INTRODUCTION

In the past few years, there has been considerable reform within Europe of how child maintenance claims are handled both at the regional and international level. Until 2007, the recovery of international child maintenance was regulated by dated and largely ineffective international conventions. This all changed when the Hague Conference on Private International Law adopted a Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and an additional Protocol on the Law Applicable to Maintenance Obligations. The main objective of this new Convention is to facilitate the enforcement of international child maintenance claims. This is achieved by building on the strengths of supranational measures previously adopted in other areas to establish a strong system of administrative cooperation in dealing with international child maintenance claims. At the same time as the Child Maintenance Convention was being developed in The Hague, parallel negotiations were being conducted within the EU on the Maintenance Regulation. This sought to achieve similar goals as the Convention but also to go a step further and take advantage of closer regional integration to abolish exequatur, or the requirement for formal recognition of foreign maintenance decisions, within the EU.

Somewhat unusually, however, it was action at the international level that prompted closer cooperation at the regional level. This is illustrated by the key innovation achieved in The Hague, namely free legal assistance for child maintenance claims, which was later mirrored in the EU. This demonstrates the advantages of coordination between developments at the international and regional level because without such progress being made in The Hague, it is unlikely that there would have been such extensive legal aid provisions within the EU.

From a British perspective, it was most welcome that negotiations with the EU were able to take account of developments in The Hague, which resulted in reference to the Hague Protocol on Applicable Law in the EU's Maintenance Regulation. Initially, the European Commission had envisaged a mandatory, autonomous applicable law regime,7 which would have been unpalatable for the United Kingdom, which does not apply foreign law in child maintenance cases, given the disproportionate costs involved. Therefore, it was integral to the success of the EU's Maintenance Regulation that it adopted the optional applicable law regime that had been developed in The Hague.

INTRODUCTION

Child maintenance and contact concerning the child are the most important parts of the legal relationship between the child and the non-resident parent. However, these legal aspects of parentage are, in principle, regulated separately. The issue of maintenance as a child's right has been treated as an independent legal consequence of parentage, viewed from the fact that child maintenance should always be a duty of parents, regardless of whether parents perform their parental responsibilities or not. Thus, child maintenance tends to be regulated separately from the issue of parental responsibility in both national and international instruments. On the other hand, the issue of the personal relationship between the non-resident parent and the child has been treated as a part of parental responsibilities. It is viewed in two distinct ways both as a parental right to contact and as a parental duty securing the child's right to maintain contact. If anyone has a duty, ironically it is the resident parent who has the responsibility to enable and support the non-resident parent's right to maintain contact with the child. Accordingly, international as well as national instruments regulate the issue of contact separately from child maintenance, without making any connection between the two.

Frequently, the borderline between extended contact and alternative residence is not completely clear. It is possible to decide that the child shall reside with one parent but shall have contact with the non-resident parent comprising up to 50% of its time. Alternatively the same arrangement can be viewed as one of shared or joint residence. In either case, in practice, the child lives equally with each parent but in the first case the arrangement is described as extended contact, while the second case is regarded as one of alternative residence. If a maintenance regime takes account of the amount of time a child lives with a parent, it implicitly makes a link between contact and maintenance. Whether one calls a 50/50 arrangement “residence” or “contact” obviously is a semantic game. Yet, it is a game with important consequences for maintenance, which is likely to be owed under one label but perhaps not under the other. The tension, it seems, is to preserve the theoretical separation of contact and maintenance, while acknowledging their linkage in practice (at least in some national legal systems).

INTRODUCTION

I was very grateful for the opportunity to speak at the Cambridge conference of the Commission for European Family Law in April 2010. The CEFL conferences are always a wonderful opportunity to share ideas and culture; on this occasion we discussed some peculiarly English problems, with the benefit of the insights and inspiration of a wide range of European colleagues.

My own remit was to discuss one of the current projects of the Law Commission for England and Wales. The Law Commission is an independent, non-political statutory body, set up by the Law Commissions Act 1965; our task is to keep the law under review and to recommend reform to Government. Like the CEFL, therefore, we have no power to make legislation happen. But we are accountable for our use of public funds; we proceed by the widest possible consultation and take into account research that provides us with statistically significant measures of public opinion where that is available. One of our highest priorities is to assess the impact of our proposals and to produce solutions that combine practicability with acceptability.

