THE ROAD TOWARDS A EUROPEAN FAMILY LAWI Katharina Boele-Woelki(Utrecht University) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form printed, electronic or othenwise, except for reasonable quoting, clearly indicating thesource Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract In this contribution a plea is made for fundamental academic research into the convergence of family law legislation within the EU Member States by means of the development and formulation of European norms on the basis of comparative law and treaty standards. After a brief stocktaking of the literature on European family law, both within and outside the Netherlands( section 1), an indication is given of the path that may be taken in order to attain a European family law(section 2)and the role such a European family law would play( section 3) Finally, it is indicated in which areas of family law research may be undertaken in order to determine and/or promote family law legislation within Europe Contents Introduction Interest in a European family law 1. 1 Activities ofacademics 1. 2 Activities of the Council of europe 2 The road towards a European family law 3. The usefulness of a European family law 4. The subject matter and method of research 4. 1 The influence of European norms on national family law in europe 4. 2 The property law aspects of marriage and divorce 4.3 The property law aspects of cohabitation outside marriage 4. 4 The rights of minors 4.5 The protection of minors Concluding remarks Introduction The author wishes to thank gert Steenhoff Gerard-Rene de groot and patrick senaeve
1 THE ROAD TOWARDS A EUROPEAN FAMILY LAW1 Katharina Boele-Woelki (Utrecht University) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating thesource. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract In this contribution a plea is made for fundamental academic research into the convergence of family law legislation within the EU Member States by means of the development and formulation of European norms on the basis of comparative law and treaty standards. After a brief stocktaking of the literature on European family law, both within and outside the Netherlands (section 1), an indication is given of the path that may be taken in order to attain a European family law (section 2) and the role such a European family law would play (section 3). Finally, it is indicated in which areas of family law research may be undertaken in order to determine and/or promote family law legislation within Europe. Contents Introduction 1. Interest in a European family law 1.1 Activities of academics 1.2 Activities of the Council of Europe 2 The road towards a European family law 3. The usefulness of a European family law 4. The subject matter and method of research 4.1 The influence of European norms on national family law in Europe 4.2 The property law aspects of marriage and divorce 4.3 The property law aspects of cohabitation outside marriage 4.4 The rights of minors 4.5 The protection of minors Concluding remarks Introduction 1 The author wishes to thank Gert Steenhoff, Gerard-René de Groot and Patrick Senaeve
For many years in Europe there has been discussion about the existence or non-existence and, as the case may be, the origin of European private law. The realisation of a European law of contract,for example, has progressed to an advanced stage, also due to the Principles of European Contract Law published in 1994. It is also common to classify and define other areas of private law with the designation <European= ' Does this europaisierung also occur in the field of family law? In answering this question it can first of all be stated generally that outside European Union legislation a European private law in the form of legal regulations does not (yet) exist:<Es muss erst noch benannt und dadurch geschaffen werden =, wrote Hein Kotz in his introduction to a book on European contract law which has recently been published. 4 This observation particularly applies to persons and family law. In Europe there are indeed a few treaties in force which have brought together a number of family law branches, both as regards substantive law and conflicts, but as regards content there is no similar legislation in the fam\ law systems in Europe. The major part of persons and family law has thus far been considered and in this respect little will change in the near future- to be a matter of national concern. Every EU Member State has codified its persons and family law or has, to a greater or lesser extent, extensively regulated it by law. This enactment of specif ic regulations and their application demonstrates mutual differences and similarities. To the latter belong, with certain exceptions, the equal treatment of men and women, the necessity of treating legitimate and for example. But European family law, that is to say, the common basic principles whichrce, illegitimate children equally, and the possibility of dissolving a marriage by means of dive underlie the institutions of family law in Europe, is as such still to emerge In this contribution a plea is made for fundamental academic research into the convergence of family law legislation within the eu Member States by means of the development and formulation of European norms on the basis of comparative law and treaty standards. After a brief stocktaking of the literature on European family law, both within and outside the Netherlands( section 1), an indication is given of the path that may be taken in order to attain a European family law(section 2)and the role such a European family law would play (section 3). Finally, it is ind icated in which areas of family law research may be undertaken in See H. Kotz, Europaisches Vertragsrecht 1, Tubingen 1996 Pmn. This is especially so in the areas of the la w which are influenced by EU legislation, such as liability law and company law. See, in the case of the former, Chr. von Bar, Gemeineuropaisches Deliktsrecht 1, Munich 1996 Kotz, op. cit.(n. 1), p. IV Into be According to Kotz(op cit (n. 1 ),p. VI), legal literature in the field of European private law must come g which is from the beginning set up independently in relation to national le gal systems. It must not take a certain national legal system or the structure thereof as its point of departure, nor must it be written for a particular ational readership. Of course, the rules of national legal systems must not be ignored, but they must only be considered as a local variation of a uniform European subject matter The treaties of the Council of Europe, the Commission International d'Etat Civil and the Hague Conventions on Private Interna tional law Europe is here understood to mean the European Union
