Prohibited degree of kinship

In law, a prohibited degree of kinship refers to a degree of consanguinity (blood relatedness) and sometimes affinity (relation by marriage or sexual relationship) between persons that results in certain actions between them being illegal. Two major examples of prohibited degrees are found in incest and nepotism. Incest refers to sexual relations and marriage between closely related individuals; nepotism is the preference of blood-relations in the distribution of a rank or office.

An incest taboo against sexual relations between parent and child or two full-blooded siblings is a cultural universal. Taboos against sexual relations between individuals of other close degrees of relationship vary, but stigmatization of unions with full siblings and with direct descendants are widespread.

Marital prohibitionsEdit

China (Mainland)Edit

Civil Code of the People’s Republic of China Article 1048 stipulated that persons who are lineal relatives by blood, or collateral relatives by blood up to the third degree of kinship are prohibited from being married.

According to the official explanation, the calculation of degree of consanguinity in China is similar to Roman civil law with some difference. Aforementioned "collateral relatives by blood up to the third degree of kinship" include:

  • full and half siblings
  • Uncles and niece; aunt and nephew
  • First cousins (which is counted as fourth degree of kinship in Roman civil law tradition)

Same-sex marriage is currently illegal in China.

In Imperial China (221 BCE to 1912), marriage between first cousins was partially allowed. Marrying the child of one’s paternal aunt, maternal uncle or aunt was generally accepted in Chinese history during most of China’s dynastic era. However, among other exceptions, marrying the child of your paternal uncle was strictly prohibited, as such a marriage was seen as one between siblings as each of the couple bore the same family name.[1]

Medieval canon lawEdit

Roman civil law prohibited marriages within four degrees of consanguinity.[2] This was calculated by counting up from one prospective partner to the common ancestor, then down to the other prospective partner.[3] The first prohibited degree of consanguinity was a parent-child relationship while a second degree would be a sibling relationship. A third degree would be an uncle/aunt with a niece/nephew while fourth degree was between first cousins.[3] Any prospective marriage partner with a blood relationship outside these prohibited degrees was considered acceptable.[3]

The Roman Catholic Church and Eastern Orthodox Church have a long history of marital prohibitions,[citation needed] called impediments to marriage, which limit the marriage of two closely related relatives. Initially, canon law followed Roman civil law until the early 9th century, when the Western Church increased the number of prohibited degrees from four to seven.[4] The method of calculation was also changed to simply count the number of generations back to the common ancestor.[5] This meant that marriage to anyone up to and including a sixth cousin was prohibited. The Fourth Lateran Council of 1215 decreed a change from seven prohibited degrees back to four (but retaining the same method of calculating; counting back to the common ancestor).[6]

AustraliaEdit

In Australia, the Marriage Act 1961 prohibits a marriage to a direct ancestor or descendant or sibling (whether full sibling or half sibling), including those arising from a legal adoption. Such marriages are void.[7]

England and Wales, and the World-wide Anglican CommunionEdit

The 1662 Book of Common Prayer of the Church of England, long used in various forms through a broad swathe of Anglicanism, included a Table of Kindred and Affinity listing the prohibited degrees of kinship within which one could not marry describing in detail the cases in which marriage was forbidden due to consanguinity or marital affinity.[8] The list was enacted by the Marriage Act 1949 which with significant changes continues to apply in England and Wales.[9] The list was cut back by the Marriage (Prohibited Degrees of Relationship) Act 1986, by deleting from the list prohibitions based on affinity relationships, and added to in other respects. Marriages that continue to be prohibited in England and Wales by the 1949 Act are as follows:

Prohibited
to men
Prohibited
to women
Mother Father
Daughter Son
Father's mother
(grandmother)
Father's father
(grandfather)
Mother's mother
(grandmother)
Mother's father
(grandfather)
Son's daughter
(granddaughter)
Son's son
(grandson)
Daughter's daughter
(granddaughter)
Daughter's son
(grandson)
Sister Brother
Father's sister
(aunt)
Father's brother
(uncle)
Mother's sister
(aunt)
Mother's brother
(uncle)
Brother's daughter
(niece)
Brother's son
(nephew)
Sister's daughter
(niece)
Sister's son
(nephew)

