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.

THE REASON FOR SHARING ASSETS UPON A RELATIONSHIP BREAKDOWN

Whereas the marital property regimes are quite similar in the Nordic countries, the legal response to cohabitating relationships differs greatly among these countries. Sweden is the only country where assets can be divided equally upon termination. In the other countries, compensation or restitution may be granted according to different rules. This differing approach might come as a surprise, as socio-demographic characteristics are more or less the same in all five countries.

One characteristic of the Nordic countries’ labour force is the high participation of women, while at the same time there is a high fertility rate. The institution of the lifelong housewife is definitely a thing of the past. However, complete gender equality has not been achieved in the Nordic countries, since about 40 per cent of employed women are working part time, while very few men work part time. A large number of women in the Nordic countries continue to assume the main responsibility for childcare; they oft en earn less than their partners and, as a result, have little surplus income to invest. This fact – in my opinion – is the core of the rationale in favour of legislation pertaining to the termination of cohabiting relationships: many cohabitants – albeit far from all of them – live as financially interdependent entities, especially if the relationships have lasted for a period of several years and the couples have children. Together, they form a work unit, as well as a consumption and investment unit, and for these reasons the financial position of one party can hardly be unaffected by that of the other. The most typical example of this is when one cohabitant undertakes more than her (or his) share of the ‘unprofitable’ tasks in the family, such as childcare and the coverage of consumption expenses, and as a result ends up with no appreciable assets even after a longer cohabitating relationship. By taking on more than her share of the non-profitable tasks, she has enabled part of her partner's income to accrue, and if that income is used for investments she has contributed indirectly to the other's accumulation of capital.

INTRODUCTION

In 2004 Belgium codified its private international law. This Code of Private International Law (PIL Code) encompasses the three pillars of private international law: (1) rules on international jurisdiction, (2) rules on the applicable law, and (3) rules on the recognition and enforcement in Belgium of foreign judgments and authentic acts.

With support from the Flanders Research Foundation (FWO-Vlaanderen), I conducted research into the concrete application of the PIL Code in the field of family law. I examined whether or not the objectives set out by the Belgian legislator have been achieved in practice and whether or not the Belgian PIL Code is a sufficiently adequate instrument to deal with ‘real-life’ international family law matters. For this study I had access to a vast amount of empirical sources which offered a clear picture of how courts and (local) authorities apply the PIL rules.

My field-test research revealed several discrepancies between the legislative ambitions and the practice of the courts and administrations, some of which can be attributed to the context within which private international law functions. At the national level, for instance, migration policy exerts considerable pressure on international family law. The research demonstrates a true instrumentalisation of private international law by migration (law) policies, leading, amongst other things, to all kinds of limping family law relationships (limping names, limping fatherhoods, limping marriages and divorces, etc.).

This contribution first outlines the empirical research method (section 2) and briefly illustrates the added value of empirical research in legal studies (section 3). It then reflects a few of the research findings: the nexus between private international law and migration law and their different normative approaches to identical family situations (section 4.1) and the issue of party autonomy which is not used though possible in certain fields of family law and not possible though useful in other areas of family law (section 4.2).

EMPIRICAL RESEARCH IN THE FIELD OF PRIVATE INTERNATIONAL LAW

The research was divided into two consecutive phases. Firstly, I focused on the objectives and choices of the Belgian legislator in drafting the PIL Code provisions in the field of family law. In a second phase these legislative objectives were compared to the actual practice of judicial and administrative authorities.

THE PARTICIPATION IN ACQUISITIONS APPROACH

Participation in acquisitions is one of the two matrimonial property regimes found in the CEFL Principles (4:16 to 4:32). It forms the first part of Chapter III: matrimonial property regimes. The CEFL chose the label ‘participation in acquisitions’ because it expresses the two main features of the regime: establishing a participation which is, however, restricted to the acquisitions.

