As the law of parentage is striving to meet the challenges of new reproductive technologies, dealing with cross-border surrogacies emerges as one of the most pressing topics in international family law. The current legal situation as regards surrogacy is quite diverse – throughout the world but also within Europe. Legal diversity has recently made a lot of people engage in so-called ‘procreative tourism’: coming from a country with a rather strict approach, they commission women in one of the more liberal countries to bear a child for them, and once the baby is born, they try to take it to their home country, thereby obviating the surrogacy ban that prevents them from entrusting a surrogate mother at home. European courts struggle with a coherent approach on how to treat those citizens who have gone abroad to have a baby. Meanwhile, legal research and the Hague Conference on Private International Law are thinking about a convention in order to ease the cross-border recognition of surrogacy.

INTRODUCTION

With the growing technical possibilities of assisted reproduction, the once monolithic idea of parenthood falls to pieces. Motherhood in particular splits up into genetic, gestational, and social motherhood – three roles that, once bound together, can now be taken over by two or even three different women. An increasingly popular and socially somewhat accepted model involving multiple mothers for one child is surrogacy: a surrogate mother commits herself to carry an embryo for another woman who for reasons of reluctance, age or medical conditions cannot or does not want to do so. Usually, one of the intended parents gives his sperm for the fertilisation of an egg that may stem either from the surrogate mother herself (traditional surrogacy) or from the intended mother or an egg donor (gestational surrogacy).

While surrogacy has been technically feasible for decades, it has only recently become a thriving business and thereby a notable case driver for European courts. Between 2006 and 2010, figures have increased nearly tenfold, meanwhile amounting to some small four-digit number of surrogacy cases involving intended parents from European countries every year. Most surrogacies take place in India, Ukraine, California, and Central America.

The fifth conference of the Commission on European Family Law (CEFL) on ‘Family Law and Culture in Europe: Developments, Challenges and Opportunities’ was held in Bonn in August 2013 in collaboration with the University of Bonn and the Käte Hamburger Center for Advanced Study in the Humanities ‘Law as Culture’, which aims to contribute to an understanding of the cultural dimension of law and the promotion of the research on law from the perspective of the humanities. The participation of more than 200 participants from around 33 countries made the conference a valuable experience and fostered a stimulating discussion during the three conference days.

The discussions were introduced by eminent conference speakers from all over Europe. Additionally, twelve young researchers from eight different countries were selected after a call for papers. They presented their research in four parallel working groups which addressed Cross-Border Family Relationships, Transnational Families, The (Un-)Wanted Child, and the Relationship Breakup. Their papers are also included in this volume.

The book consists of five parts. It starts with four presentations of the CEFL Principles on Property Relations between Spouses. Part 2 examines the breakup of (non-)formalized relationships with special reference to unmarried cohabitation and the current debate on its legislation. It also addresses alternative instruments of conflict resolution in family law like the Irish collaborative law approach. Part 3 analyses the interdependence between legal, social and biological parenthood. It also deals with the problems of cross-border surrogacy as well as mechanisms for the anonymous relinquishment of children and baby boxes. It ends with a contribution on legal issues concerning stepfamilies. Part 4 addresses the legal aspects on international family relationships and contains a critical view on the 2011 Proposal for a Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. It also analyses the notion of ‘habitual residence’ in European family law and refers to the criteria of nationality and domicile as a connecting factor for private international law questions regarding same-sex relationships. Finally, Part 5 reveals interesting aspects of transnational families such as the EU citizenship.

INTRODUCTION AND OVERVIEW: WHY FAMILY LAW SHOULD BE LINKED TO THE CULTURAL BASICS OF SOCIETY

The aim of my article is to apply the ‘law as culture perspective’ of the Käte Hamburger Center for Advanced Study in the Humanities named ‘Law as Culture’ to questions of family law. I will start with the fundamental question of why culture should matter at all in family law affairs. I shall do this even though the burden of proof seems like it ought to be the other way around, that is one should have to explain why in matters so deeply related to tradition, religion and the nation as family structures and their regulations, culture should not matter at all (section 2). This is indeed not a completely innocent kind of inquiry because there is or has been at least an important debate about the ‘cultural restraints argument’. To answer this question is of crucial importance for the basic orientation of our centre.

