Comparative Family Law, Korean Family Law, and the Missing Definitions of Family
Roy Partain. "Comparative Family Law, Korean Family Law, and the MIssing Definitions of Family". 홍익법학 (HongIk University Journal of Law). June 2012. Vol. 13. No. 2.
34 Pages Posted: 20 Aug 2012 Last revised: 6 Sep 2012
Date Written: June 30, 2012
This article uses comparative law to analyze the concept of ‘family’. In particular, the research focuses on how family is defined when a family group assembles outside of a nuclear marital family. The article discovers that ‘family’ is rarely defined outside of the concept of marriage in modern legal codes. That "family" is rarely defined per se requires additional legal scrutiny in the context of providing for non-traditional nuclear families.
A definition of "family" can be developed from the material found in family law. Eight characteristics and identifying behaviors of families can be found in the analysis of family law. These eight concepts are used to rebuild a potential definition of family that does not require the act of marriage.
This article proposes that family law should include a parallel definition for families that do not meet current marital definitions of family. This article does not advocate changing current marriage codes; it merely suggests adding room for non-nuclear families in family law. These other, non-nuclear families deserve legal support and recognition. It is time for family law to recognize that all families need legal protection and legal affirmation as families.
The reason to focus on family outside of the concept of marriage is that many family-type groups today fulfill the role of family life without legal recognition. These families serve broader societal goals of raising children, of providing for the elderly, and of sharing the burdens and responsibilities of life in a small group setting. Family law should extend the legal notion of family to include a wider array of options for non-nuclear families. These types of families are all ‘normal’ families in some sense of the idea of family, but they may simply lack two central ingredients: marriage and a nuclear spousal pair.
These types of families should have as much legal right to formally exist as families based in nuclear marriage and sexually-based procreation. Specifically, there should be a legal entity called a 'family' that serves a small group of individuals living in some form of interdependency under a common roof. The basic argument is to provide a parallel option for these types of alternative families alongside the traditional marriage-based family option.
Keywords: family law, alternative families, affinity, civil code, divorce, elderly care
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