When comparing the existing participation regimes, the CEFL primarily looked at the existing regimes described in the national reports. In Catalonia the default regime is the separation of property, with, however, a compensation claim in the case of divorce. In Catalonia there is also an optional regime of participation in acquisitions. Also under French law participation in acquisitions is only an optional regime. Several jurisdictions have opted for a participation regime as a default matrimonial property regime. In Greece the default system is a participation in acquisitions. Of particular interest was the Swiss system of participation in acquisitions (Errungenschaftsbeteiligung). In Germany we find a comprehensive system entailing a so-called community of accrued gains (Zugewinngemeinschaft).

At a later stage the solutions of the French-German Agreement of 2010 instituting an optional regime of participation in accrued gains were also taken into account. This bilateral agreement is of interest as it combines a primary regime (regime primaire) similar to French law with a participation in accrued gains closely based on the German model. The Nordic systems of deferred community and the redistribution of property in common law jurisdictions have also been taken into account. However, because the national reports were restricted to the two national regimes most used in practice, the CEFL did not receive that many national reports dealing in detail with a participation regime.

The issue of the best default regime was one of the points of discussion in earlier meetings of the CEFL experts. Despite a certain tendency to choose the participation in acquisitions regime as the Principles’ default regime – participation in acquisitions is applicable in 11 of the analysed jurisdictions – it is presented on an equal footing together with the community system.

INTRODUCTION

The CEFL eventually decided not to establish only one single matrimonial property regime but drafted two such regimes and refrained from giving one of them the function of a default regime and the other the status of an optional regime. Therefore, both the participation in acquisitions regime and the community of acquisitions regime are presented in the Principles of European Family Law Regarding Property Relations between Spouses as equal default regimes. The second regime, called community of acquisitions, corresponds with the French terminology communauté d'2cquets and the German Errungenschaftsgemeinschaft . The CEFL held that the label ‘community of acquisitions’ is preferable to the terminology ‘community of property’ because it clearly expresses the main feature of the regime as a restricted community.

Community of acquests or acquisitions is a matrimonial regime that several jurisdictions have opted for as a default regime. This is for example the case for Belgium (communauté des acquets, Gemeenschap van aanwinsten), Bulgaria, Croatia, the Czech Republic, France (communauté réduite aux acquets), Hungary, Italy (Comunione dei beni), Lithuania, Malta (community of acquests), Poland, Portugal (regime da comunhao de adquiridos), Russia, Slovakia, Slovenia, and Spain (sociedad de ganaciales). It appears that in mostly the Romanic European jurisdictions and the Central and Eastern European legal systems the community of acquisitions constitutes the default matrimonial regime.

Why did the CEFL decide to draft a set of Principles regarding the community of acquisitions regime?

First, because the comparative research-based drafting of the Principles revealed that the elements of all national systems surveyed cannot be merged into one single matrimonial property regime. There are two main systems with more or less important nuances and subcategories: a community system, on the one hand, and a participation system, on the other, while ‘their basic starting points are diametrically opposed’. A community of property regime between the spouses automatically takes effect at the moment of concluding the marriage, which is not the case in a participation system that treats the property of each spouse as the owner's separate property and only upon the dissolution of the marriage does it allow each spouse to partake in the assets of the other through a deferred community or a statutory compensation clause.

A NEW SET OF PRINCIPLES OF EUROPEAN FAMILY LAW

In 2013, the CEFL finished its Principles Regarding Property Relations between Spouses after more than six years of intensive work. The field of law which has been explored from a comparative perspective is commonly denoted as matrimonial property law. It is a complicated area of the law, which is regulated differently in the European jurisdictions that have been taken into account in CEFL's comparative survey. Moreover, the CEFL took the necessary time to consider every single detail at great length, since we were not under pressure from any organisation. A total of 17 meetings of the Organising Committee and one expert meeting of CEFL experts who wrote a national report were dedicated to the draft ing of this new set of European Family Law Principles. The result is contained in the book which all the participants in the 5th CEFL Conference have received.

This contribution focuses on the rights and duties of the spouses. The relevant Principles are laid down in the first Chapter which can be considered as the general part of the whole set of Principles. Right from the outset it was clear that such a general part would be included and that it would naturally be placed at the beginning of the Principles. The two other Chapters and Sections are subsequently presented in this book by Nigel Lowe, Dieter Martiny, and Frédérique Ferrand.

