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