All this presupposes that we are talking about the same subject, that is to say that we are treating family – not its normative regulation but the conception of what ‘family’ means – as identical across different times and different civilisations. A look at family semantics in the world could reveal a wide range of differences.

Next I want to remind you of the importance family law had for the founding fathers, sons, nephews and grandchildren of the discipline I try to stand for: sociology. Especially in Durkheim's writings, the analysis of family law is a privileged methodological tool to grasp by way of the law the structures of family life (section 3).

I then have to mention the difference of law in the books and the living law approach in order to foresee what contemporary debates in European family law may mean for this fundamental distinction. We cannot avoid taking a look at the concept of law used in this context. The more we project culture into the concept of law, by way of including symbolic and ritual elements of the force of law, the easier it becomes to retrace the cultural traits of family law as well, without necessarily calling it a constraint (section 4).

ABSTRACT

Within Europe, the common law jurisdictions of England and Wales, Scotland and the Republic of Ireland have not taken a unified approach in their legal response to the increasingly common social phenomenon of unmarried cohabitation. Whereas both Scotland and Ireland have recently legislated to provide financial provision remedies as between cohabiting partners on relationship breakdown, in England and Wales (and in Northern Ireland), there are still no family law remedies for financial provision when such relationships break down. This is despite the Law Commission for England and Wales recommending reform in 2007 (see Cohabitation: the financial consequences of relationship breakdown, Law Com No 307, CM 7182, (2007) London: TSO). Interestingly, in the recent Supreme Court decision of the Scottish case of Gow v Grant (Scotland) [2012] UKSC 29, the Supreme Court Justices expressed their frustration at this state of affairs, calling loudly for English law to be changed in line with that of Scotland. Yet so far these calls have fallen on deaf ears. Thus whilst England and Wales has now embraced legal recognition of same-sex marriage, heterosexual cohabitation continues to be regarded by government as a social problem and a threat to formal marriage, with both the Scottish approach to compensating economic disadvantage within cohabitation relationships and an extension of civil partnerships to different-sex couples having been recently rejected once again by government.

Drawing on socio-legal researchevidence and discussion (including the continued existence of the ‘common law marriage myth’), this paper will explore these legal and policy developments in all three jurisdictions against the background of the changing socio-demographic nature of family structures within these societies. It will consider whether the piecemeal legal response to cohabitation in England and Wales provides adequate remedies, given policy objectives, or alternatively whether the Irish and/or Scottish solutions could be appropriately adopted within England and Wales (and Northern Ireland) or indeed, whether a different approach is called for.

INTRODUCTION

At the beginning of the 19th century, Napoleon reportedly said, ‘Cohabitants ignore the law, so the law ignores them’. Love and marriage, according to the received wisdom embedded in popular culture in the mid 20th century, were still felt to go together ‘like a horse and carriage’.

Everybody has heard of the very difficult vote in France on the law on same-sex marriage. After weeks of demonstrations, the law was finally adopted on 17 May 2013. The title of the law, ‘opening marriage to same-sex couples’, does not really describe its full contents. As a matter of fact, the law makes marriage and adoption available to same-sex couples. A new provision in the Civil Code (Article 6-1) provides: ‘Le mariage et la fi liation adoptive emportent les memes eff ets, droits et obligations reconnus par les lois, a l'2xclusion de ceux prévus au titre VII du livre 1er du présent code, que les époux ou les parents soient de sexe diff érents ou de meme sexe.’

This means that same-sex marriages and different-sex marriages do not have identical effects when it comes to parentage. Only adoption and not, at the moment, biological filiation is possible in same-sex marriages. Placing such a provision at the beginning of the Code together with other general principles was vigorously criticised as this was not considered to be its rightful place.

