Prohibited degree of kinship: Difference between revisions
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{{As of|2010|2}}, 30 U.S. states prohibit most or all marriage between first cousins, and a bill is pending in Maryland that would prohibit most first cousins from marrying.<ref>{{cite news|last1=McGlothlen|first1=John|title=Maryland lawmaker: Ban first-cousin marriages as unsafe|url=http://www.thegazette.com/2010/02/18/maryland-lawmaker-ban-first-cousin-marriages-as-unsafe|work=The Gazette|date=February 18, 2010|archive-url=https://web.archive.org/web/20161129225938/http://www.thegazette.com/2010/02/18/maryland-lawmaker-ban-first-cousin-marriages-as-unsafe|archive-date=2016-11-29}}</ref> Six states prohibit marriages between first cousins once removed.<ref>[http://www.slate.com/id/2064227/ The Love That Dare Not Speak Its Surname]</ref> Some states that prohibit cousin marriage recognize cousin marriages performed in other states.<ref>{{cite book |title=Why marriage matters: America, equality, and gay people's right to marry |last=Wolfson |first=Evan |year=2004 |publisher=[[Simon & Schuster]] |isbn=978-0-7432-6458-7 |page=151 |url=https://books.google.com/books?id=u16ZRu1LVwUC&pg=PA151}}</ref> |
{{As of|2010|2}}, 30 U.S. states prohibit most or all marriage between first cousins, and a bill is pending in Maryland that would prohibit most first cousins from marrying.<ref>{{cite news|last1=McGlothlen|first1=John|title=Maryland lawmaker: Ban first-cousin marriages as unsafe|url=http://www.thegazette.com/2010/02/18/maryland-lawmaker-ban-first-cousin-marriages-as-unsafe|work=The Gazette|date=February 18, 2010|archive-url=https://web.archive.org/web/20161129225938/http://www.thegazette.com/2010/02/18/maryland-lawmaker-ban-first-cousin-marriages-as-unsafe|archive-date=2016-11-29}}</ref> Six states prohibit marriages between first cousins once removed.<ref>[http://www.slate.com/id/2064227/ The Love That Dare Not Speak Its Surname]</ref> Some states that prohibit cousin marriage recognize cousin marriages performed in other states.<ref>{{cite book |title=Why marriage matters: America, equality, and gay people's right to marry |last=Wolfson |first=Evan |year=2004 |publisher=[[Simon & Schuster]] |isbn=978-0-7432-6458-7 |page=151 |url=https://books.google.com/books?id=u16ZRu1LVwUC&pg=PA151}}</ref> |
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=== Russia === |
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{{See also|Legality of incest#Russia}} |
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As of 2023 no formal federal law in the Russian Federation imposes any penalty for marriages between close relatives, but in practice it's hard if not impossible to get into such a marriage. Under Article 14, of the [[Family Code of Russia|Family code of the Russian Federation]] marriages to the close relatives (determined by a direct bloodline) are prohibited (still no penalty) however.<ref>{{Citation |title=THE FAMILY CODE OF THE RUSSIAN FEDERATION |url=http://www.jafbase.fr/docEstEurope/RussianFamilyCode1995.pdf |access-date=July 12, 2023}}</ref> In modern Russia it's also uncommon for the first cousins to marry each other. The exact rules depend on the traditions of the [[Federal subjects of Russia|concrete regions]] and may vary despite the formally written law. In legal practice as of 2022 at least in one case Russia Supreme Court nullified a marriage between father and daughter.<ref>{{Cite web |date=2022-12-20 |title=Сменила документы и вышла замуж за отца. Четыре свадьбы и суд, который признал браки недействительными |url=https://v1.ru/text/family/2022/12/20/71911520/ |access-date=2023-07-12 |website=v1.ru - новости Волгограда |language=ru}}</ref> |
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Since the 13th century a ban on marriages between close relatives was formalized by the [[Russian Orthodox Church]] in [[nomocanon]] referred as [[Kormchaia]]. Kormchaia stipulated written rules on how to determine which marriages were invalid. Generally all marriages that resulted in crossing bloodlines were prohibited.<ref name=":0">{{Citation |last=Sakharov |first=I. V. |title=О функционировании брачного права Русской православной церкви, относящегося к бракам между родственниками: Насколько оно соблюдалось на практике в синодальный период ее истории? |url=https://nlr.ru/nlr_visit/dep/artupload/media/article/RA2425/NA18480.pdf |pages=23 |publication-date=2017 |trans-title=About functioning of Marriage law in Russian Orthodox Laws related to marriages between relatives. How well it was followed in practice in sinodal period of its history. |access-date=July 12, 2023}}</ref> |