The Children Act 1975 added the following prohibitions:

Prohibited to men Prohibited to women
Adoptive mother or former adoptive mother Adoptive father or former adoptive father
Adoptive daughter or former adoptive daughter Adoptive son or former adoptive son

The Marriage Act 1949 also prohibited marriage to the following affinity relations, but these were repealed by the Marriage (Prohibited Degrees of Relationship) Act 1986:[10]

Prohibited
to men
Prohibited
to women
Wife's mother Husband's father
Wife's daughter Husband's son
Father's wife Mother's husband
Son's wife Daughter's husband
Father's father's wife Father's mother's husband
Mother's father's wife Mother's mother's husband
Wife's father's mother Husband's father's father
Wife's mother's mother Husband's mother's father
Wife's son's daughter Husband's son's son
Wife's daughter's daughter Husband's daughter's son
Son's son's wife Son's daughter's husband
Daughter's son's wife Daughter's daughter's husband

The Marriage (Prohibited Degrees of Relationship) Act 1986 prohibits a marriage to the following, until both parties are aged 21 or over, and provided that the younger party has not at any time before attaining the age of 18 been a child of the family in relation to the other party:

Daughter of former wife Son of former husband
Former wife of father Former husband of mother
Former wife of father’s father Former husband of father’s mother
Former wife of mother’s father Former husband of mother’s mother
Daughter of son of former wife Son of son of former husband
Daughter of daughter of former wife Son of daughter of former husband

The Marriage (Prohibited Degrees of Relationship) Act 1986 also prohibits a marriage to the following:

Mother of former wife, until the death of both the former wife and the father of the former wife Father of former husband, until after the death of both the former husband and the mother of the former husband
Former wife of son, until after the death of both his son and the mother of his son Former husband of daughter, until after the death of both her daughter and the father of her daughter

The Marriage Act 1949 (Remedial) Order 2007[11] accepted the ruling of the European Court of Human Rights and removed the ban on marriage with a former mother-in-law/daughter-in-law.

South AfricaEdit

In South Africa, sexual relations are prohibited within the first degree of affinity, that is, where one person is the direct ancestor or descendant of the spouse of the other person.[12]

South KoreaEdit

In South Korea it had historically been forbidden to marry someone with the same surname and clan regardless of the distance of the relation, but this law was ruled unconstitutional in 1999. Conservative Lutherans also prohibit marriage within close degrees of consanguinity and affinity, even if not specifically outlawed by the state.[13]

TaiwanEdit

Article 983 of the Civil Code stipulates that a person may not marry any of the following relatives:

(1) A lineal relative by blood or by marriage;

(2) A collateral relative by blood is within the sixth degree of relationship. The limit to marriage shall not be applicable to persons of lineal relative within the fourth degree of relationship and collateral relative within the sixth degree of relationship by adoption.

(3) A collateral relative by marriage is within the fifth degree of relationship of a different rank. The marriage prohibitions between relatives by marriage provided in the preceding paragraph shall continue to apply even after the dissolution of the marriage which has created the relationship. The limit to marriage with the lineal relative by blood or by marriage set forth in the first paragraph hereof shall be applicable to persons of lineal relative by adoption after ending of the adoption relationship.

The Judicial Yuan Interpretation No.32 and No. 91 allows marriage between siblings by adoption when the adoption was intended for the marriage. When the interpretation was made, it was not uncommon for parents to adopt a child so that their own child can marry the adopted child when both children have grown up.

Article 968 and 970 of the Civil Code states that"the degree of relationship by blood between a person and his lineal relative by blood shall be determined by counting the number of generations upwards or downwards from himself [as the case may be], one generation being taken as one degree. As between the person and his collateral relative, the degree of relationship shall be determined by the total number of generations counting upwards from himself to the common lineal ancestor and then from such common ancestor downwards to the relative by blood with whom the degree of relationship is to be determined." The line and degree of relationship between relatives by marriage shall be determined as follows:

(1) In regard to the spouse of a relative by blood, by the line and degree of relationship of the person who is married to the said spouse;

(2) In regard to a relative by blood of a spouse, by the line and the degree of relationship between such relative by blood and the said spouse;

(3) In regard to the person who is married to the relative by blood of his spouse, by the line and the degree of relationship between such person and the said spouse.