It has also been said that it is not ‘a marriage for everybody’ since there are two categories of marriages: on the one hand, the different-sex marriage with eff ects on fi liation and the presumption of paternity, and on the other, the samesex marriage witheff ects on adoption only. However, this has nevertheless been a great victory for homosexual couples in that they have been given the rights to marry and to adopt.

Before presenting the contents of the new law as regards adoption (section 2), it might be interesting to briefl y summarise the previous situation under French law (section 1), and then to look at what the next step will be (section 3).

THE PAST

The position of the Court of Cassation was very well exposed by the ECtHR in the case of Gas and Dubois v France (15 March 2012).

COUR DE CASSATION 24 FEBRUARY 2006

The Cour de cassation accepted a delegation of parental responsibility provided by Article 377 of the Civil Code on 24 February 2006 in a case where a same-sex couple were involved.

PROJECT DESCRIPTION

By voting for Law no. 70.03 in 2004, the Moroccan Chamber of Representatives and the Chamber of Councillors adopted a new Family Code (MFC). The MFC was the subject of much commentary at the time, which helped familiarise people, especially abroad, with this new legislative instrument and especially the many changes it brought to the regulation of family relationships in Moroccan domestic law. Some have considered that the Moroccan legislators had revolutionised family law, while others described the exercise as minimalist.

The research project presented briefly here does not seek to take a position within this debate, which in the end is essentially a debate on the evolution of Moroccan domestic law, but to study certain very specific effects of this legislative process which is nothing short of remarkable. The aim of the project is to produce, on the occasion of the tenth anniversary of the entry into force of the new Moroccan Family Code (2004–2014), a collective publication that addresses various questions around the concrete application, in Morocco and in several European countries, of provisions that have a particular impact on the family situation of Moroccan nationals living abroad (MNAs).

A RESEARCH PROGRAMME WITH FIVE COMPONENTS

The research project consists of five components. The first involves performing an analysis, as detailed as possible, of the case law available since 2004 for the five European countries with the largest population of Moroccan residents: France, Italy, the Netherlands, Spain and Belgium. The aim is to undertake an in-depth analysis of the case law that can help provide a more concrete idea of the problems raised by the application of the MFC since 2004 and especially of the legal problems affecting the family lives of MNAs. The study devotes special attention to the way in which in practice the provisions of the MFC relating to marriage, divorce and filiation are applied – or rejected. In the event that they are rejected, the analysis focuses on the reasons adduced for the rejection.

INTRODUCTION

Unmarried cohabitation (hereinafter, ‘cohabitation’) has increased considerably in Sweden during the last decades as in many other European countries. The question of if and how this increasing number of cohabiting couples should be dealt with from a legal point of view has been discussed in several European countries, resulting in a variety of legal solutions. Sweden was the first country in Europe where cohabitation was regulated in a specific statute. Cohabitation was first regulated in statutory law in 1973. The law gave an opportunity for a cohabitee with the greatest need to stay in the joint home after separation – against payment – even if the other cohabitee was the owner of the dwelling. The law was mainly protective legislation for women and children in their care, and was only applied to apartments for rent and condominiums, which at that time had no major economic value. The first rules on the division of property were introduced in 1987; the law was called the Cohabitees Joint Homes Act. The current law – the Cohabitees Act – was introduced in 2003. The legal consequences, however, are the same as in the Act from 1987. What happened in 2003 was that the law was retitled, some unclear rules were clarified, and the law became directly applicable to homosexual cohabitees.

Even though the Cohabitees Act is no more than 25 years old, society has changed quite a lot during this time in terms of our family-forming habits. The question is to what extent the Cohabitees Act functions for cohabitees in today's Swedish society? This is the overarching question I am trying to answer in an ongoing PhD project at Uppsala University. To answer this question I have carried out an empirical study that was made in 2010 in cooperation with Statistics Sweden. In the study unmarried men and women answered questions relating to the Cohabitees Act. The respondents who at the time of the survey lived in cohabitation also had to answer questions relating to their own relationship.

