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FR / EN

No 5 - 2006

Évolution des normes juridiques et nouvelles formes de régulation de la famille
Directed by Alain Roy




Introduction
Alain Roy

The socio-economic changes that have taken place in most Western societies in recent decades have profoundly transformed the foundations and structures of the family. Freed from the firm grip of religion, the family has become privatized. In contact with today’s dominant egalitarian values, it has become more democratic (Giddens, 1992). The homogenous, highly hierarchical family that once prevailed has been replaced by numerous configurations whose social legitimacy is no longer in doubt. From the married or de facto married couple to the couple with or without children, to reconstituted, single-parent or homoparental families, conjugal and family ties now intersect with a multitude of models that legislators have tried to reflect. Since the end of the 1970s, family law reforms have followed one another at a staggering pace, both in Quebec and in Europe. Several legal institutions, including those that seemed immutable, have undergone fundamental reorganization.

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New forms of regulation of the family in Canada and Quebec: avant-gardism and marginalization
Marie-Blanche Tahon

This text describes new Canadian and Quebec legislation as regards civil marriage and filiation. It focuses primarily on Quebec law, which has introduced a new system, that of original bimaternal filiation. However, it does not make room for original bi-paternal filiation since the Civil Code (Art. 541) specifies that: « Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null. » In other words Quebec law creates a state of inequality as concerns male and female homosexuals. When it implemented the new rules of filiation, it avoided the question of multiparentality, which now affects nine out of ten homoparental families and more and more heterosexual families. A fundamental revision of family law with a comprehensive perspective now needs to be undertaken.

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A new parenting oversight?
Benoit Bastard

The couple and the family are two institutions that have become difficult to rely on. As a consequence, it is the notion of parenting that has become central to the organization of private life, with the norms that apply to parental roles becoming more demanding and standardized while, concurrently, the couples lay claim to diversity and autonomy. To illustrate this argument, the author discusses divorce in France and the requirements of “co-parenting.” He also brings up the issue of mistreatment and expectations with regard to parental authority. He argues that the traditional “family oversight” approach is giving way to a new system of “parenting oversight.”

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Children's rights, parents' rights
Paola Ronfani

The most recent sociological literature on contemporary families stresses that relationships between parents and children are characterized by emotional communication, intimacy, and the individualization of the child. They also underline the complexity of these relationships as concerns the parental role, where the mother is no longer the sole model for expressive behaviour or the father the sole model for instrumental behaviour. As for the child itself, it should be noted that if it is to achieve
self-realization, it must be able to experience an ongoing relationship of mutual affection with both parents and the latter must recognize their child’s dual identity as a person who at once needs to be independent and to rely on their protection – as the situation demands. Sociological literature describes the contemporary family as individualist and contractual, but the child’s filiation is not seen as something fragile and rescindable: it is intended to survive spousal breakdown. Moreover, representations of filiation underline the fact that there is no particular need for congruence between the role of genitor and that of parent, as is made clear by the co-parenting that characterizes both the blended family and adoption. Current family legislation in western countries is attempting to regulate these complex situations by invoking the best interests of the child, but it also recognizes the subjective rights of children and parents. And this opens up potentially conflictual scenarios bringing into play all these rights, which are both interdependent and tangled together, since it is the parents who are responsible for the exercise of these rights – the right to protection, but also the right to freedom – enjoyed by their children. In order to find a way through this maze, juristic culture has recently developed the perspective of relational rights, a development that has significant implications both for the model and for the practice of family justice.

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The legal Category of Adultery Since the French Reform of July 11, 1975: The Contemporary Redefinition of Marriage as an Egalitarian and Private Union
Veronika Nagy

With a view to throwing light on contemporary changes in marriage and divorce as perceived through the prism of adultery, the most classic of marital sins, the present article examines the way in which the French divorce statute of July 11, 1975 has dealt with the juridical category of adultery, and what jurisprudential decisions have been handed down since that reform. It would appear, for example, that the legal abolishing of the asymmetry that existed between male and female adultery, the removal of the intrinsic notion of tort attached to adultery, the relative slackening of the duty of fidelity and the importance given to the nature of the circumstances surrounding the adultery, together with the interpersonal relationship between spouses, who are no longer split so absolutely into « the guilty one » and « the victim », all suppose a redefinition of marriage as an egalitarian and private union.