We pursue projects on individual areas of the law that seem to us – following consultation – to be ripe for reform, and to be suitable for the Law Commission’s work in terms of our resources and expertise. While we do not take on highly political issues (such as immigration or the death penalty), we have worked in some very high profile areas of the law. In family law, our work led to the Children Act 1989 (which remains the primary statute on child law) and the Family Law Act 1996 (domestic violence and divorce reform). Our working method generally is to research the law relevant to a particular project and to publish a consultation paper, in which we seek views on provisional proposals. We then assess the responses of consultees, and finally produce a Report with recommendations, and usually also a draft Bill which can then be adopted by Government if our recommendations are accepted. We work closely with Government departments during the passage through Parliament of any of our Bills; overall, since our foundation, around 75% of our projects have led to acceptance of our recommendations and thence to legislation.

COMMON LAW MEETS CIVIL LAW …

Once upon a time, a German heiress met a French merchant banker in London. They decided to marry. But in order that she could be sure that he was marrying for love and prompted by her father, they concluded in Germany a pre-nuptial agreement the effect of which would be to preclude any provision for the husband in the event of their divorce. That agreement was concluded with the assistance of a notary in circumstances such that it would be binding as a matter of both French and German law. They married and set up home in England. When divorce sadly came some years and two children later, the proceedings were heard in London. This meant that English law would be applied, the English family courts invariably applying the lex fori to such matrimonial disputes. What standing would the prenuptial agreement have in these circumstances, given the substantial foreign aspects of the case? What relevance, if any, would be attached to the fact that the agreement would have been binding before a German or French court?

When we met in Cambridge in April 2010, the Supreme Court had just weeks before heard the appeal in the international pre-nuptial agreement case, Radmacher v Granatino. The Court's decision was handed down during the latter stages of the preparation of this volume in October 2010. Our conference proceedings and book editing could not have been framed by a more apt case: Radmacher v Granatino is a microcosm of so many of the debates pertinent to the future of family property law in Europe: about the jurisdiction in which matrimonial disputes and associated property and maintenance proceedings should be heard; about the law which should be applied by whichever court decides the case; about the force which parties’ own agreements – whether about the disposition of their property, or about choice of forum or law – should have; most basically, about how any domestic law ought to allocate property and award maintenance on divorce. And how apt too that the case should involve citizens of civil law jurisdictions being confronted by the rather different traditions of the common law world in which they had come to live, just as we at Cambridge were delighted to welcome so many of our civil law friends, and some common law cousins, to England for three days!

INTRODUCTION

On 14 October 2009, the European Commission published the eagerly awaited proposal for a European Union Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession1 (hereinafter referred to as the “proposal” or “Succession Regulation”).

The preparation of this proposal was preceded by a comparative research into the international succession laws of the Member States conducted by German Notarial Institute located in Wurzburg (Deutsches Notarinstitut). In 2002, on the basis of national reports submitted by experts from 15 old Member States, the German Notarial Institute prepared a summary report which contained a synthesis of the private international laws of succession in the European Union, as well as recommendations as to the future unification of international succession within the European Union (hereinafter referred to as the “DNotI report”). The results of the comparative study and recommendations as to the future unification of rules on jurisdiction, applicable law and the recognition of judgments in succession matters were discussed during the conference held in Brussels on May 10–11, 2004. Additionally, it was proposed that the future EU instrument could influence the creation of a European certificate of succession and a European register of wills.

The next milestone on the road towards a unified European private international law of succession was the EU Council's summit held in Brussels on November 4–5, 2004, during which the document entitled “The Hague Programme: Strengthening freedom, security and justice in the European Union” (hereinafter: “the Hague Programme”) was adopted. The Hague Programme assumed that until 2011 the law applicable to contractual obligations, non-contractual obligations, maintenance, matrimonial property regimes, divorces and succession will be regulated at the EU level. As underlined in the Hague Programme, EU instruments should cover only matters of private international law and should not be based on harmonized concepts of the family or marriage. In the Hague Programme the EU Council invited the European Commission to submit, in 2005, “a green paper on the conflict of laws in matters of succession, including the question of jurisdiction, mutual recognition and enforcement of decisions in this area, a European certificate of inheritance and a mechanism allowing precise knowledge of the existence of last wills and testaments of residents of the European Union”. In response to this invitation, on March 1, 2005 the EU Commission presented a document called the “Green Paper: Successions and wills” (hereinafter: “Green Paper”).

Family property law governs the property rights and obligations that flow from family relationships. It defines the relationships that may produce property interests; it determines when, and how, such interests arise.