2 For many years in Europe there has been discussion about the existence or non-existence and, as the case may be, the origin of European private law. The realisation of a European law of contract,2 for example, has progressed to an advanced stage, also due to the Principles of European Contract Law published in 1994. It is also common to classify and define other areas of private law with the designation <European=. 3 Does this Europäisierung also occur in the field of family law? In answering this question it can first of all be stated generally that outside European Union legislation a European private law in the form of legal regulations does not (yet) exist: <Es muss erst noch benannt und dadurch geschaffen werden=, wrote Hein Kötz in his introduction to a book on European contract law which has recently been published.4 This observation particularly applies to persons and family law.5 In Europe there are indeed a few treaties in force6 which have brought together a number of family law branches, both as regards substantive law and conflicts, but as regards content there is no similar legislation in the family law systems in Europe.7 The major part of persons and family law has thus far been considered - and in this respect little will change in the near future - to be a matter of national concern. Every EU Member State has codified its persons and family law or has, to a greater or lesser extent, extensively regulated it by law. This enactment of specific regulations and their application demonstrates mutual differences and similarities. To the latter belong, with certain exceptions, the equal treatment of men and women, the necessity of treating legitimate and illegitimate children equally, and the possibility of dissolving a marriage by means of divorce, for example. But European family law, that is to say, the common basic principles which underlie the institutions of family law in Europe, is as such still to emerge. In this contribution a plea is made for fundamental academic research into the convergence of family law legislation within the EU Member States by means of the development and formulation of European norms on the basis of comparative law and treaty standards. After a brief stocktaking of the literature on European family law, both within and outside the Netherlands (section 1), an indication is given of the path that may be taken in order to attain a European family law (section 2) and the role such a European family law would play (section 3). Finally, it is indicated in which areas of family law research may be undertaken in 2 See H. Kötz, Europäisches Vertragsrecht I, Tübingen 1996. 3 This is especially so in the areas of the law which are influenced by EU legislation, such as liability law and company law. See, in the case of the former, Chr. von Bar, Gemeineuropäisches Deliktsrecht I, Munich 1996. 4 Kötz, op. cit. (n. 1), p. IV. 5 According to Kötz (op. cit. (n. 1), p. VI), legal literature in the field of European private law must come into being which is from the beginning set up independently in relation to national legal systems. It must not take a certain national legal system or the structure thereof as its point of departure, nor must it be written for a particular national readership. Of course, the rules of national legal systems must not be ignored, but they must only be considered as a local variation of a uniform European subject matter. 6 The treaties of the Council of Europe, the Commission International d'Etat Civil and the Hague Conventions on Private International Law. 7 Europe is here understood to mean the European Union
order to determine and/or promote family law legislation within Europe l. Interest in a european family law 1. 1 Activities of academics The literature which deals with the unification or harmonisation of family law in Europe remains for the time being, easy to survey. In the last few years-as far as the Dutch situation is concerned-a number of doctoral theses have appeared, wherein the institutions of family law have been subjected to comparative law research. The general principles of European family law have not been elaborated upon in these theses, however. Furthermore, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms(EChr)in particular, together with the case law of the Court of Justice based thereon, provides sufficient reason both at home and abroad to bring national family law into conformity with the right of respect for family life which is formulated in general terms in that article. The manner in which and the extent to which this occurs are not the same in all countries In the Dutch legal literature, two contributions which investigate the phe European family law appeared in 1995. De groot looked into the question of how a European persons and family law could be established. o From a practical point of view, it seemed to him to be an attractive proposition to combine the strong points at a European level by negotiating a treaty in which an attempt would be made to codify <the basic principles of European family law= which are built upon already existing treaty obligations. The organisations which could deal with a similar treaty are, in his opinion, the Council of Europe, possibly in cooperation with the Commission International d'Etat Civil(CIEC). According to De Groot, however, attaining uniformity or harmonisation at a European level will no doubt be difficult. While the title of De Groot's article was formulated as a question, the second contribution, written by one of the most important Dutch ad vocates of a European private law, has an air of self-confidence. The contribution by Hondius is entitled Naar een Europees personen-en familierecht(<Towards a See C. Forder, <Legal establishment of the parent-child relationship: Constitutional principles in Dutch English and German law, having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms and other applicable international instruments=, doctoral thesis Maastricht 1995 (comparative research of Dutch, German and English law); G.E. Schmidt, <Sterke en zwakke adoptees=, doctoral thesis University of Amsterdam 1996(comparative research of Dutch, German and French law). See also A Isenbeck, <Traditionelles niederlandisches Familienrecht und europaische Einflusse=, doctoral thesis Munster 1995 See for the Netherlands, for example, C. van Wamelen, <Ouderschap en ouderlijk gezag na echtscheiding doctoral thesis Rotterdam. Zwolle 1987 G-R. de groot, <Op weg naar een Europees personen-en familierecht?=, Ars Aequi 1995, vol 44, no. 1, pp 29-33 11Idem,pp.30-31 E H. Hondius, <Naar een Europees personen-en famil ierecht=, in: H. Franken and J de ruiter, Drie Over politiek, beleid en recht, Zwolle 1995, pp 173-181
3 order to determine and/or promote family law legislation within Europe. 1. Interest in a European family law 1.1 Activities of academics The literature which deals with the unification or harmonisation of family law in Europe remains, for the time being, easy to survey. In the last few years - as far as the Dutch situation is concerned - a number of doctoral theses have appeared,8 wherein the institutions of family law have been subjected to comparative law research. The general principles of European family law have not been elaborated upon in these theses, however. Furthermore, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in particular, together with the case law of the Court of Justice based thereon, provides sufficient reason both at home and abroad to bring national family law into conformity with the right of respect for family life which is formulated in general terms in that article.9 The manner in which and the extent to which this occurs are not the same in all countries. In the Dutch legal literature, two contributions which investigate the phenomenon of a European family law appeared in 1995. De Groot looked into the question of how a European persons and family law could be established.10 From a practical point of view, it seemed to him to be an attractive proposition to combine the strong points at a European level by negotiating a treaty in which an attempt would be made to codify <the basic principles of European family law= which are built upon already existing treaty obligations. The organisations which could deal with a similar treaty are, in his opinion, the Council of Europe, possibly in cooperation with the Commission International d'Etat Civil (CIEC). According to De Groot, however, attaining uniformity or harmonisation at a European level will no doubt be difficult.11 While the title of De Groot's article was formulated as a question, the second contribution, written by one of the most important Dutch advocates of a European private law, has an air of self-confidence. The contribution by Hondius12 is entitled Naar een Europees personen- en familierecht (<Towards a 8 See C. Forder, <Legal establishment of the parent-child relationship: Constitutional principles in Dutch, English and German law, having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms and other applicable international instruments=, doctoral thesis Maastricht 1995 (comparative research of Dutch, German and English law); G.E. Schmidt, <Sterke en zwakke adopties=, doctoral thesis University of Amsterdam 1996 (comparative research of Dutch, German and French law). See also A. Isenbeck, <Traditionelles niederländisches Familienrecht und europäische Einflüsse=, doctoral thesis Münster 1995. 9 See for the Netherlands, for example, C. van Wamelen, <Ouderschap en ouderlijk gezag na echtscheiding=, doctoral thesis Rotterdam, Zwolle 1987. 10 G.-R. de Groot, <Op weg naar een Europees personen- en familierecht?=, Ars Aequi 1995, vol. 44, no. 1, pp. 29-33. 11 Idem, pp. 30-31. 12 E.H. Hondius, <Naar een Europees personen- en familierecht=, in: H. Franken and J. de Ruiter, Drie treden: Over politiek, beleid en recht, Zwolle 1995, pp. 173-181
