1. Family as a legal institution
The social definition of family and its values and advantages to each individual very much depends on the experience of the individuals and on their perceptions of the personal bonds. The definition in law, likewise, varies, and the legal concept of family may be different from the sociological or psychological one. A common feature may be the social union formed by family members, but who exactly might or ought to be regarded as a family member may vary significantly. A direct biological connection of two persons by descent is generally considered to be a connection establishing a family relationship, but the inclusion of collateral and remote relatives cannot be taken for granted.
‘Family’, as a legal institution, calls for a legal relationship between the family members. This legal relationship may result out of a legally acknowledged blood relationship, a legal act (such as recognition, adoption or marriage) or out of a legally relevant factual act (such as the acceptance of a person to the household) or any combination thereof. Each society and each epoch defines which incidents are regarded as legally relevant. Therefore, the definition of ‘family’ differs, sometimes substantially, from legal system to legal system. The legal concept is influenced by the social and societal functions of the family in the particular community and by the legal significance of family membership. The social and societal functions of families have changed considerably during the last century. The same is true with regard to the legal relevance of family ties. Legal rules have gained more importance for the inner circle of relatives, whereas they have less impact on remote relations. In addition, the term ‘family’ is not necessarily defined to include the same relationships or persons for all legal questions and purposes within a particular legal system but may vary according to the respective aims of the legal frameworks involved. Sometimes the definition may be broadened to include a wider circle of relationships and persons and sometimes the inner circle only may be included.
2. From household to multi-parent or ‘patchwork’ families
Former generations have had a broader notion of ‘family’. In Roman law all members of the house counted as family members (familia) independent of affinity and blood relations. The Germanic ‘munt’ (Germanic Codes (Germanenrechte)) also included the complete household. Nevertheless, the relationship by blood had special significance within that structure. Status, privileges and property could only be transferred within bloodlines. This rule of law was adhered to in later centuries as well. Priority was given to the ‘lawful issue’ and, between them, to the male line. Children born out of wedlock had inferior status even into the 1900s. This was evident in the Bürgerliches Gesetzbuch of 1900 which, for example, did not recognize the relationship between a father and his ‘illegitimate offspring’. In English law, the illegitimate son was labelled as filius nullius. Certain aspects of this discrimination lasted up to the end of the 20th century.
During the 20th century, the extended family lost most of its significance. Family as a social institution was comprised, more or less, only of parents and their minor children and, very often, even a single parent and his or her issue alone. Family law reflects this social change. The influence of ‘family needs’ has been reduced or has even vanished. Individual responsibility and the independence of the younger generation (eg in entering into marriage and in the administration of property) have been strengthened. Collateral relations have lost most of their significance (eg in maintenance law and as to facts prohibiting marriage). At the same time, family relations not built on blood relationships, but on a wilful act like recognition, adoption, and in-law-relations, have gained importance. Relations built solely on factual bonds, like the ‘child of the family’, receive little legal attention. This process of including factual relations, however, is progressing, at least as far as cohabitants are concerned.
Since the middle of the 20th century, significant changes have taken place with regard to gender equality and children born out of wedlock (human rights and fundamental rights (ChFR and ECHR)). Husband and wife are regarded as two separate individuals with equal rights. Sons and daughters are on equal footing (discrimination (general)). The husband/ father-dominated-family has been replaced by a partnership in which responsibility is shared by both spouses/parents.
With respect to these matters, legal systems have been shaped by the decisions of the European Court of Human Rights and those of the national courts which, in doing so, have primarily sought to enforce provisions of the European Convention on Human Rights (ECHR) and provisions of national constitutions (human rights and fundamental rights (ChFR and ECHR)). Social changes in the last decades (especially the frequency of divorces (divorce) followed by remarriages or by factual unions and the acceptance of same sex partnership), on one hand, have furthered the individualistic view of the needs of each family member and, on the other, have put more emphasis on in-law relations and the recognition of factual bonds (visitation rights of former cohabitants and step-parents). Thus, so-called ‘patchwork’ or multi-parent families have become common and embrace a multitude of personal relationships. The former extended, three-generation families have been replaced by horizontal relations of all kinds. Within these family relations, promoting the best interest of the child has become one of the paramount goals of family law. The protection of the child’s interests allows or even requires state intervention and state control in areas formerly left to the self-regulation of the family. The same is true with regard to the care for the old and weak family members, for whose care society has assumed certain legal responsibilities. In these areas, rules of family law and of social law are heavily intertwined.