INTRODUCTION

The impulse to face this issue was prompted by the consideration that the number of separations and divorces as well as the number of second marriages or cohabitations have steadily increased in most of the European countries. As a consequence, nowadays a growing number of children live within a stepfamily. Nevertheless, only a few European systems have elaborated specific legal tools which are apt to regulate the complexity of the ‘interconnected relationships’ existing in these new family structures, while in others, like in Italy, step-parents are still considered as legal strangers to their stepchildren. This situation partially depends on the fact that in several EU countries family law is still based on the traditional nuclear family's paradigm, consisting of a heterosexual couple (one mother/one father) and their own children only. But it is also the result of that recent legal trend that encourages joint parental responsibilities between both legal parents, regardless of their legal status (married or unmarried at the time of the birth, separated, divorced or no longer living together, if unmarried at the time of the birth). For instance, in Italy, as a consequence of the introduction of continued joint parental responsibilities in case of a family breakdown, it becomes very difficult for the spouse of a parent to obtain a ‘step-parent adoption’, which up to now has been the only legal tool which enables, under certain conditions, the relationship between step-parents and their stepchildren to be legalised. The above-mentioned circumstances make it clear that a comparative reflection on this matter can be useful, also from the perspective of the harmonisation of the legal solutions in the European framework.

Following this path, in this article we will summarise the main legal issues arising from stepfamilies and the related theoretical problems and then we will quickly provide a comparative overview of the legal solutions adopted at a state level in Europe. We will mainly focus on the Italian, Danish, German, Swiss, French and United Kingdom legal systems as examples of three different approaches to the controversial attribution of parental responsibilities to the step-parent.

INTRODUCTION

Divorce has been described as:

This paper examines a new method of alternative dispute resolution in family law which purports to provide an interdisciplinary framework within which to explore and resolve the legal, financial and emotional aspects of relationship breakdown. This process, known as collaborative practice or collaborative divorce, originated in the US in the early 1990s and is now used worldwide in the resolution of conflict in family law matters.

Menkel-Meadow notes that ‘[d]isputing … will (oft en) reflect the culture'2 values, and it may not be wise to attempt to transplant a form of disputing that is not indigenous to, or compatible with, a different culture.’ This chapter will therefore explore the extent to which the collaborative model is compatible with the Irish family law system and will examine the changes that have been made to the process to adapt it to meet the relevant cultural needs of Irish society.

While research has been carried out into the process in the US, Canada and England and Wales, this chapter will present the preliminary findings of the first known empirical research into collaborative practice in Ireland, contextualising the Irish position within the international framework. Specifically, the paper will present the results of one aspect of a larger multilayered research project into the development of collaborative practice in Ireland: the views of separating parties who have used the process in the resolution of their family law disputes.

THE IRISH DIVORCE LANDSCAPE

The right to marry and found a family was enshrined in the Irish Constitution in 1937. The family is described therein as:

The State also pledged ‘itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.’

INTRODUCTION

Chapter II of the CEFL's Principles of European Family Law Regarding Property Relations Between Spouses deals with what is entitled ‘Marital Property Agreements’ by which is broadly meant agreements made before or during the marriage determining the spouses’ property relationship. Insofar as statistics are available, the evidence is that the number of such agreements has become more frequent.

SOME BASIC DILEMMAS

In drawing up these Principles it was sought, on the one hand, to promote spousal autonomy and, on the other, to balance the freedom to make agreements with the need to give fair protection to each spouse and to third parties. Spousal autonomy has been a guiding philosophy underlying all the CEFL's Principles, as can be seen in its Divorce Principles, whichessentially promoted divorce by consent with little or no State interference depending on whether there are children under the age of 16 and, more particularly, in its Maintenance Principles, according to Principle 2:10 of which, spouses are permitted to make maintenance agreements again subject to minimal State scrutiny. But unbridled freedom to make marital property agreements could lead to injustice and the CEFL has sought to balance that freedom against the important general purpose of matrimonial property law to grant each spouse the right to obtain a fair share in the property of the other and to give fair protection to third parties against fraudulent manoeuvres.