European persons and family law=). He takes stock of the comparative law research which has taken place in the Netherlands to date and he conclud es that there is indeed some truth in the presumption n of many that persons and family law has not been associated with the priorities of comparative law. 3 He then indicates in which areas harmonisation of substantive law has already been achieved at a European level by means of treaties, especially the CIEC. 4 Harmonisation can only be ascertained in certain fields, however. Thereupon, Hondius displays a degree of scepticism towards the fundamental objection that persons and family law does not lend itself to harmonisation because this area of the law blends in too easily with culture. In this connection he poses, in my opinion, the illustrative question of whether the Netherlands position as one of the few countries in the world which recognises complete community of matrimonial property, really is a consequence of Dutch culture. >The necessity for comparative law in the field of persons and family law -accord ing to Hondius's conclusion -is growing, numerous social changes compel an amendment to the legislation, for which inspiration can be drawn from abroad. Koens, the prominent Dutch family law expert, endorses the importance of comparative law research in the field of family law as follows: 7 In order to realise the necessary harmonist ion in this legal field, further reaching steps will have to be taken of course first of all more attention from the legislator. case law and namely legal science will have to be given at the national level to the persons and family law of other states. Furthermore, other paths have to be taken as well, however, in order to reach some harmonisation as regards the main points of persons and family law Whichever road is chosen, it is indeed obvious that a merely national point of view will o longer suffice for a good understand ing of current and future persons and family law How is attention to a European family law determined in other countries? The relevant publications/initiatives may be grouped as follows: Firstly, publications by authors who, like De Groot and Hondius, recognise the necessity and feasibility of research into a European family law. Here the following question is provocatively put European family law: mythe ou realite? or Utopie oder Notwendigkein? The first contribution to be classified hereunder was written in 1990 by the well-known French/German comparative law analyst Alfred Rieg. He provides a number of examples of national regulations in the fields of matrimonial law, divorce law and the law of succession which, according to him ind isputably demonstrate that the total number of Idem, p. 177 Idem, p 180 Idem, p 180 M.J.C. Koens, Het hedendaagse personen-en familierecht, Zwolle 1995 p 13 A. Rieg, L'Harmonisation europeenne du droit de famille: mythe ou realite? Conflits et harmonisation Liber Amicorum A.E. von Overbeck, Fribourg 1990, pp. 473-499
4 European persons and family law=). He takes stock of the comparative law research which has taken place in the Netherlands to date and he concludes that there is indeed some truth in the presumption of many that persons and family law has not been associated with the priorities of comparative law.13 He then indicates in which areas harmonisation of substantive law has already been achieved at a European level by means of treaties, especially the CIEC.14 Harmonisation can only be ascertained in certain fields, however. Thereupon, Hondius displays a degree of scepticism towards the fundamental objection that persons and family law does not lend itself to harmonisation because this area of the law blends in too easily with culture. In this connection he poses, in my opinion, the illustrative question of whether the Netherlands' position as one of the few countries in the world which recognises complete community of matrimonial property, really is a consequence of Dutch culture.15 The necessity for comparative law research in the field of persons and family law - according to Hondius's conclusion - is growing, because numerous social changes compel an amendment to the legislation, for which inspiration can be drawn from abroad.16 Koens, the prominent Dutch family law expert, endorses the importance of comparative law research in the field of family law as follows:17 In order to realise the necessary harmonisation in this legal field, further reaching steps will have to be taken. Of course, first of all more attention from the legislator, case law and namely legal science will have to be given at the national level to the persons and family law of other states. Furthermore, other paths have to be taken as well, however, in order to reach some harmonisation as regards the main points of persons and family law. Whichever road is chosen, it is indeed obvious that a merely national point of view will no longer suffice for a good understanding of current and future persons and family law. (my translation) How is attention to a European family law determined in other countries? The relevant publications/initiatives may be grouped as follows: Firstly, publications by authors who, like De Groot and Hondius, recognise the necessity and feasibility of research into a European family law. Here the following question is provocatively put: European family law: mythe ou realité? or Utopie oder Notwendigkeit? The first contribution to be classified hereunder was written in 1990 by the well-known French/German comparative law analyst Alfred Rieg.18 He provides a number of examples of national regulations in the fields of matrimonial law, divorce law and the law of succession which, according to him, indisputably demonstrate that the total number of 13 Idem, p. 177. 14 Idem, p. 179. 15 Idem, p. 180. 16 Idem, p. 180. 17 M.J.C. Koens, Het hedendaagse personen- en familierecht, Zwolle 1995 p. 13. 18 A. Rieg, L'Harmonisation européenne du droit de famille: mythe ou realité? Conflits et harmonisation, Liber Amicorum A.E. von Overbeck, Fribourg 1990, pp. 473-499
