European Family Law Research Articles

Religious Education of the Child as Part of Parental Duties – Comparative Legal Analysis of National Reports Submitted to the Commission on European Family Law

Religious Education of the Child as Part of Parental Duties – Comparative Legal Analysis of National Reports Submitted to the Commission on European Family Law

Principles of European Family Law Regarding the Divorce by the Public Notary in Hungary

Thanks to the principles of the Commission on European Family Law on divorce law, extrajudicial divorce by mutual consent is becoming increasingly widespread in many European countries. The possibility of introducing this legal institution was also raised in Hungary in 2012 during the codification of the new Civil Code, but was ultimately rejected. The aim of this study is to examine the possibility of introducing divorce by the public notary as a possible alternative to divorce by mutual consent, in the light of the principles of European Union divorce law as well as the arguments and counter-arguments raised during the codification process.

Is There a "European Family Law"?

Europe consists of many very different jurisdictions and there is no institution that actually has the legislative power to create family laws for member states of the European Union, let alone Europe as a whole. Therefore, one could assume that no common "European Family Law" exists. However, this article argues that while there of course cannot be a full "European Family Code", some core elements of European Family Law have grown organically through similar social and legal developments, while other core elements have been established by institutional actions as well as court decisions. Together, these core elements represent fragments of a growing body of European Family Law.

Relazioni affettive e frontiere giuridiche. Famiglia e famiglie nello spazio europeo tra fattore religioso, diritti nazionali e strategie di convergenza

Emotional relationships and legal border. Family and families in the European area from religious factors and national law to agreement strategies
 ABSTRACT: The family is subject to socio-cultural changes and it is regulated differently from European legal systems. In addition, in Europe, by fall of geographical barriers and the increase of migration, there has been the spread of family models not compatible with the principles and values of the host countries resulting in legal, cultural and religious conflicts. The movement of people within the European area call for coordinated actions and/or the adoption of adaptation techniques processes to the recognition of family status and related rights. This process aims to avoid that one legal relations with internationality may undergone different and heterogeneous regulatory disciplines with implications on the effective enjoyment of fundamental rights and religious ones. This work analyzes the regulation of family law in the European judicial area to understand which path to follow in preventing that the movement of people may be hampered by the heterogeneous of national laws and the relevance of the religious factor in this context.
 SOMMARIO: - 1. Brevi considerazioni introduttive - 2. La disciplina sostanziale del diritto di famiglia in Europa: la competenza degli ordinamenti nazionali. - 3. Famiglia e diritti nel sistema europeo - 4. Concetto di famiglia e diritto alla vita familiare - 5. Il diritto di famiglia e l’azione dell’Unione europea nello spazio di libertà, sicurezza e giustizia - 6. Sharīʿah, famiglia e diritto europeo: un rapporto difficile e controverso - 7. I Principles of European Family Law - 8. La famiglia tra diritto comune e politiche di armonizzazione - 9. In somma.

Empowering European Families: Towards more party autonomy in European Family and Secession Law

Empowering European Families: Towards more party autonomy in European Family and Secession Law

Selected Codification Challenges in Polish Family Law

Abstract Polish family law is undergoing change. For some time now, there have been various initiatives for its possible revision. However, social needs are ahead of legislators’ actions. Today there are a number of legislative challenges facing the Polish legislator in the context of the metamorphosis of Polish family law. The author presents selected problems connected with it and answers the question concerning the desirable way of further work on the metamorphosis of the present regulation of Polish family law. The author also presents issues that cannot be ignored in the context of preparing possible draft amendments to the current legislation. He highlights the role of the Commission on European Family Law and proposes that the starting point for the further metamorphosis of Polish family law would be the establishment of such a body in Poland based on the model of the Commission for the Codification of Family and Guardianship Law, whose work should be transparent and widely available.

Agreements in European Family Law – The Findings, Theoretical Assessments and Proposals of the Commission on European Family Law (CEFL)

Abstract This paper presents the findings, theoretical assessments and proposals made by the Commission on European Family Law in its Principles on European Family law in connection to agreements in family matters. It discusses, in particular, whether proposals were made on the basis of the common core of the jurisdictions surveyed or rely on a better law approach.

