still require “assistance” by a curator (less strict than representation by
a guardian).

Question 22

Family law

Answer 22

Much like the law of persons, its source is Civil law.

Concepts of family
There are two primary sources for the concept of ‘family’.
- Contractual marriage between husband and wife.
- Natural birth of children by parents. From marriage or recognition.

Question 23

Kinship degree calculation

Answer 23

Western kinship degree calculations have varied historically and geographically between…
- the Roman or civil system.
- the Germanic or canon system : current standard in Catholic church regulations and
English common law.

Question 24

In the civil system

Answer 24

Kinship degrees are calculated by adding the number of links between relatives considered.
● Lineal descendant : person who is a blood relative in the direct line of descent.

● Collateral descendant : person who is a blood relative in the indirect line; i.e., “up” to
one ancestor, and then “down” again.

Question 25

Marriage

Answer 25

the legal union of a couple as spouses. It’s a legally sanctioned contract between 2
individuals, and entering into a marriage changes the legal status of both parties, giving
them new rights and obligations.

Question 26

European Court of Human Rights (artt. 8, 12, 14 ECHR and Prot.1, 1st art.)

Answer 26

According to the ECHR’s case-law, the European Convention on Human Rights does not
impose an obligation on Contracting States to grant same-sex couples access to marriage.

=> Legal requirements for a legal marriage are consent from both parties, a legal marriage
age, and absence of marriage prohibitions.

=> Most western countries, including the member states of the European Union, do not
recognize polygamous marriages, and consider bigamy a crime. However, this a Western
point of view.

Question 27

consent of both parties

Answer 27

in absence of consent there is a sham, simulated or fake marriage. One entered
purely for the purpose of gaining a benefit or other advantage arising from that
status.

Question 28

legal marriage age

Answer 28

UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration
of Marriages. The member states to the convention are required to establish a
minimum marriage age by law. In the European Union, 18 years of age without
parental consent. With parental consent the marriageable age varies.

Question 29

marriage prohibitions

Answer 29

relationship by blood, affinity or fosterage creates a bar to marriage.