§ 5.2 Family

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 5.2 FAMILY

§ 5.2-1 Origins of the Family and Family Law

In the English language, the word family comes from the Middle English familie, and from the Latin familia. The term is defined as a household or a group of persons living under one roof, usually of common ancestry or adoptive. See Merriam-Webster Dictionary, < www.merriam-webster.com/dictionary/family >. Because this leaves open the precise nature and definition of "the family," the term must be clearly defined.

Therefore, governments, of either a secular or religious origin, have historically defined family and marriage as the key integrative factor in the relatedness of persons.

The United States is a secular society, composed chiefly of immigrants who bring with them many religious traditions. But religion, religious beliefs, and religious principles of law may not be embraced in the governance of federal or state polity. Government is more inclined to define family by functional means. A prime example of this is federal-benefits law regarding taxation and immigration. In approaching the analysis of the government's role in defining family, one must distinguish the definition of family from the definition of marriage. Typically, government eschews functional definitions of marriage, as it is heavily legislated by both the state and federal governments.

§ 5.2-2 Law of the Forum or Domicile

In the United States, it is generally the law of the party's domicile or law of the forum that governs family and marriage. Eugene F. Scoles, et al., Conflict of Laws 630 (4th ed 2004) (citation not verified).

Oregon applies the law of domicile in its courts. In family law, when a judicial decision is to be made, the law of where the person is domiciled is seen as the most salient connection. There is identity of "forum and applicable law," and, therefore, few problems involving conflicts of laws. Scoles, Conflict of Laws at 630.

The individual states of the United States generally apply their state law both when a legal action is brought in any state and when legal relationships need to be determined in an administrative or other executive branch function. Marriage and divorce are considered matters reserved to the states rather than to the federal government. Sosna v. Iowa, 419 US 393, 404, 95 S Ct 553, 42 L Ed 2d 532 (1975). Whether any state executive branch agency will accept another definition of family, such as in the context of awarding a state benefit, is usually a matter of an administrative agency rule promulgated under an enabling statute.

Whether a state court will recognize another solemnized marriage or a family as defined by the law of another country in a legal action is governed by a treaty or the exercise of comity. The United States is not a state party to the Hague Convention on the Recognition of Divorces and Legal Separations (June 1, 1970) (available at < www.hcch.net/en/instruments/conventions/full-text/?cid=80 >).

§ 5.2-3 Other Types of Law Defining Family

Below are some common types of law that define family in other countries and legal systems. These laws will not be applied in Oregon courts (see § 5.2-2), although judgments and orders based on these laws may be recognized in Oregon.

Personal law. This is the law of a community in which a person was born. See Walter Raeburn, Dispensing with the Personal Law, 12 Int'l & Comp L Q 125 (1963). The law of Oregon does not recognize this as a rule. It may be appropriate in a country with distinct ethnic or religious populations to allow the limited recognition of personal law. For example, in India, a Muslim will have Muslim family and guardianship laws apply even if he or she is before a court in a Hindu state. See Farah v. Farah, 429 SE2d 626 (Va Ct App 1993) (Virginia would not recognize a purported Pakistani marriage when the parties married under Muslim personal law, by proxy, in the United Kingdom).

Law of nationality. This may have two meanings, one being the law concerning the acquisition, loss, restoration, and revocation of legally being a national of country X. See, e.g., Nationality Law of the People's Republic of China (effective 1980), < www.china.org.cn/english/LivinginChina/184710.htm >. The second meaning has to do with choice of the domestic substantive law in a particular area. For example, when determining capacity or incapacity of a person, in some jurisdictions the law of the country where that person is a national may govern. See, e.g., Conflict of Laws Act, BE 2481 (1938), part 2, Status and Capacity of a Person, law of Thailand, < http://thailaws.com/law/t_laws/tlaw0063.pdf >; see also Alain Cornec and Julie Losson, French Supreme Court Restates Rules on Jurisdiction, Recognition and Enforcement of Foreign Decisions in Matrimonial Matters: A New Chance For Old Cases, 44 Fam L Q 83 (2010) (reporting on a move away from the interpretation of French law that led to a de facto law of nationality).

Religious law or doctrine. This is similar to personal law, in that the "community" from which a person originates may be a religious community. The law of marriage and divorce in this context is discussed in § 5.4-8(c).

Functional law. Oregon law does not allow the formation of a common-law marriage in which a couple is considered to be married because they have lived together for a certain amount of time. However, such a marriage formed elsewhere may be recognized in Oregon.

Private agreements. Although Oregon recognizes these agreements regarding marriage-like arrangements having to do with money and property (Beal v. Beal, 282 Or 115, 577 P2d 507 (1978)), it is not required to do so concerning children. See 2 Family Law ch 15 (OSB Legal Pubs 2013). For example, a marital settlement agreement recited on the record and approved is enforceable. In re Marriage of Lynch-Kirby & Kirby, 220 Or App 188, 193, 185 P3d 494 (2008). The court will...