Top Five Latin Terms in Family Law
In a family law decision I was reading recently, the judge had used a few Latin terms in the judgment, and I wondered whether the parties to the litigation fully understood what was going on in their own legal matter. It occurred to me that there were some Latin terms that were relatively common (at least in legal circles) that still might need some explanation.
1. In loco parentis. (“In the place of a parent”)
This phrase is used to refer to a person or entity assuming the normal parental responsibilities for a minor child. It is often used in situations where there is a transfer of legal guardianship, or to refer to schools or other institutions that act in the place of the parents on a day-to-day basis.
2. Lex loci. (“In the law of the place”)
The term refers to the law of that particular country, state, or locality where the matter under litigation took place. It usually arises in connection with legal disputes that span multiple jurisdictions, for example where children have been removed from Canada by one parent and the issue arises as to which jurisdiction’s laws govern the situation (an area of law called “conflict of laws”).
3. Non est factum. (“It is not my deed”)
This term is more commonly used in contract law, but it can be applied in the context of separation agreements that have been reached between spouses or common law partners. It refers to an assertion by one signatory to a contract that the agreement is invalid on the basis that he or she signed unintentionally and without fully understanding its implications.
4. Parens Patriae. (“Parent of the nation”)
This term refers to the power of the State to act as parent to a child, in situations where the legal parents are unable or unwilling to do so. For example, when children are removed from their parents’ care in order to be cared for under the auspices of the Children’s Aid Society, such a step is achieved and authorized through the exercise of the Ontario government’s parens patriae authority.
5. Res judicata. (“A matter judged”)
A matter that is res judicata is one that has been adjudicated to the point of conclusion, meaning no further appeals or legal actions by the involved parties is permitted. For example, if divorcing parties have brought their claims for equalization of net family property to one court, and have had the matter heard and adjudged, then they cannot afterwards go judge-shopping to a different court for a different or better outcome on that particular aspect of their separation. Once their issues have all been heard (and leaving aside those legal matters that are eligible for applications to vary), the matter becomes res judicata.
Inter vivos. (“Between the living”)
This term is used to refer to a gift or other non-sale transfer between living parties. For example,a gift by living parents to their children is called a gift inter vivos; this is distinct from a transfer made by Will, which takes effect upon the testator’s death.
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