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In terms of sexual relationships and intercourse in rural Russia the practice of ''[[Snokhachestvo]]'' was widespread in 16th and 18th century. Over time it gradually waned because of the families becoming more [[Nuclear family|nuclear]]. |
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Kormchaia was used up until 1810 when the [[Most Holy Synod]] issued a [[Government circular|circular]] that temporarily liberalized rules. In practice such rules were enforced loosely, if at all, and were easy to circumwent. The [[Old Believers|old believers]] didn't follow them either. Peasants often weren't educated enough to identify their relationship towards others so married their relatives.<ref name=":0" /> |
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In [[Russian Empire|Imperial Russia]] up until 1917 all marriages were mostly ceremonial and religious ones. Such marriages were the only ones considered "legal" (no formally established institution existed for recording such marriages by that time).<ref name=":0" /> Despite the power and strong opposition from the [[Russian Orthodox Church]] in practice marriages between first, second, and cousins were quite widespread among [[Russian peasantry]] according to one study. There were also cases of such marriaged between [[Russian Royal Family|royal family]] and [[Russian nobility|nobility]] during this time, with some marriages being nullified.<ref>{{Cite web |title=Запрет на браки с двоюродными: Кто и как обходил его в России |url=https://kulturologia.ru/blogs/070121/48676/ |access-date=2023-07-12 |website=Культурология}}</ref><ref name=":0" /> |
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==Jury service== |
==Jury service== |
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Revision as of 17:55, 25 July 2023
In law, a prohibited degree of kinship refers to a degree of consanguinity (blood relatedness), or sometimes affinity (relation by marriage or sexual relationship) between persons that makes sex or marriage between them being illegal.
An incest taboo between parent and child or two full-blooded siblings is a cultural universal. Taboos against sexual relations between individuals of other close degrees of relationship vary.
Marital prohibitions
China (Mainland)
Civil Code of the People’s Republic of China Article 1048 stipulated that persons who are lineal relatives by blood, or collateral relatives by blood up to the third degree of kinship are prohibited from being married.
According to the official explanation, the calculation of degree of consanguinity in China is similar to Roman civil law with some difference. Aforementioned "collateral relatives by blood up to the third degree of kinship" include:
- full and half siblings
- uncles and niece; aunt and nephew
- first cousins (which is counted as fourth degree of kinship in Roman civil law tradition)
In Imperial China (221 BCE to 1912), marriage between first cousins was partially allowed. Marrying the child of one’s paternal aunt, maternal uncle or aunt was generally accepted in Chinese history during most of China’s dynastic era. However, among other exceptions, marrying the child of your paternal uncle was strictly prohibited, as such a marriage was seen as one between siblings as each of the couple bore the same family name.[1]
Medieval canon law
Roman civil law prohibited marriages within four degrees of consanguinity.[2] This was calculated by counting up from one prospective partner to the common ancestor, then down to the other prospective partner.[3] The first prohibited degree of consanguinity was a parent-child relationship while a second degree would be a sibling relationship. A third degree would be an uncle/aunt with a niece/nephew while fourth degree was between first cousins.[3] Any prospective marriage partner with a blood relationship outside these prohibited degrees was considered acceptable.[3]
