Family Law by Ashaba-Ahebwa Mark

Topics: Marriage, Common law, Family law Pages: 28 (9025 words) Published: February 17, 2013


1.Family as an institution
2.History of the Family as an Institution
3.Historical Backgrounds of Family law in Kenya.

Family as an Institution:

In one social context a family may refer to a man and a woman who share a common household. In another, it is defined as all persons who share blood relations. In others, it is defined as all persons who share a household. In others still it means all the members of a household, including parents and children with perhaps other relations, lodgers and even servants.

Legally, the term family is a restricted concept. There are certain formal pre-requisites that have to be met and the main one is a marriage ceremony. In law a family is created when families enter into a legally recognised marriage. The law also restricts the right to terminate that legal status. The family is registered because it serves a number of purposes in society.

1.It is the basic component of a society organisation; Article 16 of the Universal Declaration of Human Rights. 2.It is the basic economic unit of society that is most productive activities take place within the family set up . 3.The family setup provides for a framework for the parties to have satisfactory sexual expression. 4.It guarantees perpetuation of society through the receiving of offspring. 5.It provides a framework for companionship between the members of that family.

1.It seeks to define status between the parties in that family i.e. it defines what rights a member of the family can claim over the other or over the other’s property. Altering the status of parties in the family. 2.A remedial role; that is it serves to protect certain weaker members of that family e.g. children. On termination of a family relationship there are certain members who may need protection especially economic protection. Note. The trend now is that not all family relationships are created by marriage ceremonies such as cohabitation, single parents. The law has developed to recognise some of these relationships.

Major functions of family law


The trend now is that not all family relationships are actually created inside a marriage relationship. Some of the developments in law have been to deal with these issues, under common law and equity there is recognition given to cohabitees. Children born out of marriage also acquire.

Family law as an institution also has a history.

Engels:The origins of the family, Private Property and the state. In this book the author states that the institution of the family has not existed for all times and they say that relating to the institution of the family there was an ancient primitive stage of promiscuity where there were no restrictions as regarding sexual relations and it was a free for all. The authors have met criticism for alleging this fact but this points to an earlier stage when there was no family existing. They then say that the family developed along four main stages

1.Consanguine Family;
2.Punuluan Family
3.Pairing Family
4.Monogamous Family

Consanguine and Punuluan Families are based on group marriages and the pairing and monogamous family and at this stage the society tries to disassociate itself from group marriages.

Engels says that marriage groups were separated according to generations so that you find that one generation consisted of husbands and wives who could relate so long as they belonged to the same generation. Parents and child could not relate. Remnants of this type of marriage at the time he was writing in the early 19th Century could still be found among some Hawaiian tribes.

In the Punuluan stage brother and sister were excluded from sexual relations. In the consanguine family so long as you belonged to the same generation you could have sexual relations. The Punuluan type of society was found among Indian tribe called the...
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