The mechanism of civil law regulation of property relations of partners in de facto unions

The article investigates the mechanism of legal regulation of property relations of partners in de facto unions. The national legislation of European states is analyzed, as well as the recommendations of the Commission on European Family Law, suggestions for improving national legislation are made.It is determined that there are no uniform approaches in the legal regulation of partners in de facto unions in European countries, in particular in six countries such relations are unregulated, in fourteen countries such relations are regulated by different branches of law, and in nine jurisdictions there is a special legal mechanism (Sweden, Hungary, Slovenia, Croatia, Catalonia, Portugal, Scotland, Ireland and Finland).The provisions of the Lithuanian Civil Code on the regulation of de facto marital relations, as well as the legislation of Croatia, Sweden, Norway and other countries are analyzed. It was found that in Scotland, civil partnerships were allowed for same-sex couples back in 2005, and for people of the opposite sex only from June 30, 2021.It is substantiated that in the context of Europeanization of private law, the position on the need to amend the Family Code of Ukraine and introduce the term «de facto union» recommended by the Commission on European Family Law in the Principles of European Family Law on property rights, maintenance and succession of couples in de facto unions.It is proved that in the process of Europeanization of private law the institution of de facto union should be regulated by the norms of the Family Code of Ukraine, which, taking into account the recommendations of the Commission on European Family Law should be improved as follows: contract on selling a dwelling in which partners live, as well as household items, is made with the consent of both partners; to guarantee partners the right to file a claim to the court for consent to dispose of the property without the consent of the other partner; to guarantee the principle of freedom of contract between partners in de facto unions; establish the right to compensation for a significant contribution to the property (or business) or profession of another partner; guarantee the right of the partner to inherit equally with the spouses, etc.

Family Law Trends in Ukraine

Abstract The paper provides the results of the analysis of the current state of legal regulation of family relations in Ukraine, and summarises the main problems of the legislation that establishes general principles of regulation of family relations. Particular attention is devoted to the research into the basic principles of family law, and how they are reflected in the Constitution of Ukraine and the Family Code of Ukraine. To assess the compliance of the Family Code of Ukraine with current societal developments, a careful comparison of its provisions with the principles developed by the Commission on European Family Law (cefl) is needed. The family legislation of Ukraine requires detailed monitoring, factoring in the provisions of a questionnaire developed by the Commission. There is a need to introduce a system of national planning, development and adoption by the Verkhovna Rada of Ukraine of the concept of national legal policy.

Changes in Czech Family Law in Light of the Principles of European Family Law

Czech family law has recently been re-codified as part of the new Civil Code. The intention of its main drafters was to build on the values and traditions of Christian-Jewish culture in the Czech Republic and to enrich Czech family law with a new dimension, especially in relation to international human rights conventions and developments in the field of human rights in general. Some sections have also been significantly influenced by the Principles of European Family Law (PEFL) developed by the Commission on European Family Law (CEFL) aiming at ‘better law’ and the harmonization of family law systems in Europe. It was stressed that the Principles of European Family Law regarding Divorce and Maintenance Between Former Spouses, the Principles of European Family Law regarding Parental Responsibilities and the Principles of European Family Law regarding Property Relations Between Spouses were published during the time of recodification of the new Civil Code and took into consideration. However, the Principles of European Family Law regarding the Property, Maintenance and Succession Rights and Duties of Couples in de facto Unions were published later. It is unclear whether the concept of unmarried cohabitation will be a challenge for Czech legislators. One can agree with the view that the new private law code should, in principle, cover all private law matters, including family law, as is customary in countries with comparable legal environments. And finally, the article was focused on the pending drafts, as developments in this area are not over, as further changes are on the way.

Imovinski odnosi u obitelji

Pravno uređenje imovinskih odnosa u obitelji znatno se razlikuje u pojedinačnim europskim pravnim sustavima. Prvi će dio rada stoga biti posvećen analizi imovinskih odnosa u braku, u izvanbračnim zajednicama te u životnim partnerstvima osoba istog spola u hrvatskome obiteljskom pravu s ciljem određivanja pravnog okvira. Nadalje, pokušat će se odgovoriti na pitanje jesu li na imovinskopravna rješenja djelovala određena poredbenopravna rješenja i/ili izvori soft lawa, poput Načela europskoga obiteljskog prava u području imovinskih odnosa bračnih drugova. U drugom će se dijelu rada nastojati razmotriti kako bi sekundarno pravo EU-a moglo utjecati na domaće obiteljsko pravo nakon što se u Republici Hrvatskoj budu primjenjivale Uredba Vijeća (EU) 2016/1103 o provedbi pojačane suradnje u području nadležnosti, mjerodavnog prava te priznavanja i izvršenja odluka u stvarima bračnoimovinskih režima i Uredba Vijeća (EU) 2016/1104 o provedbi pojačane suradnje u području nadležnosti, mjerodavnog prava te priznavanja i izvršenja odluka u stvarima imovinskih posljedica registriranih partnerstava. Na kraju, autorica će ponuditi završna razmatranja glede usporedbe između postojećih nacionalnih pravnih rješenja i europskih trendova u području imovinskih odnosa u obiteljskom pravu.