The Roman Catholic Church and Eastern Orthodox Church have a long history of marital prohibitions,[citation needed] called impediments to marriage, which limit the marriage of two closely related relatives. Initially, canon law followed Roman civil law until the early 9th century, when the Western Church increased the number of prohibited degrees from four to seven.[4] The method of calculation was also changed to simply count the number of generations back to the common ancestor.[5] This meant that marriage to anyone up to and including a sixth cousin was prohibited. The Fourth Lateran Council of 1215 decreed a change from seven prohibited degrees back to four (but retaining the same method of calculating; counting back to the common ancestor).[6]
Australia
In Australia, the Marriage Act 1961 prohibits a marriage to a direct ancestor or descendant or sibling (whether full sibling or half sibling), including those arising from a legal adoption. Such marriages are void.[7]
England and Wales, and the World-wide Anglican Communion
The 1662 Book of Common Prayer of the Church of England, long used in various forms through a broad swathe of Anglicanism, included a Table of Kindred and Affinity listing the prohibited degrees of kinship within which one could not marry describing in detail the cases in which marriage was forbidden due to consanguinity or marital affinity.[8] The list was enacted by the Marriage Act 1949 which with significant changes continues to apply in England and Wales.[9] The list was cut back by the Marriage (Prohibited Degrees of Relationship) Act 1986, by deleting from the list prohibitions based on affinity relationships, and added to in other respects. Marriages that continue to be prohibited in England and Wales by the 1949 Act are as follows:
| Prohibited to men |
Prohibited to women |
|---|---|
| Mother | Father |
| Daughter | Son |
| Father's mother (grandmother) |
Father's father (grandfather) |
| Mother's mother (grandmother) |
Mother's father (grandfather) |
| Son's daughter (granddaughter) |
Son's son (grandson) |
| Daughter's daughter (granddaughter) |
Daughter's son (grandson) |
| Sister | Brother |
| Father's sister (aunt) |
Father's brother (uncle) |
| Mother's sister (aunt) |
Mother's brother (uncle) |
| Brother's daughter (niece) |
Brother's son (nephew) |
| Sister's daughter (niece) |
Sister's son (nephew) |
The Children Act 1975 added the following prohibitions:
| Prohibited to men | Prohibited to women |
|---|---|
| Adoptive mother or former adoptive mother | Adoptive father or former adoptive father |
| Adoptive daughter or former adoptive daughter | Adoptive son or former adoptive son |
The Marriage Act 1949 also prohibited marriage to the following affinity relations, but these were repealed by the Marriage (Prohibited Degrees of Relationship) Act 1986:[10]
| Prohibited to men |
Prohibited to women |
|---|---|
| Wife's mother | Husband's father |
| Wife's daughter | Husband's son |
| Father's wife | Mother's husband |
| Son's wife | Daughter's husband |
| Father's father's wife | Father's mother's husband |
| Mother's father's wife | Mother's mother's husband |
| Wife's father's mother | Husband's father's father |
| Wife's mother's mother | Husband's mother's father |
| Wife's son's daughter | Husband's son's son |
| Wife's daughter's daughter | Husband's daughter's son |
| Son's son's wife | Son's daughter's husband |
| Daughter's son's wife | Daughter's daughter's husband |
The Marriage (Prohibited Degrees of Relationship) Act 1986 prohibits a marriage to the following, until both parties are aged 21 or over, and provided that the younger party has not at any time before attaining the age of 18 been a child of the family in relation to the other party:
| Daughter of former wife | Son of former husband |
| Former wife of father | Former husband of mother |
| Former wife of father’s father | Former husband of father’s mother |
| Former wife of mother’s father | Former husband of mother’s mother |
| Daughter of son of former wife | Son of son of former husband |
| Daughter of daughter of former wife | Son of daughter of former husband |
The Marriage (Prohibited Degrees of Relationship) Act 1986 also prohibits a marriage to the following:
| Mother of former wife, until the death of both the former wife and the father of the former wife | Father of former husband, until after the death of both the former husband and the mother of the former husband |
| Former wife of son, until after the death of both his son and the mother of his son | Former husband of daughter, until after the death of both her daughter and the father of her daughter |
The Marriage Act 1949 (Remedial) Order 2007[11] accepted the ruling of the European Court of Human Rights and removed the ban on marriage with a former mother-in-law/daughter-in-law.
