Principles of European Family Law (PEFL)
1. The Europeanization of family law
The Europeanization of family law has been a prominent component in the development of this field of law since the 1970s. The reasons for this evolution cannot only be found in the major sociological changes which characterize family law all over Europe, and the influence of human rights, which have altered family law especially due to the jurisdiction of the ECtHR, but also in a European awareness which transformed family law into a field of comparative law. Increasing migration, mixed marriages, international divorces and the acquisition of foreign property have contributed to this process.
Today, family law is no longer embedded in regional cultures to the degree it once was. But family law—as well as law in general—cannot be regarded as completely dissolved from cultural developments and backgrounds. Nevertheless, the topical reforms and tendencies show that national family laws are converging and melding notwithstanding important remaining differences.
The search for a ius commune, for a long time restricted to contract law and related fields with initiatives like the Lando Commission, now also focuses on family law. The outcome thereof has been, besides the creation of a comprehensive volume of literature, several concrete proposals which promote the spontaneous harmonization of laws and may contribute to a unification of laws over an intermediate or long-term perspective.
2. The Commission on European Family Law
Against the background of this development, the Commission on European Family Law was founded in 2001 as the result of an academic initiative. The reason for the establishment of this Commission is mainly the belief that family law—considering the mobility of European citizens—must play an important part in the search for a ius commune and that the existing instruments of private international law and the Council of Europe’s and the EU’s legislative and judicial activities are insufficient for fostering further harmonization. The Commission’s members are convinced that harmonization of family law is desirable to a certain degree in order to truly implement a free movement of persons and to enhance both the European identity and an efficient uniform area of law.
The Commission is composed of two bodies: The Organising Committee and the Expert Group.
The Commission drafts principles representing the ius commune of the respective legal orders which are useful for the national legislators as sources of inspiration. Where the common core does not point to a sustainable result or if the views of individual legal orders are so different that no common core exists, the Commission proposes its own solution on the basis of a better-law approach. In that case, just whose interest deserves protection has to be examined.
The drafting of the principles starts with a questionnaire established by the Organising Committee. The Expert Group’s members prepare reports on the respective legal situations in their jurisdictions. Draft principles are authored by one or more members of the Organising Committee, discussed within that body and finally presented to the Expert Group for consultancy.
The Commission has thus far drawn up principles regarding divorce and maintenance (2004) and parental responsibility (2007). Principles relating to matrimonial property law are presently on the agenda.
3. Principles of European Family Law regarding divorce and maintenance between former spouses
The traditional fault divorce is no longer relevant according to the principles of the Commission. The topical status of divorce law within the legal systems reveals that the majority of legal orders reject divorce based on fault or have evolved to systems in which those kinds of divorces play practically no role at all (divorce). Relevant to this development are the currently completed or upcoming reforms which are with increasing frequency adopting the system of irretrievable breakdown of the marriage—though fault as a reason for divorce is still not always excluded in all respects. In Austria and France, for example, divorces based on fault and irretrievable breakdown still exist side by side.
The Commission recommends two forms of divorce: divorce by mutual consent and unilateral divorce (principle 1:3).
Divorce by mutual consent is suggested as the preferred model due to its relevance in many legal orders and its humane character. It is deemed to be an autonomous ground for divorce rather than a sub-category of a divorce based on the irretrievable breakdown of the marriage. It can also be performed in cases where there is no agreement as to the divorce’s consequences. It is not linked to conditions such as a factual separation or the duration of the marriage (principle 1:4). The mere consent of both spouses is sufficient. If the spouses have children under the age of 16 years or if they could not agree on the consequences of the divorce, a reflection period is required (principle 1:5).
In its first draft, the Organising Committee suggested basing unilateral divorces on the principle of irretrievable breakdown of the marriage, modelled on Dutch and German law. In this initial version, the irretrievable breakdown had to be proven by factual separation. The Expert Group, however, advocated basing the divorce ground directly on factual separation and thus refused to mention the model of irretrievable breakdown which was deemed to be a meaningless hurdle. Henceforth, the principles provide for divorce without consent after a period of factual separation for one year (principle 1:8). In cases of exceptional hardship, the divorce may be granted in the absence of a factual separation period (principle 1:9).
The principles relating to maintenance between former spouses focus on the maxim of self-responsibility. In principle, each spouse has to provide for his or her own support after the divorce (principle 2:2). Maintenance can be granted if the creditor spouse has insufficient resources to meet his or her needs and if the debtor spouse is able to satisfy those needs (principle 2:3). In determining maintenance, one has to take into account factors such as the spouse’s employment ability, age and health, the care of children, the division of duties during the marriage, the duration of the marriage, the standard of living during the marriage and, finally, any new marriage or long-term relationship (principle 2:4). As a general rule, maintenance is limited in time (principle 2:8). Exceptional hardship to the debtor spouse may lead to the denial, limitation or termination of maintenance obligations (principle 2:6).
