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Summary Systematic overview Family law in Europe
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Systematic overview Family law in Europe
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OverviewFamily law in Europe
Levels of regulation
Always keep in mind the next levels of regulations when assessing a case:
National (domestic law of member states)
European Union (legislation and case law CJEU to establish internal market)
Council of Europe (conventions and case law ECtHR for basic human rights)
Hague conference on PIL
Soft law
Week 1: family law and ECHR system (art. 8 and 14)
ECHR
Article 8 ECHR – right to respect for Family life
Before going to ECtHR always exhaust national remedies and you have to be a victim.
1. Is this a case that falls under the scope of art. 8 ECHR?
o ECtHR has a broad interpretation, marriage is no longer required, not even
cohabitating.
2. Is there an infringement by the contracting state in regard to this right?
o If no, no violation
o If yes, go to 3
3. Is the infringement justifiable?
o In accordance with the (national) law of the state?
o Necessary in a democratic society
o Proportionality test (fair balance rest)
4. Is there a positive obligation under art. 8 in regard to family life?
o Markx v. Belgium: States have a positive obligation to act in a manner
calculated to allow family ties to develop normally (Johnston v. Ireland).
Article 8 (and 12) ECHR – right to respect for Private life
1. Is this a case that falls under the scope of art. 8 ECHR?
o Person’s identity.
2. Is there an infringement by the contracting state in regard to this right?
o If no, no violation
o If yes, go to 3
3. Is the infringement justifiable?
o In accordance with the (national) law (of the state)
o Necessary in a democratic society
o Proportionality test (fair balance test)
4. Is there a positive obligation?
Always read art. 14 (discrimination) in conjunction with the other provisions in the
ECHR.
, Week 2: Marriage, registered partnership and cohabitation
ECHR
Article 8 ECHR – same-sex couples and the right to respect for private and family life
Before going to ECtHR always exhaust national remedies and you have to be a victim.
1. Is this a case that falls under the scope of art. 8 ECHR?
o Schalk and Kopf v. Austria: same-sex couples do not only fall under the notion
of private life, but also fall under the notion family life, because same-sex
couples are just as capable as opposite-sex couples of entering into a stable
committed relationship
2. Is there an infringement by the contracting state in regard to this right?
o If no, no violation
o If yes, go to 3
3. Is the infringement justifiable?
o In accordance with the (national) law of the state?
o Necessary in a democratic society
o Proportionality test (fair balance rest)
4. Is there a positive obligation under art. 8?
o Oliari and others v. Italy: States have a positive obligation to provide for
recognition and protection of same-sex couples. Thus states must come up with
at least some legal framework for same-sex couples, but how they do so, if up
to the contracting states to decide. Uncertain if states that do not allow same-
sex marriage are obliged to recognize same-sex marriages legally established
in another state. Nevertheless, civil status should somehow be recognized
(principle of mutual recognition).
o Goodwin v. UK: Transgender persons have the right to marry according their
reassigned sex with an opposite-sex couple, otherwise it would lead to a
violation of art. 8 (and 12) ECHR to have the right to respect for private life.
Thus states are under the obligation to provide access for transgender persons
to marry.
Article 12 ECHR – Right to marry
Hämäläinen v. Finland; Schalk and Kopf v. Austria; Oliari and others v .Italy; Vallianatos
and others v. Greece: there is no positive obligation under the convention (Art. 12
ECHR) to grant same-sex couples the right to marry. States have a wide margin of
appreciation, because there is no consensus among states.
Goodwin v. UK: under article 12 ECHR transgender persons have the right to marry
someone of the opposite sex as the sex reassigned to them.
EU Law
The term ‘spouse’ under EU Law
Reed v. the Netherlands (ECJ); D and Kingdom of Sweden v. the Council: the term
spouse should be interpreted as meaning only to extend to married couples, because
it should be read in a community context in regard to all member states. there was no
development among member states for an extensive explanation of the term ‘spouse’.
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