Family Forms and Parenthood. Theory and Practice of Article 8 ECHR in Europe.Ed. by Andrea Büchler and Helen Keller. – Cambridge, Antwerp, Portland:Intersentia 2016. XXIII, 544 S. (European Family Law

Family Forms and Parenthood. Theory and Practice of Article 8 ECHR in Europe.Ed. by Andrea Büchler and Helen Keller. – Cambridge, Antwerp, Portland:Intersentia 2016. XXIII, 544 S. (European Family Law

Transgender Sterilisation Requirements in Europe.

The possibility of individuals procreating post-transition has long stalked debates on transgender rights. In 1972, Sweden became the first European jurisdiction to formally acknowledge preferred gender. Under the original Swedish law, applicants for gender recognition were explicitly required to prove an incapacity to reproduce-either through natural infertility or through a positive act of sterilisation. Across the Council of Europe, 20 countries continue to enforce a sterilisation requirement. When considering reforms to their current gender recognition rules as recently as 2015, the Polish executive and the Finnish legislature both rejected proposals to remove mandatory infertility provisions. This article critiques the rationales for transgender sterilisation in Europe. It places transgender reproduction, and non-traditional procreation, in the wider context of European equality and family law. Adopting a highly inter-disciplinary framework, the article explores legal, social, medical, and moral arguments in favour of sterilisation, and exposes the weak intellectual and evidential basis for the current national laws. The article ultimately proposes a new departure for Europe's attitude towards transgender parenting, and argues that sterilisation should not be a pre-condition for legal recognition.

A Utopian Dream? A Review of European Family Law European Family Law, Vols I–IV, edited by Jens M. Scherpe

Is there such a thing as ‘European family law’? The editor of this impressive set, Jens M. Scherpe, of Cambridge University, thinks there is. Not in the sense of a comprehensive code, but a law ‘comprising principles shared across jurisdictions, and there are institutions and organisations shaping this law’. This covers some areas but not others, but ‘continues to grow’.1 This review will return to this claim at its conclusion, but first it will describe the nature of the material and how it is distributed within the four volumes. Volume I is entitled ‘The Impact of Institutions and Organisations on European Family Law’. There are eight chapters in which distinguished authors cover how the following institutions are developing a ‘European’ family law: the European Union (EU); the European Court of Human Rights (ECtHR); the Council of Europe; the International Commission on Civil Status; the Hague Conventions; the Commission on European Family Law (CEFL); and private international law instruments. A closing chapter considers the impact of religion.

Odlučivanje o imovinskim odnosima bračnih drugova u ostavinskim postupcima sukladno Uredbi 2016/1103 o bračnoimovinskom režimu

Donošenjem Uredbe (EU) Vijeća 2016/1103 od 24. lipnja 2016. o provedbi pojačane suradnje u području nadležnosti, mjerodavnog prava te priznavanja i izvršenja odluka u stvarima bračnoimovinskih režima (dalje: Uredbe 2016/1103) u 18 država članica koje sudjeluju u pojačanoj suradnji primjenom zajedničkih pravila olakšat će se odlučivanje u stvarima bračnoimovinskog režima s prekograničnim elementom. Ujedno se očekuje da će njezinim provođenjem u državama članicama biti olakšana primjena ostalih europskih instrumenata iz područja europskoga obiteljskog prava u postupcima razvoda braka i ostavinskim postupcima. U radu će se prikazati pravila Uredbe 2016/1103 o nadležnosti i mjerodavnom pravu u postupcima u kojima se odlučuje o bračnoimovinskom režimu bračnih drugova. Analizirat će se primjena pravila Uredbe 2016/1103 o nadležnosti i mjerodavnom pravu u ostavinskim postupcima s prekograničnim elementom u kojima se primjenjuje Uredba 650/2012 o nasljeđivanju. Ukazat će se na potencijalna sporna mjesta i otvorena pitanja pri tumačenju pravila Uredbe 2016/1103 koja bi mogla izazvati dvojbe i nedorečenosti za sud ili javne bilježnike u razrješavanju pitanja imovinskih odnosa u postupcima u kojemu odlučuju o nasljeđivanju. Zaključno će se predložiti moguća rješenja kojima bi se mogle otkloniti poteškoće i nedostatci u praktičnoj primjeni Uredbe 2016/1103.

