Zbornik Znanstvenih Razprav (Dec 2019)
The Impact of Multicultural Issues on the Notion of “Family Member”
Abstract
Recent family migration flows in the EU are significant and require specific attention. Migration can alter marriage, couple models, forms of cohabitation and can even redefine internal family relational dynamics. A crucial issue is a notion of “family member” itself. This notion needs to be reconsidered to reflect the rich cultural diversity and mobility. So far, the prevailing approach in law has been tendentially restrictive and Eurocentric. Family relationships that are legally recognised in some national legal systems outside the EU are not recognised in the EU. This article is aimed at understanding better the meaning of the concept of “family member” and eventually at proposing a broader legal formulation. On the theoretical plane the notion of migrant “family member” will be considered in relation to the distinction between statuscivitatis (or citizenship) and statuspersonae (or personality, legal subjectivity), taking into account related human rights issues. In this regard, due to the growing presence of Muslim population in the EU, the analysis of a specific situation is of particular interest: the international kafala, a parental sponsorship provided in Islamic family law. The issue related to filiation and adoption is problematic for Islamic migrant families who live in the EU, as the Qu’ran prohibits adoption. Kafala, according to its etymological meaning, is defined as a voluntary per-son’s (kafil) commitment to take charge of the needs, upbringing and protection of a minor child deprived of his/her family (makfoul) . Significant differences with regard to adoption will be pointed out: the makfoul will not carry the surname of the kafil, nor acquire inheritance rights; furthermore, impediments to marriage are not established for kafala. Patrimonial issues related to kafala will be taken into account as well. In the perspective of possible enlargement of the notion of “family member”, consisting on the transposing of kafala in non-Islamic countries, the jurisprudence of the European Court of Human Rights and of the Court of Justice in the matter of kafala will be considered, as well as the related international conventions. This complex analysis will lead to a com-plete rethinking of the legal model of the family, aimed at the reformulation of the same notion of “family member”. The traditional Eurocentric family structure needs indeed to be overcome by a more flexible and dynamic model of the family, that can meet the demands of a multicultural society. Taxonomical analysis of the different forms of family relations represents now a necessity.
