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Harmonisation of Substantive Family Law in Europe: Myths and Reality

25 Pages Posted: 5 Oct 2011  

Masha M.V. Antokolskaia Jr.

VU University Amsterdam - Faculty of Law

Date Written: October 5, 2011

Abstract

Since the Commission on European Family Law was established in 2001, harmonisation of substantive family law in Europe has been the subject of heated debate. The impossibility and undesirability of harmonising family law was long taken for granted. This scepticism was rooted in what was referred to as the ‘cultural constraints argument’, which states that differences between national family laws are embedded in unique and cherished national cultural heritages, that this cultural and historical diversity is unbridgeable and that, therefore, family laws do not converge spontaneously and cannot be harmonised deliberately. Only since the late 1990s has the attitude towards harmonisation of family law gradually become more positive. This article addresses three issues. First, the merits of the basic assumptions of the cultural constraints argument - the embedment of family law in a unique, homogeneous and unchangeable national culture - will be analysed on the basis of the development of family law in Europe since the Enlightenment. Secondly, attention will be devoted to existing European family law - an incoherent body of binding rules developed ad hoc through international conventions, EU legislation and European Court of Human Rights (ECtHR) and European Court of Justice (ECJ) case law. Last but not least, the harmonisation activities of the CEFL aimed at developing a more coherent body of European family law will be discussed using the Principles on Divorce as an example. In conclusion some speculations regarding the future outlook for harmonisation of family law in Europe will be made.

Keywords: family law, Europe, harmonisation, substantive, European Court of Human Rights, European Court of Justice, divorce

Suggested Citation

Antokolskaia, Masha M.V., Harmonisation of Substantive Family Law in Europe: Myths and Reality (October 5, 2011). Child and Family Law Quarterly, Vol. 22, No. 4, pp. 397-421, 2010. Available at SSRN: https://ssrn.com/abstract=1939190

Masha M.V. Antokolskaia Jr. (Contact Author)

VU University Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands

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