The old-style extended family retains legal and factual importance mainly in issues concerning inheritance, maintenance and immigration.
3. Main issues
In compliance with the European Convention on Human Rights and the Human Rights Charter of the European Union (human rights and fundamental rights (ChFR and ECHR)), four general principles are common to all European legal systems: the protection of family life, gender equality, non-discriminatory rules for children born outside wedlock, and the protection of the best interest of the child should serve as a guideline for the legislature as well as for all acts by state authorities and judicial administration.
The most elaborate rules concern the parent-child relationship. In all European legal systems, a parent-child relationship is established by biological relationship, regardless of whether the parents are married to each other or not (parentage). In case of a married mother, most legal systems presume (rebuttable presumption) that her husband is the father of the child; whereas, in case of an unmarried mother, very often fatherhood has to (and can) be established by recognition or by judicial decision. Few of the former barriers to paternity proceedings remain—Italian law, for example, still requires a preliminary judicial investigation and bars the recognition of children from incestuous unions. Registration in birth certificates and the possession d’état may produce different effects in the various legal systems. Nevertheless, in most European family laws, the differentiation between birth during wedlock and birth outside wedlock has been reduced.
Many European legislatures have dealt with the problems of medically assisted reproduction either by limiting access to such procedures or by restricting legal rights with respect to various issues connected to them (eg in German law, no contestation of paternity in cases where artificial insemination has been consented to and no contestation in cases of embryo- or egg-donation; guaranteed anonymity of a sperm donor in various laws). The intensity of these regulations still varies greatly within and between European legal systems.
In all European family laws, it is possible to establish a parent-child relationship by adoption. In accordance with the European Convention on adoption, all European adoption laws require adoption by decree and are governed by the principle of ‘full adoption’. Adoption by decree is intended to ensure that the adoption is in the best interest of the child and that it will be nearly uncontestable. The principle of full adoption is intended to guarantee a complete integration of the adopted child into the family of the adopters. Thus, relations comparable to those of blood relationships are created not only with the adoptive parents but also with all members of their family (exception: Austrian and Turkish law); conversely, the link to the birth family is almost always cut completely, except in cases of step-parent adoption. The rules vary in details. For example, the anonymity of adoptive and biological parents, the child’s right to know its own origins and the ability to adopt (single persons, partners of a same-sex partnership or marriage) are treated differently by the Member States, and the ability to adopt persons of full age (possibly with minor consequences) is not provided for in all European family laws.
During the minority of the children, parental responsibility is entrusted to the parents, regardless of whether the parent-child relationship is based on biological parentage (real or presumed) or on adoption. Despite what is, in principle, equal treatment of all children born within or outside of wedlock, there are differences with regard to the role of the unwed father. In some legal systems, his rights are still very weak, although the European Court of Human Rights stresses not only the protection of the child’s best interest (ECtHR No 6833/74 – Marckx v Belgium, Series A No 31) but also the need to protect the rights of the biological father (ECtHR No 16/1993/411/490 – Keegan v Ireland, Series A No 290; ECtHR No 74969/01 – Görgülü v Germany). In this respect, the tension between psychological/social parenthood and the biological/genetic parent is of significance, as it is in questions concerning the relationship between foster parents and biological parents. Many legal systems have strengthened the legal position of foster parents by granting them greater competence to decide issues of parental responsibility and to reject or postpone return orders applied for by the legal/biological parent. Thus, on one hand the biological connection gains importance while, on the other, the role of the (solely) sociological/psychological parent is strengthened as well. The same is true with regard to contact rights of persons to whom the child has emotional or biological bonds (ECtHR No. 20578/07, Anayo/Germany) or who, at least, acted factually as parents. Consequently, tensions become visible between the principle of promoting the best interest of the child as the overall guideline in these matters and the principle of family autonomy.