To achieve this balancing act, the Property Principles provide in the first instance for the basic freedom to make martial property agreements but nevertheless require such agreements to conform to certain conditions as to form and disclosure. The Principles also prescribe the obligations of notaries or other persons with comparable functions; set out the effects of such agreements against third parties and, consistently with other Principles on distribution (that is Principles 4:32 and 4:57) and Principle 2:6 of the Maintenance Principles, empower a competent authority to set aside or adjust the agreement in cases of exceptional hardship.

INTRODUCTION

Since ancient times, the establishment of legal parentage has followed the child's genetic and biological origins based on the idea that the natural parents are both willing and obliged to take care of the child. However, until recently it was impossible to scientifically prove the genetic relationship between a child and his or her presumptive parents. Therefore, legally assigning a child to parents – especially to a father – could only be executed through fictions or legal presumptions. The Roman law principle of pateris est quem nuptiae demonstrant (the father is he whom the marriage points out) is well known. The possibility that legal and genetic paternity might not coincide could obviously not be excluded.

As for the mother, for a long time the maxim mater sempercerta (the mother is always certain) was considered valid. The woman who had given birth to the child was regarded as the child's mother. She was also without doubt the child's genetic mother.

Now, times have changed. Today it is possible to establish genetic relationships beyond doubt. However, medical progress and social change in recent decades have begun to question the concept of parentage based on genetic descent. Not only has modern reproductive medicine increased the number of children who are not genetically related to one or to both of their legal parents (such as in the case of heterologous insemination or surrogacy), it is also no longer a matter of course that children are raised by their married, genetic parents. Children frequently live in step-families where the new partner of one of the parents shares custody of the child.

Due to the developments outlined above, doctrine has called for social parenthood to be given more weight. In practice, more and more people are attempting to establish parentage through contractual agreements. Such agreements accompany medically-assisted forms of reproduction in particular. However, the legality and desirability of agreements which pertain to key aspects of parentage is even being discussed outside the realm of modern reproductive medicine, not only in areas such as maintenance agreements but also in the field of the derivative acquisition of parental custody.

INTRODUCTION

Habitual residence has long been a well-established criterion in private international and international procedural law. But recently, its use in legislative acts in the field of European family law has strongly multiplied and diversified, thus creating new challenges when applying the concept of habitual residence. The following observations provide a little guidance in handling the habitual residence concept in its new leading role.

UBIQUITY OF THE HABITUAL RESIDENCE CONCEPT IN MODERN EUROPEAN FAMILY LAW ACTS

Habitual residence is the predominant or at least a very important criterion in a large number of European family law acts – the Brussels II bis Regulation, the Rome III Regulation, the Maintenance Regulation, the Hague Protocol on Maintenance 2007 and the Draft Marital Property Regulations. It is thus the guiding principle both in jurisdiction and in applicable law in divorce, maintenance and (will probably in the future be in) matrimonial property: for jurisdiction in divorce matters see Art. 3 para. 1(a) nos. 1–6 Brussels II bis Reg., for the applicable law in divorce matters see Art. 5 para. 1(a) and (b) as well as Art. 8(a) and (b) Rome III Reg. For jurisdiction in maintenance matters see Art. 3(a) and (b) as well as Art. 4 para. 1(a) and (c) no. ii Maintenance Reg., for the applicable law see Arts. 3, 4 para. 3, Arts. 5 and 8(b) Hague Protocol 2007. For jurisdiction in matrimonial property see Art. 3 Draft Marital Property Reg. in conjunction with Art. 4 Succession Reg., Art. 4 Draft Marital Property Reg. in conjunction with Art. 3(a) Brussels II bis Reg., Art. 5 para. 1(a) to (c) Draft Property Reg. and for the applicable law Art. 16(a) and (b), Art. 17 para. 1(a) as well as Art. 18(a) Draft Property Reg.

This tendency is very strong in, but is not restricted to, family law. The situation is similar in the Succession Regulation – see especially Art. 4, Art. 13 for jurisdiction and Art. 21 para. 1, Art. 24 para. 1, Art. 25 paras.