more or less equivalent solutions in these fields is strongly on the increase. He is of the opinion that the harmonisation of family law in Europe is not a myth, because surd'innombrables points on pouvait relever une concordance, sinon de solutions, au moins de tendances. 20 The necessity of providing insight into the differences and the similarities contained in the legislation of the Member States and the elaboration of a restatement of European family law has recently been ad vocated by the authoritative german comparative law analyst Dieter Martiny. He establishes, among other things, that, different from the field of commercial law, where the development of a uniform law is being overseen by a large number of national and international organisations, the initiatives in the field of family law are not attuned to each other But, accord ing to him, European family law is more than a utopia. Attuning future activities to each other seems to him to be more necessary than ever, because to date there has been no fundamental change in the division of tasks between the international organisations and national legislators, and also limited and various activities are being developed alongside each other According to Martiny, the tangible problem areas are the most suitable for a collective solution To a totally different category belong the systematic collections of country-by-country reports on the legal systems of Europe in the field of family law. These publications are of inestimable value in the research into a European family law. They provide the necessary information on national legal systems and belong to the reliable sources which are indispensable for mutual comparison. First of all, we can point to the series entitled < Beitrage zum Europaischen Familienrecht=, which is published by three family law experts attached to the University of Regensburg. The series includes the reports of the various symposia organised by the university since 1993. The first such symposium was devoted to the development of the law of succession in Europe. Eleven country-by-country reports, written by lawyers originating from the participating countries, are presented in this publication. The second symposium was devoted to the following subject: the protection of the matrimonial home in the European legal systems. Eight country-by-country reports were brought together. 4 The third symposium was held at the end of October 1996 and had as its theme: family solidarity the origin and the limits of maintenance between family members in Europe. A collection of eleven country-by-country reports will shortly appear. It is indeed striking that up to now no Dutch experts in the field of Idem, p 495 D Martiny, <Europa isches Familienrecht-Utopie oder Notwendigkeit =, Rabels Zeitschriftfuir auslandisches und internationales Privatrecht 1995, vol. 59, nos 3-4, pp. 419-453 ldem,pp.441l,452453 The reports concern Austrian, Belgian, English, French, Hungarian, Italian, Polish, Spanish, Swedish Swiss and German law. D Schwab and D. Henrich, Entwicklungen des europaischen Kindschaftsrecht, Bielefeld 1994 The reports concern Austrian, Belgian, Czech, English, French, Norwegian, Swiss and German law. D Henrich and D Schwab, Der Schute der Familiemwohnung in europaischen Rechtsordnungen, Bielefeld 1995 The French, Belgian, Italian, Austrian, Swiss, Turkish, Slovenian, Czech, Scottish, English, Swedish and
5 more or less equivalent solutions in these fields is strongly on the increase.19 He is of the opinion that the harmonisation of family law in Europe is not a myth, because sur d'innombrables points on pouvait relever une concordance, sinon de solutions, au moins de tendances. 20 The necessity of providing insight into the differences and the similarities contained in the legislation of the Member States and the elaboration of a Restatement of European family law has recently been advocated by the authoritative German comparative law analyst Dieter Martiny.21 He establishes, among other things, that, different from the field of commercial law, where the development of a uniform law is being overseen by a large number of national and international organisations, the initiatives in the field of family law are not attuned to each other. But, according to him, European family law is more than a utopia. Attuning future activities to each other seems to him to be more necessary than ever, because to date there has been no fundamental change in the division of tasks between the international organisations and national legislators, and also limited and various activities are being developed alongside each other. According to Martiny, the tangible problem areas are the most suitable for a collective solution.22 To a totally different category belong the systematic collections of country-by-country reports on the legal systems of Europe in the field of family law. These publications are of inestimable value in the research into a European family law. They provide the necessary information on national legal systems and belong to the reliable sources which are indispensable for mutual comparison. First of all, we can point to the series entitled <Beiträge zum Europäischen Familienrecht=, which is published by three family law experts attached to the University of Regensburg. The series includes the reports of the various symposia organised by the university since 1993. The first such symposium was devoted to the development of the law of succession in Europe. Eleven country-by-country reports, written by lawyers originating from the participating countries, are presented in this publication.23 The second symposium was devoted to the following subject: the protection of the matrimonial home in the European legal systems. Eight country-by-country reports were brought together.24 The third symposium was held at the end of October 1996 and had as its theme: family solidarity - the origin and the limits of maintenance between family members in Europe. A collection of eleven country-by-country reports will shortly appear.25 It is indeed striking that up to now no Dutch experts in the field of 19 Idem, p. 495. 20 Idem, p. 498. 21 D. Martiny, <Europäisches Familienrecht - Utopie oder Notwendigkeit?=, Rabels Zeitschrift für ausländisches und internationales Privatrecht 1995, vol. 59, nos. 3-4, pp. 419-453. 22 Idem, pp. 441, 452-453. 23 The reports concern Austrian, Belgian, English, French, Hungarian, Italian, Polish, Spanish, Swedish, Swiss and German law. D. Schwab and D. Henrich, Entwicklungen des europäischen Kindschaftsrecht, Bielefeld 1994. 24 The reports concern Austrian, Belgian, Czech, English, French, Norwegian, Swiss and German law. D. Henrich and D. Schwab, Der Schutz der Familienwohnung in europäischen Rechtsordnungen, Bielefeld 1995. 25 The French, Belgian, Italian, Austrian, Swiss, Turkish, Slovenian, Czech, Scottish, English, Swedish and
family law have participated in these symposia. This is regretful because in the Netherland much recent legislation has been enacted, or is currently being prepared, in the field of family law. a glimpse across the borders can certainly put one's own perceptions into perspective. On the other hand, there are others who are possibly just as interested in the dutch views on subjects such as joint custody after divorce, the limitation of the duration of maintenance or marriage (and/or its registration) of persons of the same sex. Comparable to the set-up chosen by the activities in Regensburg, which is principally to provide information on the family law systems of certain countries, is the book by Hamilton, Standley and Hodson which appeared in 1995 and is entitled Family Law in Europe. 6 This book can also be classified under the category of Auslandsrechtskunde. It contains reports concerning the most important family law institutions written by lawyers from the countries concerned. However, in this book no attention is devoted to a comparative synthesis in which the similarities and differences are determined and explained But at the end of the book, under the title European Family Law=, the influence well as European Community law on family law is investigated. 