Vol. 8.1 March 2004

Katharina Boele-Woelki, Bente Braat and Ian Sumner (eds.), European Family Law in Action,
Volume I: Grounds for Divorce (Antwerpen/Oxford/New York: Intersentia, 2003; European Family Law Series, no. 2), xxiv + 466 pp., ISBN 90-5095-295-X (soft cover), EUR 75;
Volume II: Maintenance between Former Spouses (Antwerpen/Oxford/New York: Intersentia, 2003; European Family Law Series, no. 3), xxiv + 496 pp., ISBN 90-5095-296-8 (soft cover), EUR 75.

Fifty years ago, almost nobody dared to advocate or to promote the harmonization or even unification of family law. According to a well-accepted theory, family law was held to be so firmly rooted in local societies and so individually tainted by local habits and traditions that it seemed to be impossible to unify this part of private law. A special type of Volksgeist haunted the discussion. It was only in 1970 that divorce was introduced in Italy by the Legge Fortuna, and in Ireland the Irish Constitution of 1937 had to be changed in order to empower Parliament to enact the Family Law (Divorce) Act 1996. Malta seems to be the only European country and one of the few countries worldwide which do not provide for divorce. But also in other European countries the pace of family law reform became faster and faster. Three fundamental principles in particular shaped the development during the last decades:

  • equality of husband and wife, later equality of sexes;
  • equality of children, i.e. non-discrimination of illegitimate children;
  • the best interest of the child as paramount principle of parent-child relations.

Under these principles, governing as fundamental rights and basic policies of legislative bodies, family law of European countries became so similar that unification or harmonization of this field of law became possible. This development and the call for a European Civil Code encouraged several scholars in September 2001 to establish the Commission on European Family Law, with its secretariat at the Molengraaff Institute for Private Law of the University Utrecht, the Netherlands, and the Organising Committee consisting of Katharina Boele-Woelki (chair, Utrecht), Frédérique Ferrand (Lyon), Cristina González Beilfuss (Barcelona), Maarit Jänterä-Jareborg (Uppsala), Nigel Lowe (Cardiff), Dieter Martiny (Frankfurt/Oder) and Walter Pintens (Leuven).

The Commission on European Family Law publishes the new European Family Law Series. Volumes 2 and 3 of this series are devoted to the law of divorce. A questionnaire consisting of 105 questions on divorce law and on post-nuptial maintenance obligations (cf. pp. xiii-xxiii of each volume) has been answered by national reporters in 22 country reports from 17 Member States of the European Union (Cyprus, Estonia, Latvia, Lithuania, Luxemburg, Malta, Slovakia and Slovenia are lacking) and from four non-Member States (Bulgaria, Norway, Russia and Switzerland). The United Kingdom is represented by two reports on the law of England and Wales and the law of Scotland. The country reports are not published as coherent papers. The volumes are arranged according to the questionnaire and the national answers are reproduced (alphabetically by countries) after each question.

It is extremely instructive to read the 22 answers to every question. There are no summaries of the answers given and no proposals for European provisions based on the experience in 22 European jurisdictions. This work still has to be done and the Commission on European Family Law will assume this task and submit proposals in the future. For the time being, these two volumes of first-rate information on most questions of divorce and post-nuptial maintenance obligations will serve as excellent digest for every student and legislator willing to use comparative law as a means for an illuminated evaluation of highly complicated problems.

Kurt Siehr,
Retired Professor of Law of the Faculty of Law, University of Zürich, and Research Scholar at the Max Planck Institute for Foreign Private and Private International Law at Hamburg

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