GENERAL AND SPECIFIC STRUCTURAL ISSUES

The structure of the Principles is clear. Three chapters address all the issues – as far as the CEFL was able to consider – that should be regulated in the field of property relations between spouses. Two matrimonial property regimes have been drafted: the participation in acquisitions and the community of acquisitions.

The whole set entails 58 Principles. Each Principle consists of four elements: the text of the Principle in the English, French and German languages (Principle); an overview of the international and European instruments which regulate the issue addressed in the Principle (international instruments); extensive comparative overviews of the 26 European jurisdictions represented in the CEFL as regards the aspects addressed in each Principle (comparative overview) and motivations, justifi cations and explanations of the content of each Principle (comment).

INTRODUCTION

The subject of this dissertation is the issue of access, or lack thereof, of medicines for patients in developing countries. The argument often made in that regard is that patent protection for medicines results in higher prices and therefore negatively impacts patients’ access to such medicines. That is to say, patent protection provides the patent holder with a monopoly position for a set number of years excluding competitors from the market. Such a monopoly position is argued, particularly by the pharmaceutical industry, to be justified due to the fact that patents are vital in order to recoup their substantial research and development costs; since without patent protection pharmaceutical companies would have no incentive to invest in innovation. This issue is studied from the perspective of international human rights law and international patent law and trade law. The inclusion of intellectual property rights (IPRs), such as patents, trademarks, copyright etc, into the framework of the World Trade Organisation (WTO) through the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has brought about significant changes to the manner in which IPRs are granted, protected and enforced. It has been argued that the introduction of global minimum standards for IPRs, particularly patents, negatively affecting patients’ access to affordable medicines creates tension with international human rights law, which protects access to essential medicines. In this study this alleged tension is researched in more detail.

Although the issue of access to medicines to an extent is a global problem, its specific characteristics differs from country to country depending on a wide range of factors on the ground, such as a country's level of development, public health burden, public health-care system, manufacturing capacity, level of intellectual property (IP) protection, environmental conditions etc. The system for protection of IPRs is largely influenced by norm-setting at the international level, particularly through the adoption of the TRIPS Agreement. The inclusion of intellectual property into the multilateral trading framework has had far-reaching consequences.

INTRODUCTION

The previous chapter examined the issue of access to medicines from the perspective of human rights. We concluded that access to essential medicines is indeed protected under international human rights law, most notably under the right to health. Access was shown to have different dimensions: availability, physical accessibility, affordability, acceptability, and quality. It is particularly with regard to the element of affordability of essential medicines that this dissertation focuses on. Namely, as was shown in chapter 2, patent protection for medicines interferes with patients’ access to such medicines. This is argued on the basis that patents negatively affect access due to the fact that they in many cases result in higher medicine prices, and consequently the unaffordability of medicines in the context of developing countries facing severe resource constraints.

With respect to the problem of lack of access to medicines, countries, in essence, have two options. They can either assist individuals in buying the medicines they need, for example by granting financial aid, financing the health care system or providing certain medicines free of charge, or they can ensure the that the price of medicines is a low as possible. Ideally states should use both options in order to ensure patients have adequate access, yet the first option is resource intensive which is particularly problematic for developing and least-developed countries. The second option is therefore more feasible. One manner in which medicine prices can be regulated is by curtailing patent protection for such medicines.

This chapter will therefore take a closer look at the patenting of pharmaceutical products and processes. The focus here is on the Agreement on Trade-Related Aspects of Intellectual Property Rights within the framework of the World Trade Organisation. The reason for focusing primarily on the TRIPS Agreement is that it is one of the most recent and far-reaching international agreements within the field of intellectual property protection. It is the first international instrument to comprehensively set out substantive minimum standards for protection of intellectual property rights. The inclusion of intellectual property into the multilateral trading system has had far-reaching consequences. Except for least-developed members, all members of the WTO are required to implement the TRIPS Agreement and its minimum standards of IP protection, which has greatly influenced domestic developments in the field of patent protection for pharmaceuticals.