AFFILIATION. - Under this name, various legal institutions have been called, in different eras and places.
HISTORY OF LAW
In the Middle Ages, among the populations that had already belonged to the Roman Empire, this was the name given to a special succession contract by which an adoption and a donation mortis causa were effected together; the contract took effect only upon the death of the affiliator, but the latter could never revoke the donation already made.
Often the contract then contained special clauses: for example, the obligation of support, the obligation to marry or provide a dowry for the affiliator's daughter, etc. This institution disappeared in the 12th century. According to some (Schupfer), this affiliatio would be a derivation of the Lombard thinx; it is certain, however, that at least later on it differs clearly from the thinx, since it could take place even if the affiliator had legitimate children.
In the early Middle Ages there also arises the a. of the son-in-law, analogous to the Roman adoptio generi (D. 23, 2, 17, § 1), though without the emancipation of the daughter being necessary; and we also find the a. of unrelated persons.
An analogous institution is found in the Church, at least from the Justinianic era, and then in the early Middle Ages especially in Sardinia and southern Italy, Christ, or the Church, or some saint, or an ecclesiastical body being called upon to take the place of children in the hereditary succession, or at least to share with them: this for the purpose of personifying in some way the heir or the legatee of the goods left for pious purposes (cf. Cod. Iustin, 1, 2, 25; Nov. 131, 3). It is not clear which of the two institutions (the ecclesiastical one, or the lay one of which we spoke above) is a derivation or imitation of the other.
CANON LAW
In canon law, until the last century, there was talk of the a. of religious, in cases of the aggregation of a religious to a house or a province other than the one in which he had made his profession: such aggregation was valid only if it was done for just reasons, and (save for a dispensation of the Holy See) there was the license of the superior and the consent of the religious both of the convent a quo and of that ad quem. This institution of the a. of religious was important especially in certain Orders, in which the religious had a right, more or less strict, to stability; and it is not to be excluded that it may still exist in current canon law, by force of a privilege or of a particular law.
With the same term a. the Normae servandae in approbendis novis institutis votorum simplicium, issued by the Sacred Congregation of Bishops and Regulars on 28 June 1901, indicated (§ 16) the aggregation of a third order to the respective first order; now canon 492, § 1 of the CIC speaks precisely of aggregation.
In the Eastern Church, especially in the Byzantine one, often the founder of a monastery or the laity affiliate themselves to a monastery for the purpose of participating in some way in the spiritual fruits of the prayers and of the other good works of the monks. The persons thus affiliated do not constitute a third order, nor any other true association as such.
CIVIL LAW
The Italian Civil Code (arts. 404-12) gives the name of a. to a new institution, a mixture of adoption and guardianship, created in order to regulate juridically the practice, already very widespread in practice among our people, of taking as one's own children minors who are orphans or abandoned by their parents, providing for their maintenance and their education.
The a. has in common with adoption the fact of the material assumption of an outsider into the ambit of a family; moreover the affiliating party has the powers inherent in parental authority, must maintain the affiliated person, educate and instruct him, and administers his property; the affiliated person, when the affiliating party has requested it, acquires his surname or, if he is a legitimate or recognized natural child, adds it to his own.
On the other hand, while the principal purpose of adoption is to ensure the continuity of the family by inserting an outsider into it in the position of a child, the a. has the purpose of giving to minors who are deprived of or abandoned by their parents the assistance they need, and is therefore regulated by law in function of the public interest in the assistance of minors.
It is disputed whether the a. of adulterine children should be admitted on the part of the parent united in marriage with a person other than the other parent.
The Civil Code forbids marriage between the affiliating party and the affiliated person, the latter's spouse or descendants; between persons affiliated by the same person, and between the affiliated person and the children or the spouse of the affiliating party; a marriage contracted in violation of this prohibition (which can be removed by dispensation) is voidable, provided it is challenged within six months. It is not clear whether the same impediment also holds in Italy in the CIC (cf. cann. 1059 and 1080), and, if so, whether it is impedient or diriment (v. COGNAZIONE LEGALE).