College aantekeningen
Lectures Family law in Europe
- Instelling
- Maastricht University (UM)
Lecture notes of 62 pages for the course family law in Europe at UM (Lecture notes FLE)
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Voorbeeld 4 van de 62 pagina's
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Lectures Family Law in EuropeLecture 1. The interrelationship between the work of the Council of
Europe, the EU and the Hague Conference on Private International
Law and the relevance of private international law to family law in
practice
Divorce…
For many people is it dividing everything (family, time, money, assets). It is all about the
responsibility’s that families have to each other; I have a right to… but also you have the
responsibilities, so rights vs. responsibilities. It is about analysing: what the law says, how it applies in
the case, and if it is not fair, protect your clients position.
Wat is family law?
• Who can marry?
• Who must assume responsibility for children?
• What duties do spouses have towards one another?
All states recognise marriage between man and woman. All states provide for parenthood of the
husband for a child born during the marriage.
• From the traditional family to the expansion of family law to a wider range of relationships.
This expansion is not complete in all States. E.g: the regulation (or deliberate lack thereof) of
– Relationships between same-sex partners,; do they have a right? As same as married
couples
– Cohabitants,
– Gametes donors,
– Step-parent relationships…
Often there is no regulation on those hot topics, because they are too sensitive. Sometimes, there is
no regulation because the state wants to protect the heteronormative nuclear family – the classical
family.
Wat is family law? Delineation
• Identified as a legal subject in the 19 th century
• Family law vs contract law; is family law private law?
Family law emerged as a legal topic in the 19th century by Von Savigny. He placed it opposite to
contract law. Unlike contract law, domestic family relationships had to be shaped by the statutes of
the people: father, daughter, were statutes one could not escape from and that beared
consequences for the whole life. Said otherwise, one cannot contract out of those status.
• Family law vs public law (rights and obligations)
As a result, many family law systems start from the marriage and the obligations that derive from it.
Family law can be opposed to public law. Family law protects people, vulnerable persons such as
children, minors. A partner victim of domestic abuse is vulnerable. How did family law evolve to put
an obligation on the State to protect a child at harm? Should the State leave a beaten child in a
household? No: the State must remove the child and place him/her in foster care?
• “Family law exceptionalism”:
– “Showground for political and religious struggles” (Smits, 2016). ‘Cultural constraints
argument’
– Sensitive, intimate and personal
– Mobility of families and family members
,The law for a long time refrained form intervening in what was going on behind doors. Family law
was considered different from other fields of law: family law exceptionalism. Family law triggers
sensitive, intimate, personal identity issues. Ex: allowing same-sex marriage, allowing same-sex
couples or single persons to adopt children.
Another difficulty is the mobility of families and family members. What if two nationals from
different Member States marry? What if they divorce? You need to check the validity conditions of
the marriage in both legal systems. A domestic case becomes very soon an international one. Ex: a
Dutch couple divorces and one of the ex-spouse wants to remarry with a Kosovo national.
This transnational reality for families causes tensions – ideological tensions, but also legal problems.
Ex: Kosovo might not recognise the Dutch divorce, so the ex-spouse will be considered still married
and will not be allowed to remarry because it would be bigamy.
Given this, it is unsurprising that there are grids at a regional level allowing uniform approaches to
some issues such as divorce.
What is family law for?
• Ambivalence about what we want family law to do and confusion about: “how far [family
law] should try to serve the interests of the individuals involved and how far it should serve
the interests of the wider family group and of the community as a whole”. Families change
and evolve and the law is flexible enough.
• Some have questioned whether family law is uncertain about its proper role or purpose. This
uncertainty appears that family law’s approach to families appears ‘chaotic’. For Dewar
(2001) that is fine; “family relationships are ever changing and family practices are changing,
so it is neither possible nor desirable to achieve or even to seek normative consistency in
family law”
Families
Family: the forms or expressions of intimate and private living. Every sort: lesbian, gay, married,
cohabited etc.
Family should therefore include all types of families. Families eventually has nothing to do with
genetics, but about realities, obligations, responsibilities. Ex: what about a family were one of the
parents is not genetically a parent? They shared responsibilities, made join financial decisions,
everyone saw them as a family, but eventually they break up. What about that parent who is
genetically not a parent? His or her situation differs a lot depending on the State.
Who is family law for?
• Individual family members (mom, dad, children)
• Individual family groups, (grandparents, cousins)
• Other individuals or other family groups
• Employers, (maternity leave)
• Businesses, (who lend money to families)
• The state, church, community
What is family law for? Normative aims
• Family law makes a statement about that balance of responsibility and therefore about the
public and private value of care, independence and dependence. What about the new
husband of a mother, who cares for the child emotionally and financially, while the father is
not in the picture?
