Friday, June 10, 2005

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Marriage: The introduction

MARRIAGE: INTRODUCTION .
divorce. right. right. amicable divorce.
There is no legal definition for marriage.
divorce
This can be analyzed as the union of one man and one woman entered into legal form and solemn, to create between spouses and in respect of the unborn, legal status.
divorce amicably
It is to be sustainable in principle and final. However, there can be terminated voluntarily in cases specifically determined by law (divorce) unless its dissolution does for its natural cause: the death of a spouse.
divorce amicably
1) Marriage is different from common law or cohabiting: state of a man and woman living together.
Devoid of legal organization, "cohabitants to pass the law, the law happens to them."
positive law nevertheless recognizes concubinage legal effect, provided, in civil matters, have a certain stability which implies marital community. Thus
: divorce
- As between cohabitants.
* In case of rupture right to compensation if, initially, there were fraudulent seduction by promise of marriage or even consideration of special circumstances that could have caused the breakup of the couple, and in any event, a natural obligation to repair.
* If cohabitants have exercised a trade, the right sees them the existence of a de facto partnership. * Donations
between cohabitants are valid unless unlawful.
* Ability to take certain protective measures in the social field, for example, right at the single wage allowance or entitled to payment of death benefits from Social Security.
amicable divorce
- As between the children.
* The action to establish paternity is possible, if there has been cohabiting during the legal period of conception.
* The parents of children who have recognized may jointly exercise parental authority over the child (Law of January 8, 1993).
divorce amicably
- Relations with third parties.
* If cohabitants themselves as husband and wife, third parties that have provided services in the interest of the false household may continue or unmarried partners.
* If a fatal accident caused by one third to one potential cohabitants for the other to obtain compensation for damage that in turn causes him to death.
divorce. Divorce
2) Marriage is often preceded by the betrothal.
customary but not mandatory: they must not weigh on the principle of freedom of marriage. She did, in themselves, no legal value and therefore do not constitute a contract. But the Court accepts
allocation domage and interests, in case of injury for breach of engagement, or in case of moral or material injury caused by accidental death ocasionné, to another, by a third party (injury indirectly).
It bases its position on the concept of natural obligation to justify itself the right to compensation and the granting of interest-domage transforming into a civil obligation that must be enforced as such.
the law of divorce. divorce. Divorce
3) The marriage brokerage:
Act of June 25, 1985 supplemented by the Decree of 16 May 1990 regulates the brokerage marital contract that pass for compensation with the Marriage agencies of marriage applicants to meet before lead to the achievement of a marriage or a stable union.
The marriage brokerage contract is valid, but must meet formal requirements, advertising and delay. The contractor has a right of withdrawal for 7 days after signing the contract.

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physiological conditions for the formation of marriage

PHYSIOLOGICAL CONDITIONS OF ORDER.

They are on: gender, age and health

1 Sex: necessity of a gender difference. it is expressly provided by any text, but is self-same, one of the ends of marriage being a family and the french law does not admit it between same sex.

2 Age: the spouses must have gotten to the age of puberty is laid down in Article 144 of Civil Code:
- 18 for men.
- 15 years for women.
Exemptions may be granted by the public prosecutor for serious reasons (pregnancy status of women).

3 Health: medical examination certified by the premarital medical certificate must give an intended marriage to the officer of civil status that makes the celebration.
The certificate attests that each future husband underwent a medical examination not older than two months. The result of Medical Examination is not communicated to the other future husband and the certificate has no medical indication (Art. 63 paragraph 2 of the Civil Code)

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psychological conditions for the formation of marriage

PSYCHOLOGICAL CONDITIONS.

They relate to consent and the capacity of the intending spouses.

1 the consent of the spouses (art. 146, Civil Code)

Consent must exist and be free from defects:

a) Existence of consent must be concientes and serious.

b) Will free of defects: the consent of the spouses must be free and integrates (art. 180, Civil Code). It may be stale if:
- physical or moral violence (exercised in response to pressure, and the awe to parents may be a case of moral violence)
- error if there was mistaken identity ( on the physical identity) or essential qualities of the person, eg schizophrenia ... (Article 180 paragraph 2 of the Civil Code as amended by Law of July 11, 1975) the other spouse may demand the nullity of marriage for lack of consent.

Positive law has evolved over the admission of error, defect of consent.
- For years, he has held that the error "in person" that is only on the physical identity of the person or civil.
Thus in the famous case of Berton combined chambers of the Court of Cassation of 24 April 1862. The Court refused to annul a marriage contracted by a girl with a convict free once sentenced to hard labor for complicity in murder.
- Under the influence of the doctrine, jurisprudence has gradually softened its position retaining error as the cause, mental status, or the inability of the spouse, the error on nationality in time of war.
- This has led to the modification of Article 180 paragraph 2 of the Civil Code by law of 11 July 1975 to "the error in the person" adds the error on the essential qualities of the person.
The legislature did not specify what were the essential qualities that are at the discretion of the courts.
This must be objectively observed, that is to say, appear essential in the public but must also take a subjective to whoever is the victim.
It belongs to the latter to establish that the error was determinative and that if he had known he would not consent to this union.

NB Contrary to the vices of consent applicable in contract law, the DOL is not retained in marriage as vitiating consent. A spouse can not attack the marriage contract, arguing that his consent to be surprised by the artifices of his spouse.

2 Parental consent to the marriage of their minor children.

minor legitimate child must obtain the consent of one of his father and mother if they are alive or if either is alive. when they are dead or unable to be consulted, the right to consent to pass the closest ancestors in each line. A Otherwise, the family council is called upon to make. For minor illegitimate children the right to consent up to the parents and grandparents with whom the child naturally has a link from the law of January 3, 1972, if the family council. For the minor adopted child:
- Full adoption: adopted the same position as that of minor legitimate child.
- Adoption simple: by adopting a single, consent of the adopter; both spouses consent, consent of both.
consent is given orally during the marriage. If given before the celebration must be recorded in a deed.
Dissent is consent.

3 ° For incapacitated adults.

The law of January 3, 1968 submit the marriage
- the main ward with permission of both parents or a special resolution of the family council after consultation with the doctor and hearing both future spouses (art. 506 of Civil Code).
- of full age under curatorship authorizing the Trustee, without the guardianship judge (Article 514 of the Civil Code).