28 1.2 Activities of the Council of Europe Which activities have already been undertaken by the Council of Europe in the field of family law and what is planned for the future? The answers to these questions can easily be found in the report of the Council of Europe on the achievements in the field of family law, published in July 1997. The report consists of two parts. In the first part, which contains much interesting information, an overview is given of all the activities of the Council of Europe. Up until now three European conferences on family law have been organised, namely in Vienna(1977),in Budapest(1992)and in Cadiz (1995).29 Since 1969 the Council of Europe has been hold ing colloquia on European law. To date, four of the 27 colloquia have dealt with family law. In Vienna(1974)a colloquium was held on the subject <Legal representation and custody of minors=,in Messina(1981)on the subject <Legal problems concerning unmarried couples Amsterdam(1993)on the subject <Transsexuality, medicine and law= and recently in Malta German laws were considered. The third volume in this series was published in 1997 under the editorship of B Verschraegen. She was general rapporteur of the subject < Equality in Family Law= at the first world congress <Law in Motion= which took place in Brussels in Septem ber 1996. The book, which is entitled Gleichheit im Familienrecht(Bielefeld 1997), contains the general report and national reports(a few are written in English) of Germany, Switzerland, Italy, Spain, Belgium, the Netherlands, Denmark, Sweden, the Czech Republic, Slovenia Hungary, the United States, Austra lia, Israel and Japan C. Hamilton, K Standley and D Hodson, Family Law in Europe, London/ Dublin/Edinburgh 1995 The rep m Belgium, Denmark, England and Wales, France, Germany, Greece, Ireland, Italy, the Netherlands Ne d, Norway, Portugal, Scotland, Spain, Sweden and Switzerland C. Hamilton, K Standley and D Hodson, Family Law in Europe, op cit (n. 25), pp. 549-598. See also the eaf publication by w. Pintens(ed ) Family and Succession Law, International Encyclopedia oflaws, The See the report of the Council of Europe, July 1997, pp. 10-11
6 family law have participated in these symposia. This is regretful because in the Netherlands much recent legislation has been enacted, or is currently being prepared, in the field of family law. A glimpse across the borders can certainly put one's own perceptions into perspective. On the other hand, there are others who are possibly just as interested in the Dutch views on subjects such as joint custody after divorce, the limitation of the duration of maintenance or marriage (and/or its registration) of persons of the same sex. Comparable to the set-up chosen by the activities in Regensburg, which is principally to provide information on the family law systems of certain countries, is the book by Hamilton, Standley and Hodson which appeared in 1995 and is entitled: Family Law in Europe. 26 This book can also be classified under the category of Auslandsrechtskunde. It contains reports concerning the most important family law institutions written by lawyers from the countries concerned.27 However, in this book no attention is devoted to a comparative synthesis in which the similarities and differences are determined and explained. But at the end of the book, under the title European Family Law=, the influence of treaties as well as European Community law on family law is investigated.28 1.2 Activities of the Council of Europe Which activities have already been undertaken by the Council of Europe in the field of family law and what is planned for the future? The answers to these questions can easily be found in the report of the Council of Europe on the achievements in the field of family law, published in July 1997. The report consists of two parts. In the first part, which contains much interesting information, an overview is given of all the activities of the Council of Europe. Up until now, three European conferences on family law have been organised, namely in Vienna (1977), in Budapest (1992) and in Cadiz (1995).29 Since 1969 the Council of Europe has been holding colloquia on European law. To date, four of the 27 colloquia have dealt with family law. In Vienna (1974) a colloquium was held on the subject <Legal representation and custody of minors=, in Messina (1981) on the subject <Legal problems concerning unmarried couples=, in Amsterdam (1993) on the subject <Transsexuality, medicine and law= and recently in Malta German laws were considered. The third volume in this series was published in 1997 under the editorship of B. Verschraegen. She was general rapporteur of the subject <Equality in Family Law= at the first world congress <Law in Motion= which took place in Brussels in September 1996. The book, which is entitled Gleichheit im Familienrecht (Bielefeld 1997), contains the general report and national reports (a few are written in English) of Germany, Switzerland, Italy, Spain, Belgium, the Netherlands, Denmark, Sweden, the Czech Republic, Slovenia, Hungary, the United States, Australia, Israel and Japan. 26 C. Hamilton, K. Standley and D. Hodson, Family Law in Europe, London/Dublin/Edinburgh 1995. 27 The reports concern Belgium, Denmark, England and Wales, France, Germany, Greece, Ireland, Italy, the Netherlands, Northern Ireland, Norway, Portugal, Scotland, Spain, Sweden and Switzerland. 28 C. Hamilton, K. Standley and D. Hodson, Family Law in Europe, op. cit. (n. 25), pp. 549-598. See also the loose-leaf publication by W. Pintens (ed.), Family and Succession Law, International Encyclopedia of Laws, The Hague 1997. 29 See the report of the Council of Europe, July 1997, pp. 10-11
(1997)on the subject <Legal problems relating to parentage=. The first part of the report ends with a compilation of the international instruments drawn up by the Committee of ministers of the Council of Europe, recommendations and resolutions concerning children and adults and conventions. The current work on family law is described at the end of the first part of the report. Much of the work on family law undertaken within the Council of Europe has been prepared by the Committee of experts on family law. The main task of this Committee of experts is to examine problems relating to family law which might lend themselves to action at a European level. It is mentioned that the Committee is currently preparing a hand book on European standards in family law containing principles drawn in particular from Council of Europe Conventions, includ ing decisions of the European Court of Human Rights and Recommendations. Two other committees deal with certain aspects of family law, the Convention Committee on the custody convention and the Committee of experts on nationality, which has prepared the European Convention on nationality of 7 November 1997. Finally, there is a group of specialists who are study ing and preparing draft principles concerning the legal aspects of acts of incapacitated persons and other vulnerable adults The second part of the report contains a collection of texts of the Council of Europe in the field of family law. 33 2. The road towards a European family law In the field of family law, there are reports of an increasing intensity of norms which are also influenced by international treaties to which the European countries are parties. Notwithstanding the fact that this here concerns, in the first place, an increase in national norms, it is also true that this increase is inevitably coupled with attuning these norms to similar developments and growth processes abroad. So, they are a result of the influence exerted by these foreign developments or by foreign growth processes acting as a source of inspiration. Attuning such norms, as referred to above, is not only inevitable, but it is also a necessity within a united Europe While the law is being integrated, a differentiation is also being made between unification and harmonisation. The realisation of uniform regulations, that is to say, identical provisions, belongs to this unification. This form of legal integration can be attained not only by means of international treaties and by regulations as far as they concern the European Union, but also by means of similar national rules. In connection with the latter, Martiny speaks of Parallelgesetgebung, Rieg of auto-harmonisation. A good example of unification of the law 30ldem,pp.11-12 Idem, pp. 12-22 Idem, pp 22-25 Texts of the recommendations(totalling 7)of the Parliamentary Assembly and of the conventions( totalling 7), resolutions and recommendations( totalling 18)of the Committee of Ministers cit(n. 20), p Op. cit.(n. 17), p. 486 with references to Neuhaus and Luther(nn. 38 and 39)