The European Convention on Human Rights is complemented by the UN Convention on the Rights of Children, enacted by 192 states including all European states. In nearly all European states, protection against violence and abuse, the prohibition of child trafficking and support for malfunctioning families are the main goals of family (and social) law provisions.
Protection against violence is not limited to the protection of minors, but has been extended also to other family members and family-like relations in recent times (eg protection of the matrimonial home and the family home). The older generation needs protection, too, and not only with respect to violence. Families, as well as society, have to care for persons of advanced age who are in need. In principle, most states give priority to family autonomy where family members want to take responsibility for the weak. On the other hand, very often states do not enforce families’ obligations to care for members of the older generation to the same extent that such obligations are enforced for the benefit of minor children. This also applies to maintenance obligations. Many legal systems provide for maintenance obligations only in the direct line of descent and often such obligations are limited to minority or educational status. Thus, these obligations are not reciprocal and the responsibility to provide for the needs of those who have reached their majority and are unable to provide for themselves becomes the responsibility of society.
Nevertheless, collateral family relations and the extended family still have some significance. This is especially true with regard to inheritance laws (succession law). Except for the position of the surviving spouse who inherits together with blood relatives or even takes priority over them, if there is no will or other testamentary instrument, most European states distribute the estate of the deceased (only) among members of the legal family without any limitation to the degree of relationship but restricted to biological links or links by adoption.
These looser family bonds may also be important for general measures of family protection such as tax advantages, family benefits within the social security systems, landlord and tenant relations, privileges in civil and criminal proceedings and in immigration laws. Legal systems vary in this respect and have a broad range of provisions.
4. European family law
Within Europe, most states have integrated the principles and guidelines of international Conventions such as the European Convention on Human Rights, the UN Convention on the Protection of Children, and the European and the Hague Conventions on the Adoption of Children (human rights and fundamental rights (ChFR and ECHR)). Thus, the protection of the family, and especially of children, equal treatment of men and women, as well as of children independent of their birth, is common to nearly all European family laws, though there are still deficiencies and many differences in detail. The family has lost its significance as an institution guaranteeing status and privileges, but it is of overall importance as a refuge for the raising of children and as a protected zone for emotional bonds, sometimes even outside of legally established unions.
So far, the European legislature has taken steps to unify the laws of the European Member States only with regard to international family proceedings (Brussels IIbis, European Maintenance Regulation European civil procedure) and rules on the applicable law (European Maintenance Regulation in connection with the Hague Protocol 2007; Rome III Regulation private international law). But even there it has stressed the fundamental principle of considering the best interest of the child as the paramount factor and the importance of the child’s voice. In addition, two directives oblige Member States to facilitate cross-border family reunions. A research group financially supported by the European Union is working on principles for the harmonization of family law within the Member States and a model code for family law has been drafted. Whether the principle of free movement within the European Union (fundamental freedoms (general principles)) would be best served by rules on recognition of a civil status acquired in another Member State is under discussion. The legal rules are thus still in flux.
Heinrich Dörner, Industrialisierung und Familienrecht (1974); Mary Ann Glendon, The New Family and the New Property (1981); Michael Coester, Das Kindeswohl als Rechtsprinzip (1982); Dieter Martiny, ‘Europäisches Familienrecht, Notwendigkeit oder Utopie’ (1995) 59 RabelsZ 419; Walter Pintens, European Family Law (Casebook) (2001); Katharina Boele-Woelki (ed), Perspectives for the Unification and Harmonisation of Family Law in Europe (2003); Wolfram Müller-Freienfels, ‘The Emergence of Droit de Famille and Familienrecht in Continental Europe and the Introduction of Family Law in England’ (2003) 28 Journal of Family History 31–51; Gerhard Köbler, ‘Familienrecht im geschichtlichen Wandel’ in Festschrift Heinz Holzhauer (2005) 355; Ingeborg Schwenzer, Model Family Code from a Global Perspective (2006); Ingeborg Schwenzer, Tensions between Legal, Biological and Social Conceptions of Parentage (2007); Katharina Boele-Woelki and Tone Sverdrup (eds), European Challenges in Contemporary Family Law (2008).