South Africa
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.[12]
South Korea
In South Korea it had historically been forbidden to marry someone with the same surname and clan regardless of the distance of the relation, but this law was ruled unconstitutional in 1999. Conservative Lutherans also prohibit marriage within close degrees of consanguinity and affinity, even if not specifically outlawed by the state.[13]
Taiwan
Article 983 of the Civil Code stipulates that a person may not marry any of the following relatives:
(1) A lineal relative by blood or by marriage;
(2) A collateral relative by blood is within the sixth degree of relationship. The limit to marriage shall not be applicable to persons of lineal relative within the fourth degree of relationship and collateral relative within the sixth degree of relationship by adoption.
(3) A collateral relative by marriage is within the fifth degree of relationship of a different rank. The marriage prohibitions between relatives by marriage provided in the preceding paragraph shall continue to apply even after the dissolution of the marriage which has created the relationship. The limit to marriage with the lineal relative by blood or by marriage set forth in the first paragraph hereof shall be applicable to persons of lineal relative by adoption after ending of the adoption relationship.
The Judicial Yuan Interpretation No.32 and No. 91 allows marriage between siblings by adoption when the adoption was intended for the marriage. When the interpretation was made, it was not uncommon for parents to adopt a child so that their own child can marry the adopted child when both children have grown up.
Article 968 and 970 of the Civil Code states that "the degree of relationship by blood between a person and his lineal relative by blood shall be determined by counting the number of generations upwards or downwards from himself [as the case may be], one generation being taken as one degree. As between the person and his collateral relative, the degree of relationship shall be determined by the total number of generations counting upwards from himself to the common lineal ancestor and then from such common ancestor downwards to the relative by blood with whom the degree of relationship is to be determined." The line and degree of relationship between relatives by marriage shall be determined as follows:
(1) In regard to the spouse of a relative by blood, by the line and degree of relationship of the person who is married to the said spouse;
(2) In regard to a relative by blood of a spouse, by the line and the degree of relationship between such relative by blood and the said spouse;
(3) In regard to the person who is married to the relative by blood of his spouse, by the line and the degree of relationship between such person and the said spouse.
In short, a person can be considered as being "merged" with their spouse when counting degree of relationship.
United States
1Some states recognize marriages performed elsewhere, especially when the spouses were not residents of the state when married.
As of February 2010[update], 30 U.S. states prohibit most or all marriage between first cousins, and a bill is pending in Maryland that would prohibit most first cousins from marrying.[14] Six states prohibit marriages between first cousins once removed.[15] Some states that prohibit cousin marriage recognize cousin marriages performed in other states.[16]
Russia
As of 2023 no formal federal law in the Russian Federation imposes any penalty for marriages between close relatives, but in practice it's hard if not impossible to get into such a marriage. Under Article 14, of the Family code of the Russian Federation marriages to the close relatives (determined by a direct bloodline) are prohibited (still no penalty) however.[17] In modern Russia it's also uncommon for the first cousins to marry each other. The exact rules depend on the traditions of the concrete regions and may vary despite the formally written law. In legal practice as of 2022 at least in one case Russia Supreme Court nullified a marriage between father and daughter.[18]
Since the 13th century a ban on marriages between close relatives was formalized by the Russian Orthodox Church in nomocanon referred as Kormchaia. Kormchaia stipulated written rules on how to determine which marriages were invalid. Generally all marriages that resulted in crossing bloodlines were prohibited.[19]
In terms of sexual relationships and intercourse in rural Russia the practice of Snokhachestvo was widespread in 16th and 18th century. Over time it gradually waned because of the families becoming more nuclear.
