AFFILIATION. — By this name, various legal institutions have been called in different periods and places.
HISTORY OF LAW. - In the Middle Ages, among peoples who had already belonged to the Roman Empire, this was the name given to a special succession contract by which an adoption and a mortis causa donation were carried out together; the contract took effect only upon the death of the affiliator, but he could never revoke the donation already made.
Often, moreover, the contract contained special clauses: for example, the obligation to provide maintenance, the obligation to marry or provide a dowry for the affiliator’s daughter, and so forth. This institution disappeared in the 12th century. According to some scholars (Schupfer), this affiliatio was derived from the Lombard thinx; it is certain, however, that, at least at a later period, it differed markedly from the thinx, since it could also take place when the affiliator had legitimate children.
In the early Middle Ages there also arose the a. of the son-in-law, analogous to the Roman adoptio generi (D. 23, 2, 17, § 1), 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 period onward, and subsequently, in the early Middle Ages, especially in Sardinia and southern Italy: Christ, the Church, a saint, or an ecclesiastical body was called upon to take the place of children in hereditary succession, or at least to share in it with them. The purpose was in some way to personify the heir or legatee of property 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 secular one mentioned above—was derived from or imitated the other.
CANON LAW. — In canon law, until the last century, people spoke of the affiliation of religious, in cases where a religious was attached to a house or province other than that in which he had made his profession: such affiliation was valid only if it was made for just reasons and (unless dispensed by the Holy See) there was the permission of the superior and the consent of the religious both of the convent a quo and of that ad quem. This institution of the affiliation of religious was especially important in certain Orders, in which the religious had a more or less strict right to stability; nor can it be ruled out that it may still exist in the current canon law, by virtue of a privilege or particular law.
The Normae servandae in approbendis nocis institutis votorum simplicium, issued by the Sacred Congregation of Bishops and Regulars on 28 June 1901, used the same term of affiliation to indicate (§ 16) the aggregation of a third order to the respective first order; now can. 492, § 1 of the CIC speaks precisely of aggregation.
In the Eastern Church, especially in the Byzantine Church, the founder of a monastery or lay people often affiliate themselves with a monastery in order to participate in some way in the spiritual fruits of the prayers and other good works of the monks. The persons thus affiliated do not constitute a third order, nor any other association properly so called.
CIVIL LAW. - The Italian Civil Code (arts. 404–12) calls by the name of a. a new institution, combining adoption and guardianship, created to regulate legally the practice, already widespread among our people, of taking into one’s own family as children orphaned or abandoned by their parents, providing for their maintenance and education.
A. has in common with adoption the material assumption of a stranger into the sphere of a family; moreover, the affilient has the powers inherent in paternal authority, must maintain, educate, and instruct the affiliated person, and administers his or her property; the affiliated person, if the affilient has requested it, acquires the latter’s surname or, if he or she is a legitimate or acknowledged natural child, adds it to his or her own.
On the other hand, whereas the principal purpose of adoption is to ensure the continuity of the family by inserting a stranger into it in the position of a child, a. aims to provide children deprived of or abandoned by their parents with the assistance they need, and is therefore regulated by law in accordance with the public interest in assisting minors.
It is disputed whether the affiliation of adulterous children by the parent married to someone other than the other parent should be admitted.
The Civil Code prohibits marriage between the affilient and the affiliated person, the latter’s spouse or descendants; between persons affiliated by the same individual; and between the affiliated person and the affilient’s children or spouse. A marriage contracted in violation of this prohibition (which may be removed by dispensation) is annullable, provided that it is challenged within six months. It is unclear whether the same impediment also exists in Italy under the CIC (cf. cann. 1059 and 1080), and, if so, whether it is prohibitive or diriment (v. COGNAZIONE).