The Latest in Comparative Family Law

Harry Willekens

This article reviews three important recent publications on comparative family law. These publications highlight new developments regarding the organisation of parental responsibility, divorce law, the recognition of the homosexual couple and the internationalisation of family law.

Recently, three important international sources for the latest developments in family law have been published: A. BAINHAM (ed.), The International Survey of Family Law 1997, the Hague, Nijhoff, 1999; EEKELAAR, J. and NHLAPO, T. (eds.), The Changing Family. Family Forms & Family Law, Oxford, Hart, 1998; Liber Amicorum Marie-Thérèse Meulders-Klein. Droit comparé des personnes et de la famille, Brussels, Bruylant, 1998. The first book is the latest addition to the International Society of Family Law’s series of annual surveys of family law reforms in the world; the second one is a selection of the best papers presented at this Society‘s ninth world conference held in Durban, 1997; the third one is a series of essays in honour of one of the world’s most renowned family law comparatists. Altogether, these books contain 102 articles, the bigger part of which are concerned with recent innovations and tre nds in family law all around the world. Some of the most interesting essays in the Meulders-Klein reader and in The Changing Family deal with philosophical, sociological, historical or political questions, but I will, for the purposes of this newsletter, concentrate on the contributions focusing on recent developments in the law, and especially on those reviewing developments in Europe.

Reviewing the many contributions in these readers, covering several dozen of the world’s and the majority of Europe’s legal systems, one can conclude that important developments are under way in the following respects :

1. As a result of the growth in divorce and cohabitation rates and, to a lesser extent, of the emergence of consciously chosen single motherhood, more and more situations develop where the facts regarding the care for children do not any longer (or did at no time) correspond to the legal tie between parent and child as established at the time of birth. Many children live together with only one parent (or even step-parent), or in a "reconstituted" family consisting of their parent, their step-parent, the children of both and possibly the step-children these adults have brought with them from a former relationship. Until lately, most national laws took no account of this phenomenon and withheld all parental rights and most parental duties from step-parents, with the result that the children living together, presumably under similar factual conditions, in a "reconstituted" household had different legal statuses vis-à-vis the adults caring for them. Recent law reforms have reacted, in somewhat contradictory ways, to the new realities. On the one hand, they have introduced the principle of joint custody of the original parents upon divorce or separation (DOPFFEL, P. (ed.), Kindschaftsrecht im Wandel, Tübingen, Mohr, 1994; FORDER C., An Undutchable Family Law: Partnership, Parenthood, Social Parenthood, Names and Some Article 8 ECHR Case Law, in International Survey of Family Law 1997, 259-307; FRANK, R., Parentage Law Reformed, in International Survey of Family Law 1997, 167-182; HEYVAERT, A., Het personen- en gezinsrecht ont(k)leed, Ghent, Mys & Breesch, 1995; THÉRY, I., Le démariage, Paris, Odile Jacob, 1996) and somewhat strengthened the position of the absent parent. Hence, the step-parent’s position has been weakened even more (only to some extent, for the introduction of joint custody has rather had the nature of a symbolical step and does not give the p arent who does not share a household with the child the possibility to intervene in the day-to-day decisions of the caring process). On the other hand, in England and Wales and in the Netherlands a notion of "parental responsibility" has been introduced that allows for the attribution of (some) parental rights and duties to those actually caring for the child (EEKELAAR, J. and MACLEAN, M., The Parental Obligation, Oxford, Hart, 1997; FORDER, C., l.c.). In many countries, the law of parent-child relations, as witnessed by a large number of the contributions to these collections of essays, appears to be in turmoil: the subject of an ongoing and virulent debate, in which some stress the children’s rights, others the need for child protection, the laws are continuously being changed (cp.: in the Meulders-Klein collection: CARPI, F., La protection des biens des mineurs: les orientations et l’évolution de la Cour constitutionelle en Italie, 21-30; COESTER-WALTJEN, D. , Einige Aspekte der Reform des Deutschen Kindschaftrechts, 31-49; DALCQ DEPOORTER, J., L’enfant de qui ?, 115-142; OLIVEIRA LEITE, E., Le droit (non sacré) de visite, 161-180; EEKELAAR, J., Children’s rights: from battle cry to working principle, 197-215; FRANK, R., Die neue Rolle des nichtehelichen Vaters nach der Reform des Kindschaftsrechts in Deutschland, 231-253; FREEMAN, M., Child-rearing: private matter or public concern?, 255-281; RUBELLIN-DEVICHI, C., Les grandes réformes en cours dans le droit de la famille en France, 661-696; in The International Survey of Family Law 1997; LODRUP, P., The 1997 Revision of the Norwegian Children Act of 1981, 345-350).