This chapter considers how family property law should treat non-marital cohabitation, a relational status that has increased dramatically over the past half century. Indeed, within a single decade, the number of unmarried-cohabitant households in the UK increased by 67%, and the number with minor children doubled. Similar developments have occurred in most developed nations, and there is no sign that the trend in favor of premarital cohabitation has yet abated.

Are the relationships of non-marital cohabitants familial? If yes, should cohabitation give rise to status-based property entitlements some or all of the time? This chapter addresses these important questions.

COHABITATION AND FAMILY PROPERTY LAW : TRADITION AND CHANGE

Traditional family property law did not view cohabitants as family members, and no rights or obligations flowed from such a relationship. Some legal regimes did recognize customary or “common-law” marriage, but the rights and obligations attached to common-law marriage were identical to those attached to formal, ceremonial marriage. This does not mean that jurisdictions which recognized common-law marriage saw cohabitation as the equivalent of marriage. Quite to the contrary, the cohabitant who wished to claim common-law marital status was required to prove not only cohabitation, but also an agreement to be married and a reputation, or “holding-out,” as a married couple. “Far from equating cohabitation and marriage”, the common-law marriage doctrine and other related customarymarriage laws “in fact depended on there being a sharp distinction between the two.” Participants in a common-law marriage were seen as a married couple, not as non-marital cohabitants. Cohabitation per se created no status-based rights or obligations; indeed, cohabitants could not contract to create such rights or obligations based on their private relationship.

Cohabitants could typically enter into business contracts, or even service contracts if the services specified were typically compensated. In some legal systems, courts of equity also provided relief to cohabitants who had relied on the promises of a non-marital partner to his or her detriment. The purchase money resulting trust sometimes protected the cohabitant who had paid money toward the purchase of property when title was taken in the name of his or her partner.

INTRODUCTION

If an outside observer were to look at the development of private international law in Europe during the last decade he or she would certainly be amazed at the amount of new Community legislation that has either already been passed or is currently being prepared. But not only would the sheer number of new rules catch his or her attention but also the speed of such development, which only started ten years ago when the Treaty of Amsterdam entered into force and the European Community gained competence to legislate in this area of the law. The landscape of the unification of private international law in Europe has completely changed. Gone are the old days when after lengthy preparation the Hague Conference produced one instrument every four years and this instrument was carefully scrutinized and discussed before it eventually came into force! Instead there is hustle and bustle everywhere!

This is even the case in the area of family and succession law where Community involvement came somewhat as a surprise. The Brussels II bis Regulation on the dissolution of marriage and parental responsibility has been applicable since March 2005 and is already a substitute for Regulation 1347/2000. It contains rules on jurisdiction, cooperation between authorities and the recognition and enforcement of decisions in the areas of divorce, separation and marriage annulment, as well as on parental responsibility. A new Maintenance Regulation was adopted in 2009. When it comes into force it will replace the rules on jurisdiction, recognition and enforcement of the Brussels I Regulation, and will also provide a new cooperation regime between the authorities of the different Member States. A Proposal for a new Regulation on Succession is currently being discussed in Brussels. Two new Proposals authorizing and implementing enhanced cooperation in the area of the law applicable to divorce and legal separation were made public at the end of March 2010. The Council decision authorizing enhanced cooperation in this area was subsequently very quickly adopted on 12th July 2010. On 20th December 2010 Council Regulation 1259/2010 was finally approved. A working party is preparing a proposal for a Regulation on matrimonial property, which should be ready during the second semester of 2010. The European Union can certainly not be blamed for not being productive.

The aim of this chapter is to achieve two complementary goals. The first is to define the most important issues related to the protection of elderly family members through a family law prism. In that regard, special attention is devoted to questions of guardianship, maintenance and family violence. The second goal is to define the role the state has, or, even more so, the role the state should have in relation to the family. It is my intention to prove that the role of the state is not only to provide help and care for elderly family members, but also to influence changes in the family, so that care within the family itself is re-established. I believe that only a strong family, which takes care of all its members, is able to resist all the temptations imposed upon it by modern society. If the process of losing its value continues, the family shall be deprived of its wholeness, which would in turn lead to destruction of basic human values, causing insufficient and inadequate protection of all its members, and elderly family members in particular.

