Cohabitation Research Papers - Academia.edu (original) (raw)

Family not founded on marriage is specifically characterized as respect marriage. The choice to create a family without marriage needs to be grasped as the will of avoiding the specific regulation of marriage.
The social formations which originate need only to be submitted to a solidaristic principle, according to what is prescribed in article 2 of the Italian Constitution. Nevertheless, the topic of family not founded on marriage is often related to atypical couples not admitting to marriage.
We have to avoid that, dealing with that subject, we choose solution in contrast with freedom of person and exigency of guaranteeing the full development of personality into the family. In that way, it’s useful to reflect over the possibility of a «redefinition» of knowledge of marriage, so that it can include also atypical couples as well as it can distinguish itself from other form of cohabitation without marriage.
To correctly configure such a perspective of redefinition, we have to collocate properly the knowledge of marriage in an anthropological and sociological perspective.
In that way, we can recognize the multiplicity of ancestral family forms and marriage forms, and their later evolution. In the same perspective, we have to consider the historical specificity of cohabitation and of family not founded on marriage, as well as their recent evolution.
The necessity of a «redefinition» of the knowledge of marriage is today particularly strong; the debate over that is quite developed in USA.
In such a legal and cultural context, even now – paradoxically - characterized by the importance of religion in lawmaking process, one of the main objections deals with the hypothesis of the former configurability of knowledge of marriage into the religious sphere; in that perspective, the same term «marriage» should be referred to as a determinate cultural ambit, as well as it should be configured as an absolute, immutable, ahistorical element. This objection doesn’t appear binding enough. If we have an excursus over the scriptural assumption who originated the religious knowledge of marriage, in Western society, we can see the evolution of that knowledge, as well as its non-univocity.
Besides, if we consider the enforcement of knowledge of marriage in the early Western society, we realize how important Roman family law has been for the development of Christian tradition.
About the question of a possible «redefinition» of knowledge of marriage, «new natural lawyers», who support tradition, and «liberals», favourable to changing, are deeply in discussion in the United States of America. There is also a minoritarian group, the «progressive critics», who contest the same idea of marriage and the related special rights; they indeed wish an equalization of any kind of family, founded or not founded on marriage.
The necessity of considering the debate dealing with the hypothesis of «redefinition» of knowledge of marriage in contexts different from our legal system is originated by the comprehension of the importance of a comparative perspective in family law. In fact, all phenomena dealing with family are, nowadays inserted in a globalizing dynamic.
A theme, in particular, can be considered as paradigmatic in our research: the possibility of a formal recognition of same-sex couples. It seems to represent – when that kind of unions are admitted in the form of «marriage» - the «point of criticality» respect the traditional knowledge of marriage.
The specific field of research is focused on common law, civil law, and mixing system Countries.
So that, our analysis deals with the United States of America, where decisions over same-sex marriages are getting more and more importance in the last years, as well as scholars started being deeply involved into that subject. It deals also with Spain, a Country quite similar to ours, but where, in a very short period, it has produced a deep, radical change in family law, admitting same-sex marriage and divorce without separation.
The analysis refers also to South Africa, where we can observe a surprising variety of marriage forms. Beyond «common law marriage», a marriage originated from Western legal system, they have the «customary marriage», a traditional, polygynous marriage, and the «civil union marriage», that allow both opposite-sex and same-sex couples to decide if to denominate their union as «marriage» or «civil partnership», with the same legal effects, independently from the denomination.
In the Italian context, before considering a hypothesis of «redefinition» of knowledge of marriage, according with what is happening in the other legal systems we considered, it’s required that we configure marriage, as well as family not founded on marriage, properly, as prescribed by the Italian Constitution. These social formations need to be regarded according with the application of solidaristic value and centrality of the person. Also the European Union’s prescriptions have to be considered.
Only later, having all the elements required, it will be possible to configure the eventuality of the introduction of same-sex marriage, as several lower Courts referred to the Italian Constitutional Court to decide about on the matter.