2. Neither has the divorce law reform come to a stop. The rise in the divorce rate, both in countries with very liberal laws and in those (e.g., the Southern European ones, Belgium, Austria) where getting a divorce is still a relatively difficult and lengthy undertaking, gives rise to legal reactions in two opposite directions. On the one hand, it is seen as less and less meaningful to ask the petitioners to give grounds for their wish to divorce; on the other hand, there exists concern about the spread of divorce and about the social implications of divorce for dependent women and especially children. An interesting illustration of how both considerations can play a role in the same reform is to be found in the English-Welsh Family Law Act 1996, which has not yet entered into force. This reform act dispenses totally with any inquiry into the grounds for divorce, and in its radicality has in this respect only been preceded by Swedish law, but nevertheless the new la w will make it tougher rather than easier to get a divorce, for it introduces procedural barriers to a swift divorce (cooling off periods) and, as a rule, allows divorce only on the condition that first all the economic consequences of the intended divorce have been decided upon (DOUGLAS, G., "Family Values" to the Fore?, in BAINHAM, A. (ed.), The International Survey of Family Law 1996, the Hague, Nijhoff, 1998, 157-178). This reform must thus be the first one in decades that actually makes access to divorce more difficult. It is parallelled by the introduction, by a statute of 23 June 1997, into Louisiana law of something like a new institution, "covenant marriage", enabling people to opt for a second type of marriage in which the grounds for divorce are more restricted than has been the case until now under the liberal Louisiana law. In other U.S. states, the introduction of a "covenant marriage" not providing for divorce at all except in cases of adultery is being discussed (GROSSEN, M., Mariages à choix ? À propos du "covenant marriage" du droit louisianais, in the Meulders-Klein collection, 305-314).

3. There is growing recognition of the homosexual couple in the legal regulation of the family. All the Nordic countries, except for Finland, as well as the Netherlands have created the institution of "registered partnership", thus enabling homosexual couples who wish to do so to acquire all the rights and duties of spouses, with the sole substantial exception of the rights pertaining to parent-child relations (FORDER, C., l.c.; HELIN, M., Finland. Enforcement of Custody, Access and Residence Orders, Intercountry Adoptions and Registration of Same Sex Couples, in International Survey of Family Law 1997, 153-165; LUND-ANDERSEN, I., Cohabitation and Registered Partnership in Scandinavia – The Legal Position of Homosexuals, in The Changing Family, 397-404). In Belgium, a kind of registered partnership has been created that, though symbolically recognising the legitimacy of the homosexual couple, is of very little practical import, because each p arty can terminate partnership duties at will without having to give notice (RENCHON, J., Mariage, cohabitation légale et union libre, in Meulders-Klein collection, 549-573). In France, a partial recognition of the legitimacy of the homosexual union has taken the road of social security law and of case law deeming homosexuality an irrelevant element in awarding the surviving cohabitee damages for the loss of consortium and in custody decisions (RUBELLIN-DEVICHI, l.c.).