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Kinship, Parenthood and Filiation: Crucial Questions for the Future of our Children and our Societies
Renée Joyal

The recent emergence of unusual family situations and calls for their recognition entails a re-evaluation of the concepts of parent, parenthood and filiation. What is filiation? What meaning should it hold? And how does « parent » differ from « filiation »?* As for parenthood, how does that fit in with the notions of « parent » and « filiation »? The present text considers these questions from the child’s standpoint. It provides a picture of the realities and tendencies that are attached to the subject in the western world, and more particularly in Canada.

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Some Normative Issues Concerning the New Realities of International Adoption
Chantal Collard, Carmen Lavallée, Françoise-Romaine Ouellette

In a recent comparative and interdisciplinary research project (anthropology and law) carried out jointly by the Quebec Secretariat for International Adoption and the Association des centres jeunesse du Québec and directed to a consideration of legislative adjustments to the new realities of international adoption, we looked at juridical standards and practices in a number of adopter and adoptee countries in order to identify the ideas, standards and values peculiar to each one, together with their principal impacts. The present article describes the main issues involved and brings to the fore those that remain to be settled despite legislative adjustments, i.e. the problems of conciliating different national laws and intra-family adoption.

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The Construction of Individuality and Intergenerational Relationships Among Young Quebec Adults Living with their Parents
Maxime Bélanger, Anne Quéniart

This article deals with the question of young adults who, having completed their education, now hold down a job, while continuing to live at home. We begin by going back over the main theoretical aspects of this research project, and providing a summary of its methodological approach, following which the article focuses on what determines these young people to remain with their parents and the impact that this lifestyle has on their self-definition and the way in which they perceive themselves, or not, as independent beings. The last part of the article deals with the major elements that contribute to the promotion of the individualization of these young people, that is to say, with their ability to develop as autonomous adults within a relationship that involves some level of dependency and compliance with certain parental norms, and that includes obstacles liable to militate against such autonomy.

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Transformations of the Political and Legal Regulation of the Family: Romania in the Communist and Post-Communist Period
Ana Gherghel

In communist regimes, the family has been a nec plus ultra target for State political intervention. State control of private life was seen as one way of enforcing a new and, hopefully, homogeneous, social organization. The present article offers a synthesis of what has been achieved in the way of population-related policies and, more generally, of the political and legal control of the family in a communist system, with Romania as the entity under analysis. We will then look at the way in which public intervention in family affairs was reconfigured during the transition period of democratization begun in 1990.

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Decision-Making Factors Related to Biological Status and Procreation Among Lesbian Future Mothers
Annie Leblond de Brumath, Mélissa Fortin, Danielle Julien, Christiane Fortier

The present study aims at examining the factors associated with the choice made by lesbian couples opting for motherhood as to which partner will carry the child and what form of procreation will be selected. Semi-structured individual interviews were carried out amongst fifty nulliparous couples (25 couples), 56% of whom are looking to an anonymous genitor and 44% to a known genitor. An analysis of the content of the interviews indicates that there are more future biological mothers than there are comothers who evoke a childhood that included maternally oriented presumptions and play activities linked to motherhood; and there are more future biological mothers who were looking forward to bearing a child when adult. On the other hand, a larger proportion of future co-mothers admit to spousal motives for becoming a parent and are the subject of negative reactions from their friends as regards their parental project. Our results show also that though these couples may wish for equality as regards parenting, they nevertheless anticipate specialized parental roles and a prioritizing of the biological link with the child. The current working conditions of the future mothers also impact on their anticipated biological status. Finally, we explored the reasons behind the choice of the procreative instrument. This study suggests that the adoption of Quebec provincial statute 84 has affected the decisions made by lesbian couples as to the management of their pre-partum parental roles.

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