CHANGES IN DEFINITION, THE ROLE AND THE FUNCTION OF A FAMILY

The definition of a family is a constantly changing one, both in its legal and its every-day notion. Hence, the legal definition of family is not often found in national family law sources. The unwillingness of the legislator to define the notion of family is caused by awareness of the dynamics of family relations. Namely, within these relationships, like in all other relationships in society, constant changes occur, which sooner or later deprive the legal definitions of their practical value. If we analyse international documents, a similar definition of family is found in numerous sources, based on the concept that a family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

Furthermore, like the legal definition, the every-day notion of family is also vague. Until recently, it was not hard to define a family: a traditional structure made of spouses and their children. Today, the paradigm has changed. Nevertheless, no matter which definition of family we should or should not accept, it is beyond doubt that members of family should be protected as much as possible at all times. This is the very ratio of the existence of family law itself.

INTRODUCTION

Recent years have seen a wide and increasing diffusion of care arrangements for older people. This development has arisen owing to the convergence of multiple factors related to the pan-European problem of an ageing population with increasing demands for care. Although, of course, older people are not necessarily dependent on others for continuous non-medical care, the passing of the years does mean that many will eventually, in various ways, require assistance in performing daily tasks. Not only is the population ageing, but fertility rates across Europe are dropping, leading to the elderly constituting a larger proportion of the overall population and charging the growing costs of elder care to a shrinking number of tax-payers. Moreover, the rise of the nuclear family model, consisting of only two generations, parents and children, living together, and the increasing number of people seeking and finding employment out of their birth town have been weakening the function of the family as primary support structure for older people. The raising of retirement age and the growth of women's work outside the home further contribute to the diminution of informal caregivers available. In addition, the growing level of women's education and income from paid employment increases the economic resources of the family, making it economically more attractive for families to have women working outside their household and to hire caregivers for children and older dependent persons.

Besides, the crisis of the modern Welfare State, worsened by the global economic crisis, has been causing a reduction of quality and quantity in social services. The introduction of the so-called welfare mix model, in which social services are supplied both by the municipalities themselves and by the private sector, has further stimulated the development of private care arrangements. The moving of the hospital health system towards assistance only for severe acute condition increases the demand for palliative treatments and general care of the sort frequently required by older non-dependent persons. Indeed, “care” encompasses not just diagnostic and therapeutic action, but all other aspects of preserving mental and physical well being.

INTRODUCTION

The default rule in English succession law is that ‘an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases’. Nevertheless, family provision legislation has made significant incursions into that principle in England and Wales, as well as its equivalent in other common law jurisdictions. Under such family provision statutes, certain family members and dependants may apply for discretionary financial provision out of a deceased person's estate where the deceased's will and/or the default intestacy rules have failed to make suitable provision for the applicant.

This chapter concerns family provision claims made in two European jurisdictions, namely England and Wales and the Republic of Ireland, by adult offspring who have provided care for their now-deceased parents. The ageing population in Europe is highly relevant to this question in two respects. First, it may cast doubt on the purposes of family provision law and succession law in general, since people are less likely to be in financial need by the time their parents die. Secondly, the fact that the population is ageing increases the longterm care needs present among the general population, and raises the question of whether and how the state should encourage informal care provided by family members, including offspring.

The chapter begins by discussing the purposes of succession law and considering the extent to which succession law can and should be used to reward, support or encourage informal care. After summarising succession law in England and Wales and the Republic of Ireland, the chapter then considers the relevance of care to family provision claims made by adult offspring in those jurisdictions. The chapter concludes by assessing the need for and likelihood of reform in those jurisdictions to increase the relevance of care to such claims.

THE PURPOSES OF SUCCESSION LAW

This section explores the purposes of succession law and assesses the extent to which it can and should be used to support, reward or encourage care provided by family members. Peart summarises the accepted purposes of succession law as:

PROPERTY RELATIONS BETWEEN SPOUSES : A DIFFERENCE IN APPROACH BETWEEN CIVIL AND COMMON LAW

Continental European legal systems generally regulate the proprietary consequences of marriage through a specific body of matrimonial property law, rather than leaving them to be governed by general property law rules. While most continental legal systems contain some provisions relating to property in the general law on marriage (régime primaire, allgemeine Ehewirkungen), for example rules governing the family home and household assets, which are binding independently of the matrimonial property regime (régime sécondaire), it is the matrimonial property regime which lies at their core. Spouses enjoy a large degree of autonomy and can choose their preferred matrimonial property regime in a pre-nuptial agreement, the statutory matrimonial property regime serving just as a default rule.