, • Family law is “Responsibility for responsibility” (Diduck, 2011)
– Distribution of family wealth and financial responsibilities
– Care of dependants
• Public enforcement of private responsibilities of individual family members (“social security
system”), state doesn’t need to provide a family unit
What is family law for? Ideological struggle
• The purpose of family law is to allocate and enforce responsibility for those responsibilities. If
this is true, then perhaps there is no chaos, plurality, or uncertainty about family law’s
purpose
• BUT ideological struggle’ over what it means to be a mother, daughter, wife, father, or
husband, then family law is for allocating and enforcing the responsibilities that are linked to
those identities
Ex: Radmacher v. Granatino. Marriage between a German woman and a French-Italian man. They
enter into a marriage contract where they have to choose their matrimonial property regime. They
elect separate property and no financial provision. They moved to England, had two children, he gave
up his job and became a researcher at Oxford. His earning capacity reduced significantly during the
marriage. Their relationship broke out and Radmacher asks for divorce but German jurisdiction
refuse saying there was no jurisdiction for Germany. The only State having jurisdiction was the UK.
And the UK does not care about matrimonial property regime and the contracts signed in this
regard : it only cares for fairness. So UK law provides no clarity, no certainty, but fairness : UK law
wants to ensure that there is a financial responsibility for the spouses on the long-term. So Granatino
could claim half of the assets of Radmacher.
But the eventual solution was that it was fair to hold Granatino to his agreement – not because UK
law had to, but because it was fair.
Katrin Radmacher's ex-husband Nicolas Granatino went to the Supreme Court after appeal judges
slashed his divorce settlement from more than 5 millions to 1 million. Granatino also received 2,5
millions fund for a house, which whould return to Radmacher when the youngest of their two
daughters, aged 10 and 7, reaches 22. As a conclusion :
• Financial division on divorce is a caprice of outcome dependent on jurisdiction.
• Due respect for adult autonomy subject to safeguards.
For the majority of the Supreme Court : the husband's decision to abandon his lucrative career in the
city for the fields of academia was not motivated by the demands of the family, but reflected his own
preference.
Still, this decision triggers questions. Decisions like the one Granatino took to quit his job and become
a researcher are decisions that are taken in a family context, not alone! And this should be taken into
account.
Indeed, Baronness Hale issued a dissenting opinion (being the only family law judge sitting) : « Do we
want to encourage responsible families (and I would add, societies) in which people are able to
compromise their place in the world outside the home for the sake of their partners, their children
and their elderly or disabled relatives (and again I would add society) and can be properly
compensated for this if things go wrong ? I continue to hope that we do ». « What value do we place
, on those compromises and on that care work, and who is responsible for paying for them? ». These
questions go to the heart of what family law is for.
Levels of regulation (institutional)
How is family in Europe regulated?
1. National
− Domestic Law (Member States)
2. European Union
− Legislation, Regulations or directives
− Case Law (CJEU)
3. Council of Europe
− Case Law (ECtHR)
− Conventions and treaties
4. Hague Conference on Private International Law
5. ‘Soft Law’
National level
• Substantive law (e.g. parentage, divorce, cohabitation, civil status …) NL: boek 1 BW. Who
can get married etc. substantive family matters. What is the position? What obligations
arise?
– Civil Code, legislative acts
– Case law
– Significant diversity: Why? Are there constraints to this diversity?
• Private international law (cross-border aspects of all questions of private law, “law of
tolerance”) does not deal with the substantive law, identify the road signs to ensure that
there is at least one court is competent with the matter this is the law that they will apply
and if they apply and there is a judgement, that judgment will be recognised and will be
available for execution
– Civil Code, specific legislative act(s), doctrine (e.g. Book 10 Civil Code (NL), EGBGB
(D), Code Civil (F), 1987 Act (CH), case law (E&W)
– Regional (e.g. Council Reg. (EC) 4/2009 (Maintenance Reg.)→The Hague Protocol of
23 November 2007 on law applicable to maintenance
– International (e.g. 1996 Hague Child Protection Convention)
– Significant diversity: Why? Are there reasons to introduce some form of uniformity in
approach?
Cross-border dimension
Video HCCH. Two courts of two different countries are competent, then two jurisdictions. They apply
the national law. A dad is a legal father in state A and in state B he isn’t.
Example 1: Law applicable to divorce
Client is a national of State A and resident in State B with her husband who is a national of State C
and State A. What law applies to their divorce? Nationality (joint), habitual residence (joint), last joint
habitual residence, matrimonial home, lex fori, choice of law? Rome III, art. 8, provides for a rule in
such case.
National (examples)
• Nationality (joint); In the absence of a choice pursuant to Article 5, divorce and legal
separation shall be subject to the law of the state
• Habitual residence (joint); Where the spouses are habitually resident at the time the court is
seized; or, failing that
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