Family Matters

Laws and regulations

‘Every man or woman, regardless of race, nationality or religion, has the right to marry and found a family.’ Article 16 of the Universal Declaration of Human Rights goes on to declare that families are the fundamental group unit of society and therefore can count on being protected. But who decides what constitutes a family?

If this exhibition demonstrates anything, it’s that the concept of ‘family’ is open to interpretation and has evolved throughout history. And as norms, culture and politics changed, so did laws regarding marriage, divorce, adoption and social benefits.

In medieval Europe, marriage came under the jurisdiction of canon law. Essentially, a marriage was regarded as valid when two parties stated they took one another as wife and husband. These unions were usually formalised by religious authorities, which became an important factor in societal views on what constitutes a family. To this day, many Europeans choose to confirm their vows in a religious ceremony.

Although prior to the 20th century, marriages were often the purview of religious authorities, they were also legal affairs. Many religious traditions had strict rules and regulations relating to marriage.

One of the many changes that occurred in the 20th century is the standardisation of civil marriage and the advent of the civil ceremony. Today, countries such as France, Belgium, Germany and the Netherlands don’t legally recognise religious marriage ceremonies. In other countries, such as Poland, Italy and Slovakia, couples have the choice between civil or religious ceremonies. In Greece, provisions for civil marriage did not come into effect until 1982.

The standardisation of the civil ceremony had a great impact on what was henceforth a ‘legally recognised’ family. Civil ceremonies allowed for interfaith marriage, paving the way for increased rights for women to decide who and when they wanted to wed.

The Soviet Union used the concept of civil marriage to reinforce equality between the sexes, while encouraging young people to marry and procreate. In effect, the formation of a family was propagated as a means to gain access to better housing and other benefits.

As states came to legislate marriage they also made provisions for dissolving marriages and legalising divorce. Divorce has always been a complicated legal and practical issue. The codification of divorce laws in the 20th century didn’t entirely solve the matter, as it went directly against doctrines in certain churches and opened new questions about the custody and adoption of children.

Although marriage as the way for founding a family continued to be the norm in most European countries, this idea was challenged in the 1970s as part of the movement towards gender equality. Many young couples started to eschew state and religious ceremonies, preferring civil partnerships. Laws establishing civil partnership as an alternative to marriage also paved the way for same-sex partnerships and eventually same-sex marriage. On 1 October 1989, Denmark became the first country in the world to conduct same-sex civil partnerships and set a precedent for greater acceptance of homosexuality.

Furthermore, the European Court of Human Rights ruled in 1999 that not allowing a parent custody of their biological child solely on the grounds of sexual orientation is discriminatory and in breach of the European Convention on Human Rights. Yet the battle for recognition of LGBTQ+ families in Europe is far from over. Same-sex couples, LGBTQ+ parents and their children still face discrimination, insecurity, bureaucratic burdens and legal obstacles.

Adoption is also an important aspect of the legal perspective on what is considered ‘a family’. Adoption became legal at different times in different parts of Europe, with Germany (1900), Sweden (1917), France (1923), England and Wales (1927) and Italy (1942) as flag bearers. The frequency of international adoptions significantly rose after World War II, only to fall in the 1970s, reflecting pan-European demographic trends and changing norms: on the one hand, societal acceptance of children born outside of the marriage grew, on the other contraceptives became more widely available. As a result, the sheer number of children given up for adoption substantially declined.

Besides matters concerning marriage, divorce and adoption, 20th-century family law has also focused on social security laws. Considerations as to who forms part of a family are absolutely vital considerations in these. Taking the lead in Europe was Britain, which installed provisions for pensions at age 70 in 1908 and unemployment insurance in 1911. Unemployment insurance was subsequently introduced in Austria and Belgium (1920), Switzerland (1924), Germany (1927) and Sweden (1940).

Major innovations in social insurance after World War II include the protection of pensions by linking them to inflation rates, equal rights for men and women, special provisions for one-parent families and the extension of the health-care rights to all citizens.

Having become much more inclusive in the past 100 years, social security legislation still has inequalities to conquer. In particular lesbian, gay, bisexual or transgender partners and parents aren’t as yet entitled to provisions accessible to opposite-sex couples and therefore left unprotected when dire times strike.