7 (1997) on the subject <Legal problems relating to parentage=. 30 The first part of the report ends with a compilation of the international instruments drawn up by the Committee of Ministers of the Council of Europe, recommendations and resolutions concerning children and adults and conventions.31 The current work on family law is described at the end of the first part of the report.32 Much of the work on family law undertaken within the Council of Europe has been prepared by the Committee of experts on family law. The main task of this Committee of experts is to examine problems relating to family law which might lend themselves to action at a European level. It is mentioned that the Committee is currently preparing a handbook on European standards in family law containing principles drawn in particular from Council of Europe Conventions, including decisions of the European Court of Human Rights and Recommendations. Two other committees deal with certain aspects of family law, the Convention Committee on the custody convention and the Committee of experts on nationality, which has prepared the European Convention on nationality of 7 November 1997. Finally, there is a group of specialists who are studying and preparing draft principles concerning the legal aspects of acts of incapacitated persons and other vulnerable adults. The second part of the report contains a collection of texts of the Council of Europe in the field of family law.33 2. The road towards a European family law In the field of family law, there are reports of an increasing intensity of norms which are also influenced by international treaties to which the European countries are parties. Notwithstanding the fact that this here concerns, in the first place, an increase in national norms, it is also true that this increase is inevitably coupled with attuning these norms to similar developments and growth processes abroad. So, they are a result of the influence exerted by these foreign developments or by foreign growth processes acting as a source of inspiration. Attuning such norms, as referred to above, is not only inevitable, but it is also a necessity within a united Europe. While the law is being integrated, a differentiation is also being made between unification and harmonisation. The realisation of uniform regulations, that is to say, identical provisions, belongs to this unification. This form of legal integration can be attained not only by means of international treaties and by regulations as far as they concern the European Union, but also by means of similar national rules. In connection with the latter, Martiny speaks of Parallelgesetzgebung, 34 Rieg of auto-harmonisation. 35 A good example of unification of the law 30 Idem, pp. 11-12. 31 Idem, pp. 12-22. 32 Idem, pp. 22-25. 33 Texts of the recommendations (totalling 7) of the Parliamentary Assembly and of the conventions (totalling 7), resolutions and recommendations (totalling 18) of the Committee of Ministers. 34 Op. cit (n. 20), p. 422. 35 Op. cit. (n. 17), p. 486 with references to Neuhaus and Luther (nn. 38 and 39)
of property is the UN Convention on Contracts for the International Sale of Good Harmonisation of the law, on the other hand, is not d irected towards literal harmony of the text, but merely towards a convergence as regards the contents of the regulations. In the European Union this harmonisation of the law is mainly attained by means of the Directives. Up until now there has been no question within the European Union of any coordinated mutual attuning of the family law of the Member States. No European Directives or regulations exist in the field of persons and family law. For the time being, family law does not take centre stage in the efforts directed towards the economic and political integration of Europe. 36 The great mutual differences between the national legislations within one Europe without territorial borders, however, forms a serious imped iment to attaining an actual European identity. Economic and political integration will finally make it necessary to integrate family law, or at least to attune the family law regulations to a considerable degree. It seems inevitable that this legal field will also, despite cultural differences, exhibit more uniformity in the course of time. Because, for the time being there is a lack of any concrete measures within the eu to initiate any convergence of material family law, let alone to compel any such convergence, it is up to legal science to take the lead by means of structural and fund amental comparative law research in order to expose the differences and similarities and, subsequently, to elaborate proposals for such norms or principles of a European family law. By means of similar research, the European Parliament's resolution of 29 October 1993can also be elaborated upon. In this resolution, the Commission was requested to conduct a comparative law investigation into the legislations of the Member States in the specific contexts of marriage, divorce, awarding custody of children and family law in general, so that the Member States would be in a position to make recommendations as regards national and/or international provisions which may be necessary for, among other things, the protection of children as well as the application of their rights, and in order to assure parents It is only by means of this comparative law method that differences and similarit ies can be distinguished in the national legislations, so that on the basis thereof principles of European family law can be made more explicit. The latter may occur either in the form of a Restatement based on the American model, or in the form of an elaborated system of principles of Europ family law, based on the example of UNIDROITs Principles of International Commercia ean Contracts(1994)and the Lando Commission's Principles of European Contract Law. A similar Bestandsaufnahme would make it possible to elaborate and to systematise the similarities and further, to develop the existing points of departure. A European Restatement in the field of family law would not only be able to prepare and guide the European legal systems as regards necessary changes, but could also influence those changes themselves, according to martiny. 3 3. The usefulness of a european family law General principles of European family law are being considered for various purp they may function as a source of inspiration for national and international legislators. A second According to De Groot, op cit. (n. 9),p. 32 ubl. EC No c 315/65 Op.ci.(n.20),p.452