In the case of a multiplicity of maintenance claims, priority has to be given to claims regarding minor children and the debtor spouse’s obligation to maintain a new spouse also has to be taken into account (principle 2:7).
Maintenance obligations are terminated if the creditor spouse remarries or establishes a long-term relationship (principle 2:9).
The principles have already had a certain influence: the 2008 divorce law reform in Portugal, for example, was inspired by the principles to a large degree.
4. Principles of European Family Law regarding parental responsibilities
Principle 3:1 defines parental responsibility as a collection of rights and duties aimed at promoting and safeguarding the welfare of the child. They encompass, in particular, care, protection and education, maintenance of personal relationships, determination of residence, administration of property and legal representation.
Principle 3:2 defines the holder of parental responsibility as any person having the rights and duties listed in principle 3:1, either in whole or in part. The broad definition depicts, of course, the parents as the most prominent holders of parental responsibility, but it also takes into account other persons who have parental responsibility in addition to or instead of the parents.
Principle 3:4 acknowledges the autonomy of the child and his need to act independently in accordance with his developing ability. This general principle means that children have to be involved in decisions relating to them in accordance with their needs and abilities. Instead of emphasizing the child’s age, the interrelation between his ability and need to act independently are stressed. A concrete application of this principle can be found in principle 3:6 relating to the child’s right to be heard.
Parents whose legal parentage has been established have de iure parental responsibility regardless of the child’s and parents’ status (principle 3:8). Joint exercise of parental responsibility is the standard model (principle 3:11).
Principle 3:17 copes with a third person’s exercise of parental responsibilities in addition to or instead of the parents.
Further principles deal with the content, termination, discharge and restoration of parental responsibilities as well as with matters of procedure (principle 3:20–39).
These principles have influenced the work of the Council of Europe in the field of parental responsibility and also the efforts of the Norwegian legislator in respect of child law.
5. Principles of European Family Law regarding property relations between spouses
The Organising Committee has finalized draft principles addressing marital property relations which remain to be discussed with the Expert Group. The principles focus on the concepts of sharing, fairness and party autonomy. The first part of the draft deals with rights and duties of the spouses which are mandatorily applicable. The second part concentrates on marital agreements. The third and fourth parts offer two matrimonial regimes: one based on the community systems and another based on separation systems in combination with a deferred community or a statutory compensation clause. The CEFL hopes to finalize the principles in 2012.
Literature
Katharina Boele-Woelki (ed), Perspectives for the Unification and Harmonisation of Family Law in Europe (2003); Walter Pintens, ‘Grundgedanken und Perspektiven einer Europäisierung des Familien- und Erbrechts’ [2003] Zeitschrift für das gesamte Familienrecht 329, 417 ff, 499 ff; Nina Dethloff, ‘Europäische Vereinheitlichung des Familienrechts’ (2004) 204 AcP 545; Marianne Roth, ‘Impulse für ein europäisches Familienrecht’ (2004) Zeitschrift für Rechtsvergleichung 92; Katharina Boele-Woelki, ‘The Working Method of the Commission of European Family Law’ in Katharina Boele-Woelki (ed), Common Core and Better Law in European Family Law (2005) 15; Frédérique Ferrand, ‘Les Principes de droit du divorce établis par la Commission de droit européen de la famille’ [2005] Revue Lamy Droit Civil 29; Salvatore Patti, ‘I principi di diritto europeo della famiglia sul divorzio e il mantenimento tra ex coniugi’ [2005] Familia 337; Katharina Boele-Woelki and Dieter Martiny, ‘Prinzipien zum Europäischen Familienrecht betreffend Ehescheidung und nachehelicher Unterhalt’ (2006) 14 ZEuP 6; Walter Pintens, ‘Europäische Prinzipien zur elterlichen Verantwortung’ in Festschrift Rainer Frank (2008) 473; Walter Pintens, ‘I principi europei sulla responsabilità genitoria’ in Salvatore Patti and Maria Cubeddu (eds), Introduzione al diritto della famiglia in Europa (2008) 317; Katharina Boele-Woelki and Dieter Martiny, ‘Die CEFL und die Prinzipien zum europäischen Familienrecht betreffend elterliche Verantwortung: mehr Übereinstimmung als Unterschiede’ (2009) 17 ZEuP 679; Katharina Boele-Woelki and Maarit Jänterä-Jareborg, ‘Initial results of the work of the CEFL in the field of property relations between spouses’ in Katharina Boele-Woelki, Jo Miles and Jens M Scherpe (ed), The Future of Family Property in Europe (2011) 47.
