Status (law)

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Conflict of laws

Preliminiaries

Characterisation Incidental question Renvoi · Choice of law Conflict of laws in the United States Public policy Hague Conference

Definitional elements

State · Jurisdiction Procedure Forum non conveniens Lex causae Lex fori · Forum shopping Lis alibi pendens

Connecting factors

Domicile · Lex domicilii Habitual residence Nationality · Lex patriae Lex loci arbitri · Lex situs Lex loci contractus Lex loci delicti commissi Lex loci actus Lex loci solutionis Proper law Lex loci celebrationis Choice of law clause Dépeçage Forum selection clause

Substantive legal areas

Status · Capacity · Contract Tort · Marriage · Nullity Divorce (Get · Talaq) Property · Succession Trusts

Enforcement

Enforcement of foreign judgments Mareva injunctions Anti-suit injunctions

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A person's status is a set of social conditions or relationships created and vested in an individual by an act of law rather than by the consensual acts of the parties, and it is in rem, i.e. these conditions must be recognised by the world. It is the qualities of universality and permanence that distinguish status from consensual relationships such as employment and agency. Hence, a person's status and its attributes are set by the law of the domicile if born in a common law state, or by the law of nationality if born in a civil law state and this status and its attendant capacities should be recognised wherever the person may later travel.

[edit] Identity/personality

In early laws, an outlaw was a person who, by judicial process, was deprived of all normal rights as a human being unless and until a court reversed itself through an affirmative act of inlawry. This was a form of civil death. Similarly, a slave was a chattel or possession, and had no legal personality except that, in the U.S., some of the Free States did allow limited legal personality. Legal personality could be surrendered voluntarily by becoming a monk or by travelling, e.g. the first provisions of the French Civil Code deny civil rights to foreigners. As an aspect of the social contract between a state and the citizens who owe it allegiance, most developed legal systems contain positive provisions defining each individual's legal identity and its attributes. All matters of social rank or caste are examples of personal status, the modern extremes of which would be nobility and the 200 million dalits, the untouchables of India.

Full age or minority are in many laws treated as aspects of personal status. The same thing is true of the loss of capacity by reason of insanity or other mental illness. This is of critical importance if a person wishes to enter into a marriage or a contract having travelled to a state where the age of minority is different or the form of marriage is apparently not consistent with the laws of the "home" state.

Fictitious persons or legal entities may be created by law through the act of incorporation and these corporations are quite separate from the natural persons who may be involved. The holders of some public offices are vested with the office, its terms are fixed by law, and every person within the state must recognise the existence of the office and its rights and duties, e.g. an archbishop or a corporation may represent a business association with its own purposes and capacities. It would be commercially inconvenient if the status of the entity changed depending on the laws of the place where commercial transactions were effected. For example, general partnerships have a separate legal personality in some states but not in others.

[edit] Personal Status

With some exceptions, it is universally accepted that marriage bonds lawfully entered into under the laws of any country^[1], which changes the status of a person from "independent", "single" or "unmarried" to "a married person", will be recognized as such by all other countries in the world, and the partners to the marriage assume the status of husband and wife. That status goes with the people no matter where in the world the spouses may find themselves (except where local public policy is invoked). However, though they are recognized as husband and wife, pursuant to a marriage anywhere in the world, the mutual rights and duties owed by the spouses are determined by the law or custom of the country in which they find themselves.

Under normal circumstances, marriage exists until either one of the parties dies or until it is ended by legal process through nullity or divorce. The circumstances in which that status is to be brought to an end is of sufficient interest to the State that it usually regulates the circumstances in which the family relationship may be terminated. On the death of a spouse, the survivor's personal status changes to "widow" or "widower", and on the termination of the marriage, both of their status changes to "divorcee".

The emotional ties between parents and their children come into being through the natural blood relationship but the law attaches a series of right and duties to all involved. A child has the status of a minor. Another is the status of legitimacy. A legitimate child is usually defined as one born to parents who are married to each other; the child is illegitimate if the relationship is not recognized by the law, but usually has the opportunity to change status if the parents subsequently marry. Adoption usually creates a legal relationship similar to that of natural parent and child. In that event, legitimacy or otherwise of the child is not an issue. A parent does not have status as a parent. Issues may arise as to who is in the position of parent in relation to a child when there are issues of illegitimacy, surrogacy or other disputed parenthood.

When a child or other person incapable of looking after themselves requires care by someone who may not be his or her natural or adoptive parent. They are sometimes said to be wards of a legal guardian. This relationship, however, does not change the status of the child as a minor, and, like a parent, the guardian has no status, though rights and duties are expected between the people.

[edit] Footnotes