8 of property is the UN Convention on Contracts for the International Sale of Goods. Harmonisation of the law, on the other hand, is not directed towards literal harmony of the text, but merely towards a convergence as regards the contents of the regulations. In the European Union this harmonisation of the law is mainly attained by means of the Directives. Up until now there has been no question within the European Union of any coordinated mutual attuning of the family law of the Member States. No European Directives or regulations exist in the field of persons and family law. For the time being, family law does not take centre stage in the efforts directed towards the economic and political integration of Europe.36 The great mutual differences between the national legislations within one Europe without territorial borders, however, forms a serious impediment to attaining an actual European identity. Economic and political integration will finally make it necessary to integrate family law, or at least to attune the family law regulations to a considerable degree. It seems inevitable that this legal field will also, despite cultural differences, exhibit more uniformity in the course of time. Because, for the time being, there is a lack of any concrete measures within the EU to initiate any convergence of material family law, let alone to compel any such convergence, it is up to legal science to take the lead by means of structural and fundamental comparative law research in order to expose the differences and similarities and, subsequently, to elaborate proposals for such norms or principles of a European family law. By means of similar research, the European Parliament's resolution of 29 October 199337 can also be elaborated upon. In this resolution, the Commission was requested to conduct a comparative law investigation into the legislations of the Member States in the specific contexts of marriage, divorce, awarding custody of children and family law in general, so that the Member States would be in a position to make recommendations as regards national and/or international provisions which may be necessary for, among other things, the protection of children as well as the application of their rights, and in order to assure parents. It is only by means of this comparative law method that differences and similarities can be distinguished in the national legislations, so that on the basis thereof principles of European family law can be made more explicit. The latter may occur either in the form of a Restatement, based on the American model, or in the form of an elaborated system of principles of European family law, based on the example of UNIDROIT's Principles of International Commercial Contracts (1994) and the Lando Commission's Principles of European Contract Law. A similar Bestandsaufnahme would make it possible to elaborate and to systematise the similarities and, further, to develop the existing points of departure. A European Restatement in the field of family law would not only be able to prepare and guide the European legal systems as regards necessary changes, but could also influence those changes themselves, according to Martiny.38 3. The usefulness of a European family law General principles of European family law are being considered for various purposes. Firstly, they may function as a source of inspiration for national and international legislators. A second 36 According to De Groot, op. cit. (n. 9), p. 32. 37 Publ. EC No. C 315/652. 38 Op. cit. (n. 20), p. 452
function is for a European family law to act as an alternative/subsidiary law which is applicable in the case of a legal relationship having foreign elements and where the national law indicated by the conflict law cannot be discovered by the court. 3 A third function is that suggested by De Groot: 4 the use of an optional European family law in international legal relationships instead of resorting to national law. Alongside national legal systems there could be, as it were,a transnational family law system that parties could specifically declare to be applicable to their gal relationship This vision presupposes the fact that the conflict law of the applicable court allows for a legal choice in all the fields of persons and family law. Although party autonomy is gaining ground in international family law, it still does not specifically lead, in contrast to international property law, to its predominance in the private international law systems of Europe 4. The subject matter and method of research Which areas of family law can first be considered for researching general principles of European family law? The following immed iately come to mind the property law aspects of marriage and divorce, the property law aspects of cohabitation outside marriage, the rights of minors and the protection of minors. As the method of research, the comparative law method should be used This method makes it possible to discern the common core of family law in Europe. Furthermore, with the aid of this method the best solution can be chosen, a solution which has been developed in the legal systems investigated in connection with similar problems which have occurred there These norms can be derived from the common solutions of various legal systems where there is talk of a certain consensus, or from a solution belonging to one of the legal systems which may be considered for adoption in the other legal systems on account of its intrinsic value The question which then arises is which legal systems should be involved in a comparative law study such as the one ad vocated here. An investigation into the legal systems of all the EU Member States will in all probability be doomed to fail because of the language problems to be expected. Italian, Spanish, Portuguese and the Scandinavian languages are not readily included in the linguistic capabilities of the average Dutch comparative lawyer. From a and Wales, the Netherlands and Belgium should in any case be studied.42 Independent of the nd practical point of view, therefore, the family law systems of France, Germany, Austria, Engla linguistic capabilities of the researcher or the research team, it may also be possible to study the field of family law. 4 The research may not only be limited to the text of a certain Act, the e laws of the Scand inavian countries which are well-known for their innovative solutions in the On this see K. Boele-Woelki, <De toepassing van een surrogaatrecht=, in: G.E. Schmidt and J.A. Freedberg-Swartzburg(eds ) Het NIPR geannoteerd, The Hague 1996, pp 3-12 0Op.ct.(n.9),pp.32-33 See D. Kokkini-latridou et al, Een inleiding tot het rechtsvergeljkende onderzoek, Deventer 1988 pp 128 188 Inspiration can also be drawn from the new codifications in Eastern European countries, such as russian law. On this see the contribution by M.V. Antokolskaya, <Russian family law=, Tijdschrift voor Familie-en drecht 1997, vol. 19, no 3, pp. 54-61 Concerning the legal systems of these countries, a comparatively great deal is published in the English
9 function is for a European family law to act as an alternative/subsidiary law which is applicable in the case of a legal relationship having foreign elements and where the national law indicated by the conflict law cannot be discovered by the court.39 A third function is that suggested by De Groot:40 the use of an optional European family law in international legal relationships instead of resorting to national law. Alongside national legal systems there could be, as it were, a transnational family law system that parties could specifically declare to be applicable to their legal relationship. This vision presupposes the fact that the conflict law of the applicable court allows for a legal choice in all the fields of persons and family law. Although party autonomy is gaining ground in international family law, it still does not specifically lead, in contrast to international property law, to its predominance in the private international law systems of Europe. 