Vol. 8.1 March 2004

Katharina Boele-Woelki (ed.), Perspectives for the Unification and Harmonisation of Family Law in Europe (Antwerpen/Oxford/New York: Intersentia, 2003; European Family Law Series, no. 4), xxvi + 573 pp., ISBN 90-5095-287-9, EUR 92.

This fascinating book compiles 29 contributions to an international conference of family law held in Utrecht in December 2002. The conference was organised under the auspices of the Commission on European Family Law (CEFL), a study group founded in December 2001 aiming at research on the feasibility of harmonisation in the field of family law. This commission had first initiated national reports from all EU Member States as well as from Central and Eastern European jurisdictions on divorce and post-divorce maintenance laws (published in 2003 as European Family Law in Action, Vol. I: Grounds for Divorce, and Vol. II: Maintenance between Former Spouses). Its invitation to the above-mentioned conference was accepted by 140 family and comparative law specialists from 27 mostly European jurisdictions. The reports (parts I-IV, by well-known experts from eight countries and the EU) on the pros and cons of harmonisation and unification are supplemented by papers presented at workshops dealing with specific issues such as cohabitation (Bonini-Baraldi; Carruthers; Kraljic; Tan; Hennerson), different aspects of parental responsibility (Tsaoussis-Hatzis; Martins; Jeppesen de Boer; Baldjieva; Stalford; Rodríguez Pinau), surrogacy (Hatzis) in substantive and private international law as well as on the law-making process (McEleavy). In a close-up, Martiny analyses the state of law on grounds of divorce and maintenance between former spouses according to the national reports gathered and Örücü summarises the positions taken on necessity, feasibility and desirability of unification during the conference, pointing out the options, the questions, the answers (very detailed) and concluding that 'Europeans need a European Family Law.'

This seems to be quite a bold conclusion considering the doubts, resentments, reservations or at least scepticism against the unification of family law expressed in several articles. Some authors approve harmonisation (Meulders-Klein; Maczynski), but strongly oppose unification of substantive family law (Meulders-Klein; Pintens; Bradley), some even of private international law (Jänträ-Jarborg). Others are more favourable to the process of unification especially in the area of private international law (Dethloff; Tenreiro/Ekström) but also to the aim of a unified substantive law (Dethloff), express their concern about the method and the necessary steps towards this end (Schwenzer, functional comparative method; Antokolskaia, better law approach; McGlynn, strengthening human rights approach) or offer their experience from harmonisation in other fields of law (contracts - Hondius) or other jurisdictions (USA - Maxwell).

It is true that there are a great variety of concepts (Martiny) in many family law fields, that there are different traditional roots (Meulders-Klein), that family law is closely intertwined with other legal concepts (Schwenzer) peculiar to the respective jurisdictions. However, the most important issue raised by the opponents of unification - namely the question: By which values should we be guided? - seems to be asked not only among representatives of various European states but also among experts on family law reform within jurisdictions. The colourful kaleidoscope of attitudes towards the solution of family law questions mirrored in this book also characterises internal reform discussions. Social realities are similar within Europe. It seems that on a broad trail we are all heading in the same direction though at different paces, with different vehicles and sometimes with deviations and detours. If the train of the EU is to speed up, this may be advantageous provided the train stays on the right track, uses only safe bridges across the gaps and takes on board all those heading for the same destination. According to Boele-Woelki - quoted by Örücü in this book - 'the train has left the station'. This is mirrored by Article III-170 of the Draft Constitution (http://european-convention.eu.int/docs/Treaty/cv00850.en03.pdf) mentioning expressly family law with cross-border implications within the realm of legislative competency of the Council of Ministers. A family law with cross-border implications does not only involve international civil procedure and conflict rules but may also concern substantive family law institutions.

In order to keep the train on track, all contributors agree that thorough comparative work has to be done. Changes of the law in the process of unification - on the private international law level or in substantive family law - may be less revolutionary than the changes many legal systems have undergone during the past decades (the introduction of no-fault divorce; the creation of registered same-sex partnership; preference for amicable procedures), but they have to be acceptable to the people concerned. Centralising authoritarianism will not prove successful, nor will intellectual rigidity and isolation save the interests of European citizens. Model regimes at the choice of the persons concerned may be one way between the controversially discussed alternative of 'common core' or 'better law approach'. This volume of highly stimulating thoughts from different angles should be consulted by all those who comment or work on the harmonisation and unification of family law.

Dagmar Coester-Waltjen,
Professor of Law, University of Munich, Germany

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