In short, a person can be considered as being "merged" with their spouse when counting degree of relationship.

United StatesEdit

 
Laws regarding first-cousin marriage in the United States
  First-cousin marriage is legal
  Allowed with requirements or exceptions
  Banned with exceptions1
  Statute bans first-cousin marriage1
  Criminal offense1

1Some states recognize marriages performed elsewhere, especially when the spouses were not residents of the state when married.

As of February 2010, 30 U.S. states prohibit most or all marriage between first cousins, and a bill is pending in Maryland that would prohibit most first cousins from marrying.[14] Six states prohibit marriages between first cousins once removed.[15] Some states that prohibit cousin marriage recognize cousin marriages performed in other states.[16]

Jury serviceEdit

United StatesEdit

Statutes in the U.S. state of Georgia disqualify a juror if that person is related "by consanguinity or affinity" to any party "within the sixth degree as computed according to the civil law".[17]

Virginia rulings in Jaques v. Commonwealth, 51 Va. (10 Gratt.) 690 (1853), stated the long-standing, common-law rule disqualifying a venireman (juror) who is related, within the ninth degree of consanguinity or affinity, to a party to a suit.[18]

See alsoEdit

ReferencesEdit

  1. ^ Zhaoxiong Qin, Rethinking Cousin Marrige in Rural China, 40(4) ETHNOLOGY 347 (autumn 2001) cited in Laney Zhang, When Were Marriages Between Cousins Banned in China? (13Sep17) https://blogs.loc.gov/law/2017/09/when-were-marriages-between-cousins-banned-in-china/ September 13, 2017 by
  2. ^ de Colquhoun, Patrick MacChombaich, A summary of the Roman civil law (William Benning and Co., Cambridge, 1849), p. 513
  3. ^ a b c Bouchard, Constance B., 'Consanguinity and Noble Marriages in the Tenth and Eleventh Centuries', Speculum, Vol. 56, No. 2 (Apr., 1981), p. 269
  4. ^ Bouchard, Constance B., 'Consanguinity and Noble Marriages in the Tenth and Eleventh Centuries', Speculum, Vol. 56, No. 2 (Apr., 1981), pp. 269-70
  5. ^ Bouchard, Constance B., 'Consanguinity and Noble Marriages in the Tenth and Eleventh Centuries', Speculum, Vol. 56, No. 2 (Apr., 1981), p. 270
  6. ^ The History of Medieval Canon Law in the Classical Period, 1140-1234, Ed. Wilfried Hartmann, Kenneth Pennington (The Catholic University of America Press, 2008), p. 377
  7. ^ "Marriage Act 1961, s 23B".
  8. ^ Table of Kindred and Affinity
  9. ^ "Marriage Act 1949 (c. 76)". The UK Statute Law database. Retrieved 30 Aug 2010.
  10. ^ "Marriage (Prohibited Degrees of Relationship) Act 1986 (c. 16)". The UK Statute Law database. Retrieved 30 Aug 2010.
  11. ^ "Marriage Act 1949 (Remedial) Order 2007". The UK Statute Law database.
  12. ^ Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, s. 12.
  13. ^ Christian Cyclopedia article on Impediments to Marriage.
  14. ^ McGlothlen, John (February 18, 2010). "Maryland lawmaker: Ban first-cousin marriages as unsafe". The Gazette. Archived from the original on 2016-11-29.
  15. ^ The Love That Dare Not Speak Its Surname
  16. ^ Wolfson, Evan (2004). Why marriage matters: America, equality, and gay people's right to marry. Simon & Schuster. p. 151. ISBN 978-0-7432-6458-7.
  17. ^ Patterson Bank v. Gunter, 588 S.E.2d 270 (2003) 263 Ga. App. 424
  18. ^ Gray v. Com., 311 SE 2d 409 - Va: Supreme Court 1984

External linksEdit