4. The subject matter and method of research Which areas of family law can first be considered for researching general principles of European family law? The following immediately come to mind: the property law aspects of marriage and divorce, the property law aspects of cohabitation outside marriage, the rights of minors and the protection of minors. As the method of research, the comparative law method should be used.41 This method makes it possible to discern the common core of family law in Europe. Furthermore, with the aid of this method the best solution can be chosen, a solution which has been developed in the legal systems investigated in connection with similar problems which have occurred there. These norms can be derived from the common solutions of various legal systems where there is talk of a certain consensus, or from a solution belonging to one of the legal systems which may be considered for adoption in the other legal systems on account of its intrinsic value. The question which then arises is which legal systems should be involved in a comparative law study such as the one advocated here. An investigation into the legal systems of all the EU Member States will in all probability be doomed to fail because of the language problems to be expected. Italian, Spanish, Portuguese and the Scandinavian languages are not readily included in the linguistic capabilities of the average Dutch comparative lawyer. From a practical point of view, therefore, the family law systems of France, Germany, Austria, England and Wales, the Netherlands and Belgium should in any case be studied.42 Independent of the linguistic capabilities of the researcher or the research team, it may also be possible to study the laws of the Scandinavian countries which are well-known for their innovative solutions in the field of family law.43 The research may not only be limited to the text of a certain Act, the 39 On this see K. Boele-Woelki, <De toepassing van een surrogaatrecht=, in: G.E. Schmidt and J.A. Freedberg-Swartzburg (eds.), Het NIPR geannoteerd, The Hague 1996, pp. 3-12. 40 Op. cit. (n. 9), pp. 32-33. 41 See D. Kokkini-Iatridou et al., Een inleiding tot het rechtsvergelijkende onderzoek, Deventer 1988 pp. 128- 188. 42 Inspiration can also be drawn from the new codifications in Eastern European countries, such as Russian family law. On this see the contribution by M.V. Antokolskaya, <Russian family law=, Tijdschrift voor Familie- en Jeugdrecht 1997, vol. 19, no. 3, pp. 54-61. 43 Concerning the legal systems of these countries, a comparatively great deal is published in the English
preparatory materials therefor and the legal literature concerning certain legal systems Interviews with experts* from the countries in question, who will be able to outline the background to and the practical application of certain regulations, should also play a significant role. The research should, in other words, not be limited to the law as it appears in the books, but it should also embrace the law in action An important d istinguishing feature of Europe is indeed the diversity of cultures.45 Should these cultures be subject to harmonisation, then national identity would be relinquished If this development should materialise, the field of family law must be taken thoroughly into consideration. The norms of family law are to a certain degree culturally determined +o With a comparative law research into family law, generally placing the objective of the research within a sociological, economic, political, ideological and historic national framework becomes a necessity. Within this framework the formulation of conclusions must be thoroughly taken into account The objective of the research should be to examine (a) which methods are used in the various legal systems in order to attain equality between men and women, whether married or cohabiting, as regards matrimonial property law, the social requirements concerning the rights and the protection of minors (b)whether any common principles and regulations can be traced and, if so, whether certain gal systems have created techniques and/or institutions therefor which up until now have remained unknown in other legal systems, but which, nevertheless, have their merits, so that they can be considered for introduction in other legal systems With the formulation of principles of a European family law based on comparative law however, the compulsory framework of existing European norms should first be indicated In the comparative law research, this framework must be taken as the hard core of any point of departure. The influence of European norms on national family law of the EU Member States considered as a necessary preliminary investigation for the purposes of the <follow-up= research in certain fields 4. 1 The influence of European norms on national family law in Europ Although family law still displays a great diversity in the national legislations within Europe, the influence of European norms on national family law is increasingly beginning to manifest itself. The case law of the Court of Human Rights in Strasbourg as regards article 8(the right to family life) has, in a number of European countries(Great Britain, France, the Netherlands), resulted in an adaptation of the legislation concerning parental authority both within marriage and after ngua ge. Such as judges, advocates and social workers See H. Collins, <European Private Law and the Cultural Identity of States=, European Review of private Lan1995,pp.353-365 Martiny, op. cit (n. 20), p. 438
10 preparatory materials therefor and the legal literature concerning certain legal systems. Interviews with experts44 from the countries in question, who will be able to outline the background to and the practical application of certain regulations, should also play a significant role. The research should, in other words, not be limited to the law as it appears in the books, but it should also embrace the law in action. An important distinguishing feature of Europe is indeed the diversity of cultures.45 Should these cultures be subject to harmonisation, then national identity would be relinquished. If this development should materialise, the field of family law must be taken thoroughly into consideration. The norms of family law are to a certain degree culturally determined.46 With a comparative law research into family law, generally placing the objective of the research within a sociological, economic, political, ideological and historic national framework becomes a necessity. Within this framework the formulation of conclusions must be thoroughly taken into account. The objective of the research should be to examine: (a) which methods are used in the various legal systems in order to attain - equality between men and women, whether married or cohabiting, as regards matrimonial property law; - the social requirements concerning the rights and the protection of minors; (b) whether any common principles and regulations can be traced and, if so, whether certain legal systems have created techniques and/or institutions therefor which up until now have remained unknown in other legal systems, but which, nevertheless, have their merits, so that they can be considered for introduction in other legal systems. With the formulation of principles of a European family law based on comparative law, however, the compulsory framework of existing European norms should first be indicated. In the comparative law research, this framework must be taken as the hard core of any point of departure. The influence of European norms on national family law of the EU Member States is considered as a necessary preliminary investigation for the purposes of the <follow-up= research in certain fields. 4.1 The influence of European norms on national family law in Europe Although family law still displays a great diversity in the national legislations within Europe, the influence of European norms on national family law is increasingly beginning to manifest itself. The case law of the Court of Human Rights in Strasbourg as regards Article 8 (the right to family life) has, in a number of European countries (Great Britain, France, the Netherlands), resulted in an adaptation of the legislation concerning parental authority both within marriage and after language. 44 Such as judges, advocates and social workers. 45 See H. Collins, <European Private Law and the Cultural Identity of States=, European Review of Private Law 1995, pp. 353-365. 46 Martiny, op. cit. (n. 20), p. 438