4. International and supranational law, though still much less concerned with the family than with the harmonisation of the conditions of trade, slowly but surely acquire more importance in family law. This is partly the result of specific international treaties, such as the 1980 Hague International Child Abduction Convention or the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, partly of the rather extensive interpretation the European Court of Human Rights and some national courts, especially in Belgium and the Netherlands (FORDER, C., l.c.), lately also in France (cp. Cour de Cassation, Chambre civile, 6 March 1996, Receuil Dalloz, 1997, 167), give to the right to protect family life, guaranteed by art. 8 of the European Human Rights Convention. Although the European Convention leaves a rather wide margin of appreciation to the national authorities in deciding how to regulate family life, the courts, invoking the Convention, have, among other things, banned the discrimination of children born out of wedlock (in the European Court cases of Marckx v. Belgium of 13 June 1979, Johnston v. Ireland of 18 December 1986, and Inze v. Austria of 28 October 1987) as well as the unmarried mother’s right of veto as to the establishment of her child’s paternity (Belgian Court of Arbitration, 29 December 1990, Rechtskundig Weekblad, 1990-1991, 1232), and drawn limits to the state’s discretion in controlling the exercise of parental authority and in removing children from their parents (e.g., in the European Court cases of Olsson v. Sweden of 27 November 1992 and Hokkanen v. Finland of 23 September 1994). The use of the European convention as a touchstone of the national laws obviously tends to further the convergence of these laws. Still, this effect is fragmentary: there is no master plan behind this development, it is simply pushed forward by the accident of some cases (among the many) reaching the European Court or the national supreme courts. This development is, moreover, uneven, because some countries (e.g., Belgium, the Netherlands, France, Germany) accept the direct applicability of the Convention in the national legal order, or, to put it differently, allow for the possibility of a Convention-based court judgement to overrule national legislation, whereas others (e.g., the United Kingdom) take the position that the Convention only applies indirectly, i.e., that legislation which violates the Convention can only be repealed by the national legislator himself.

The books under review here do not only contain some original essays and interesting reports on the latest developments in legislation and case law, but also several introductory reports that derive their value from the fact that they are among the rare sources available in English on this or that national family law. This holds for reports on family law in Belarus, Croatia, Macedonia, Latvia, Turkey and Greece (in International Survey 1997: BUROVA, S., Regulation of Marriage and Family Relations in Belarus, 45-49; HRABAR, D., Facing Family Violence – A Family Law Answer to the Child’s Protection, 127-135; SPIROVIK-TRPENOVSKA, L., Development of Family Law in Macedonia, 229-240; VEBERS, J., Family Law in Latvia: From Establishment of the Independent State of Latvia in 1918 to Restoration of Independence in 1993, 207-227; ÖRÜCÜ, E., Improving the Lot of Women and Children, 465-483; in The Changing Family: KOUNOUGERI-MANOLEDAKI, E., Child Welfare and Adoption in Modern Greek Law, 565-570).

What, finally, strikes one, looking at the impressive amount of expertise brought together in these three volumes, is how little of the work is truly comparative, rather than just a synthesis, in a foreign language, of developments in one or the other national legal system. This is not so much a shortcoming of the International Survey, which functions in the main as an information channel to keep those interested up to date as to the latest developments in the different national laws, but it is rather a disappointment regarding the two other volumes, which are explicitly comparative in purpose. An outstanding exception, however, is to be found in A. AGELL’s contribution to the Meulders-Klein collection, "The division of property upon divorce from a European perspective" (1-20). On a few pages, Agell manages to give a synthetic overview of the different types of regulation applicable in Western European countries as to the division of property upon d ivorce. Starting from a concrete example, he masterfully shows how difficult it is to deduce concrete results from the general principles of the marital property systems involved. One would guess that the economically weaker party would be better off under the system of community of acquisitions applicable in the Romanic legal systems than under the English system of separation of property, but it turns out that this is wholly dependent on the exact figures we are talking about. More generally, from Agell’s overview it emerges that there is only little correspondence between the principles of the marital property system as applicable standing marriage and the economic consequences of divorce: legal systems that treat property as separate during marriage (Germany, England & Wales, the Scandinavian countries, Switzerland) nevertheless divide it upon divorce as though it had been (at least partially) common.

Prof. Dr. Harry Willekens
MZES, Research Department A
L7, 1
D-68131 Mannheim
Tel.: 0049(0)621-292-1722
Fax: 0049(0)621-292-1714
E-mail: Harry.Willekens@mzes.uni-mannheim.de

Harry Willekens gained a degree in law in Belgium and was a lecturer at the universities of Maastricht and Tilburg in The Netherlands. He specialized in family law and the sociology of law. Since 1999 he holds a position as part-time professor for sociology of law at the University of Antwerp. At the moment he is conducting a research project on the historical development of family law in Western Europe from a comparative perspective.