Reasons for Regulating Informal Relationships: A comparison of nine European jurisdictions

In Europe, informal relationships have been increasing in number. While the regulation of informal relationships is recent and relatively limited, nine European jurisdictions have taken legislative action and adopted a lex specialis for informal relationships. This article takes a comparative approach in order to answer the following questions: What were the incentives and reasons for the regulation of informal relationships in the family laws of nine European jurisdictions and are these reasons reflected in the legal definitions and effects? And if so, how? Using the most recent national reports of the Commission on European Family Law, the comparative analysis reveals five common reasons and incentives: (1) the steady increase of informal relationships, (2) the financial protection of a vulnerable party, (3) the influence of national Constitutions, (4) the recognition of same-sex couples and (5) the protection of the common child. The comparison also reveals that in spite of these shared reasons, there is great diversity in the legal definitions and effects in the nine European jurisdictions.

European Experience and National Traditions in Russian Family Law

Twenty years have passed since the new Family Code of the Russian Federation (RF), which has become the key source for family law in Russia, was signed into law. During this period, the Family Code has frequently been criticized by experts on the administrative and judicial practice of civil jurisprudence. Legislators have begun to pay attention to these experts’ assessments of the law to determine what reforms may be necessary. The purpose of this paper is to analyze the current problems with Russian Family Law by drawing upon the experience of both European Family Law courts and the Russian legal system.

Cultural Diversity, European Public Policy Exception and Family Law of Muslim Countries

The recognition of cultural diversity as a value of the European Union Law is undoubtedly present in the current process of integration, which, in turn, is related to the maintenance of peace. Without prejudice to the treatment given by national regulations (Private International Law systems) of each Member State to the issue of cultural diversity existing in the current European society, it may be mentioned the positioning that has also been taken by the EU legislature of PIL on the treatment of said diversity. Tools used by the Private International Law system both for European Union Member States and for the European Private International Law system itself to give answers to this multiculturalism located in the territory that comprises the European Union Member States are discussed below. In particular, art. 10 of the Council Regulation (EU) no. 1259/2010, of 20 December 2010, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. This exception (public policy) will be practically operational in general when it comes to the implementation of the national system of an Islamic countries, because it may be considered that there is a difference between men and women in everything related to family relationships. The aim of this paper is to analyze the possibility of the “recognition method” as a clause for the interpretation of Private International Law to permit the application of foreign Muslim Law by European authorities in family cases and to avoid limping relationships.

EUROPSKA UNIJA I OBITELJSKO PRAVO MEĐUNARODNOPRIVATNOPRAVNI, PROCESNOPRAVNI I MATERIJALNOPRAVNI ASPEKTI

By encouraging the free market and ensuring the free movement of people (not only of goods, capital and services), the European Union has in fact contributed to the more frequent starting of families with an international element, which has simultaneously brought about more disputes initiated as a consequence of the termination of such family unions through divorce. For that reason, the European Union bodies are becoming more active in regulating different aspects of the European family law. Even though the above-mentioned activities are justified and welcome in the areas of international private and procedural law, the same cannot be said of the area of substantive family law. Because of existing concerns regarding the legitimacy of legislative activities of the European Union bodies in the area of substantive family law, the viewpoints of adversaries and advocates of the European Union bodies interventions in the area of substantive family law are analysed in detail. Finally, through the interpretation of corresponding provisions of the Treaty on the Functioning of the European Union and the Treaty on European Union, the authors conclude that the area of substantive family law is not under the competence of the European Union, but the nation states, since the appropriate authority has not been delegated to the Union in this area. The above-mentioned standpoint currently represents a communis opinio in the European legal literature.

La unificación del Derecho de familia europeo: ¿quimera o realidad?

Este estudio pretende analizar la evolución de la unificación o armonización del Derecho de familia europeo a lo largo de estos años, para tratar de concluir si realmente es posible o no conseguirla, y en su caso qué pasos y avances es necesario alcanzar.Partiendo de las iniciales dificultades que la propia materia conlleva para su homogeneización, se examina cómo se está llevando a cabo, tanto en el aspecto formal o procedimental de competencia, reconocimiento y ejecución de resoluciones, como en el aspecto material o sustantivo en materia de familia. Para ello, se estudian tanto los Reglamentos comunitarios, como los principios comunes europeos en Derecho de familia, y las opiniones doctrinales más relevantes en torno a este difícil camino de la aproximación de las legislaciones.