Kormchaia was used up until 1810 when the Most Holy Synod issued a circular that temporarily liberalized rules. In practice such rules were enforced loosely, if at all, and were easy to circumwent. The old believers didn't follow them either. Peasants often weren't educated enough to identify their relationship towards others so married their relatives.[19]
In Imperial Russia up until 1917 all marriages were mostly ceremonial and religious ones. Such marriages were the only ones considered "legal" (no formally established institution existed for recording such marriages by that time).[19] Despite the power and strong opposition from the Russian Orthodox Church in practice marriages between first, second, and cousins were quite widespread among Russian peasantry according to one study. There were also cases of such marriaged between royal family and nobility during this time, with some marriages being nullified.[20][19]
Jury service
United States
Statutes in the U.S. state of Georgia disqualify a juror if that person is related "by consanguinity or affinity" to any party "within the sixth degree as computed according to the civil law".[21]
Virginia rulings in Jaques v. Commonwealth, 51 Va. (10 Gratt.) 690 (1853), stated the long-standing, common-law rule disqualifying a venireman (juror) who is related, within the ninth degree of consanguinity or affinity, to a party to a suit.[22]
See also
References
- ^ Zhaoxiong Qin, Rethinking Cousin Marriage in Rural China, 40(4) ETHNOLOGY 347 (autumn 2001) cited in Laney Zhang, When Were Marriages Between Cousins Banned in China? (13Sep17) https://blogs.loc.gov/law/2017/09/when-were-marriages-between-cousins-banned-in-china/ September 13, 2017 by
- ^ de Colquhoun, Patrick MacChombaich, A summary of the Roman civil law (William Benning and Co., Cambridge, 1849), p. 513
- ^ a b c Bouchard, Constance B., 'Consanguinity and Noble Marriages in the Tenth and Eleventh Centuries', Speculum, Vol. 56, No. 2 (Apr., 1981), p. 269
- ^ Bouchard, Constance B., 'Consanguinity and Noble Marriages in the Tenth and Eleventh Centuries', Speculum, Vol. 56, No. 2 (Apr., 1981), pp. 269-70
- ^ Bouchard, Constance B., 'Consanguinity and Noble Marriages in the Tenth and Eleventh Centuries', Speculum, Vol. 56, No. 2 (Apr., 1981), p. 270
- ^ The History of Medieval Canon Law in the Classical Period, 1140-1234, Ed. Wilfried Hartmann, Kenneth Pennington (The Catholic University of America Press, 2008), p. 377
- ^ "Marriage Act 1961, s 23B".
- ^ Table of Kindred and Affinity
- ^ "Marriage Act 1949 (c. 76)". The UK Statute Law database. Retrieved 30 Aug 2010.
- ^ "Marriage (Prohibited Degrees of Relationship) Act 1986 (c. 16)". The UK Statute Law database. Retrieved 30 Aug 2010.
- ^ "Marriage Act 1949 (Remedial) Order 2007". The UK Statute Law database.
- ^ Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, s. 12.
- ^ Christian Cyclopedia article on Impediments to Marriage.
- ^ McGlothlen, John (February 18, 2010). "Maryland lawmaker: Ban first-cousin marriages as unsafe". The Gazette. Archived from the original on 2016-11-29.
- ^ The Love That Dare Not Speak Its Surname
- ^ Wolfson, Evan (2004). Why marriage matters: America, equality, and gay people's right to marry. Simon & Schuster. p. 151. ISBN 978-0-7432-6458-7.
- ^ THE FAMILY CODE OF THE RUSSIAN FEDERATION (PDF), retrieved July 12, 2023
- ^ "Сменила документы и вышла замуж за отца. Четыре свадьбы и суд, который признал браки недействительными". v1.ru - новости Волгограда (in Russian). 2022-12-20. Retrieved 2023-07-12.
- ^ a b c d Sakharov, I. V. (2017), О функционировании брачного права Русской православной церкви, относящегося к бракам между родственниками: Насколько оно соблюдалось на практике в синодальный период ее истории? [About functioning of Marriage law in Russian Orthodox Laws related to marriages between relatives. How well it was followed in practice in sinodal period of its history.] (PDF), p. 23, retrieved July 12, 2023
- ^ "Запрет на браки с двоюродными: Кто и как обходил его в России". Культурология. Retrieved 2023-07-12.
- ^ Patterson Bank v. Gunter, 588 S.E.2d 270 (2003) 263 Ga. App. 424
- ^ Gray v. Com., 311 SE 2d 409 - Va: Supreme Court 1984
External links
- "Consanguinity" – Catholic Encyclopaedia
- Don't hire the family – Article regarding Texas nepotism statutes, published by the Texas Association of Counties.