The common law does not have matrimonial property law as understood in the civil law systems, and therefore also does not have a default matrimonial property regime. Since the Married Women's Property Act 1882, marriage has no effect upon the proprietary rights of the parties in England and Wales. As a result, the spouses’ assets remain separate. In contrast to continental law, marital agreements, which in England and Wales could more appropriately be termed separation or divorce agreements, traditionally are not binding. This is comparable to the legal situation in Ireland.

Most continental legal systems draw a clear distinction between matrimonial property and maintenance, whereas common law systems in principle deal with both issues simultaneously.

The function of maintenance will be of lesser importance in systems where the courts have the power to reallocate property. Reallocation of family assets is a particularly important mechanism in common law systems to guarantee the standard of living and equality between the spouses. Maintenance, in the form of financial provision, is mainly granted when property redistribution cannot guarantee the required standard of living. In continental systems reallocation is extremely rare, although a few examples can be found. In some Nordic legal systems the courts have the power of reallocation. The French prestation compensatoire and the Spanish pensión compensatoria are not totally comparable with the common law system of reallocation but combine elements of maintenance and matrimonial property. However, most continental legal systems do not have special provisions regulating the distribution of marital property and where a community system applies, the community is simply divided into equal parts.

INTRODUCTORY REMARKS

Since its establishment in 2001, the Commission on European Family Law (CEFL) has drafted common European Principles which address core issues of family law. In doing so, the CEFL aims to contribute to the harmonization process of private law in Europe. In carrying out comparative research and proposing Principles of European Family Law, the CEFL is independent of any organisation or institution. To date, 26 European jurisdictions are represented by academics, judges and practising lawyers in the work of the CEFL. These experts have been working together pursuant to a self-established method which has proven to be workable. The comparison of solutions which are presented in national reports compiled in response to an extensive list of questions constitutes the fundaments on which the CEFL Principles are built. If a national legislature takes this comparative material into account and – more importantly – finally decides to use the Principles as a source of inspiration when adopting new rules in family law, the ultimate goal of the CEFL has been achieved. It goes without saying that all legislatures are free “to take it or leave it”. Given their lack of any enforceability, the Principles must convince on their own, as they are formulated (imperio rationis instead of ratione imperii). In 2008, the Portuguese legislature for example, in modernizing the law of divorce and parental authority took advantage of the work of the CEFL. As a result, some of the new Portuguese rules are identical to the CEFL Principles. This example is not alone in illustrating that the final results are considered to be in accordance with the scientific standard for reliable and comprehensive comparative research. Moreover, CEFL Principles are not black letter rules, but guidelines to be “filtered” into national – or European – legislation.

After having completed the Principles of European Family Law regarding Divorce and Maintenance between Former Spouses (2004) and the Principles of European Family Law regarding Parental Responsibilities (2007), the CEFL is currently in the process of drafting Principles regarding Property Relations between Spouses. Due to the complexity of this area of law, it is to be expected that the work will be finalized no earlier than 2013.

INTRODUCTION

In my view, the main purpose of succession law legislation is to strike a reasonable balance between the interests of (1) the surviving spouse (or cohabitant), (2) the interests of other family members and (3) the deceased's own preferences for the distribution of his property. The question of how to perform this balancing act has been answered in widely diverse ways throughout history and in different jurisdictions. The purpose of this paper is to identify different ways of balancing these, often conflicting, interests. Within the rules of inheritance law, there are several concepts of legal protection of the surviving spouse or other surviving relatives. I will focus on four main concepts of legal protection within the law of succession and show how – and to what extent – these concepts are applied in Norwegian law.

There are of course alternatives that do not imply any balancing of interests. One unbalanced solution is to provide the lineal descendants with a legitimate portion or indefeasible share of the entire estate. Another solution, unbalanced in favour of the surviving spouse, is to provide her with a legitimate portion which amounts to the entire estate. A third alternative is to provide the deceased with unlimited freedom of testation. My focus is to identify different ways of balancing the interests. Therefore, I will not pay much attention to unbalanced solutions.

When discussing inheritance rights, especially the inheritance rights of the surviving spouse, one should bear in mind that community property is the default family property regime in many civil law jurisdictions. Thus inheritance and legitimate portion is a question of how much the widow or widower is entitled to of the deceased's assets in addition to his or her share of the community property. Upon one spouse's death, community property is usually split into halves. One half constitutes the survivor's share in the community property and thus belongs to him, whereas the estate of the predeceasing spouse consists of the other half of the community property, along with such assets as the predeceasing spouse may have owned in his own right (as separate assets). To some extent the surviving spouse receives double protection.