Article by Katherine Connell-Thouez
In the civil law the family has traditionally been defined in relation to marriage. For centuries the institution of marriage has provided an official and immutable structure for joining couples for life ostensibly to give birth to and raise children.
Marriage creates rights and obligations which are owed between spouses and between parents and children. Principal among these are the alimentary obligations and the rights and obligations flowing from the notion of parental authority.
Parental authority and alimentary obligations are themselves complimentary features of the general obligation of assuming the care of family members and more particularly the children of the couple. Parental authority involves the exercise of rights and obligations by parents in the care, both moral and material, of their children. The alimentary obligation is the financial obligation of support owed by parents to children, by spouses to their consorts and, to a lesser extent, by spouses or children to dependent relatives in need.
Thus, marriage, analyzed in terms of the obligations which it creates, may be described as a structure designed primarily for child care. To the extent that a legal system enforces the permanence of marriage, it recognizes the importance of and even gives primacy to the obligation to care for children over other societal values.
The legal significance of marriage has changed radically, however, especially within this century. The increasing recognition of human individuality and equality of rights between men and women has resulted in an evolution of this institution from a virtually immutable status to one which can be dissolved by the mutual agreement of the spouses. With our heightened perceptions regarding human rights it is no longer possible to enforce the nonfinancial obligations of marriage: the obligations of respect, fidelity, succour, and assistance. As a result, the function of child care is often left to be regulated by the institutions of parental authority and alimentary obligations without the benefit of the unifying superstructure, which was marriage, when the parents divorce before the majority of the child or when they choose not to marry.
Moreover, the study of recent developments in the areas of parental authority and alimentary obligations vividly illustrates the complex and often competing values of our society regarding child care. On the one hand, we recognize the importance to society of providing children with a stable, loving and individualized home environment where they may be healthy and where they may mature into integrated and responsible members of our social order. On the other hand, our value system gives a very high level of importance to the recognition of human individuality and equality of rights. The result is a chaotic development of the law with respect to child care, which often neither promotes nor protects the interests of children.
In view of the profound changes which have taken place in the institution of marriage, the necessity for a fundamental reevaluation of the family unit in terms of both its goals and its structure becomes increasingly compelling. Indeed, the time has come to redefine the family in terms of its primary sociological function: the protection and care of children.
In the past decades, we, as jurists working in the area of family law, seem to have lost our sense of direction. Certainly, the effect of our activities has often been to treat the many and varied problems regarding the family in a piecemeal fashion, creating new conflicts as we attempt to remedy the old ones. Let us, then, try to reverse this trend. We will study two institutions that assure the care of children in a civil-law system, parental authority, and the alimentary obligation to see if we may resolve the special problems each one presents in a way that contributes to a coherent definition of the family as a viable social unit. The analysis begins with an historical perspective of the family unit and the place and purpose which alimentary obligations and parental authority have occupied within that context.
About the Author
Katherine Connell-Thouez. B.A., J.D. (LL.B.), D.E.S., Docteur en droit; Member of the Louisiana Bar; Member of the Quebec Bar; Member of the McGill Centre for Medicine, Ethics and Law.
Citation
60 Tul. L. Rev. 1135 (1986)