INTRODUCTION

On 16 September 2007 the world media extensively reported the massacre perpetrated by the indiscriminate shooting of private security guards of the company Blackwater in a populated neighbourhood of Baghdad which resulted in the death of 17 civilians including children and more than 20 persons injured.

This was not the first time an incident such as this occurred in Iraq since the 2003 war and the occupation of the country by the Coalition forces. According to a memorandum prepared by a United States Congressional House Committee on Oversight and Government Reform2, in 163 out of the 195 escalation-offorce incidents in Iraq in the past two years involving employees of Blackwater, the guards had fired first. In 2007, 845 security guards were employed by Blackwater in Iraq. In 84 per cent of the cases the Blackwater guards were found to have acted unprovoked and had deliberately fired against Iraqi civilians. This represents an average of 1.4 shootings per week. However, according to an interview of a former Blackwater ‘private guard’ given to NBC News, his team composed of 20 guards averaged ‘four or five’ deliberate shootings a week (several times the number reported by the company).

Most of the crimes perpetrated against Iraqi civilians have been covered up and forgotten. The State Department of the United States reaction was primarily to ask Blackwater to make monetary payments rather than insist upon accountability or to investigate for possible criminal liability. The US government has been paying $ 1,222 per day for each ‘security specialist’ which amounts to almost half a million $ per year for each of them. Blackwater is not the only private military and security company which has been involved in such deliberate shootings against the Iraqi population, sometimes for entertainment. Videos on the Internet have spread showing what appear to be foreign mercenaries utilising Iraqi civilians as targets. Private security guards of other companies such as Aegis, Triple Canopy, Erinys and Unity Resource Group have also been involved. Despite these incidents and the thousands of private contractors passing through the country, only two individuals have been indicted.

INTRODUCTION: THE GENDERED NATURE OF PEACEMAKING

In looking at peace processes, at how agreements are negotiated and what implications these have for women, it is useful to understand that peace processes are inherently gendered. They are negotiated by protagonists of conflict, who are primarily men in positions of power and are often mediated or facilitated by men. High-level negotiations are identified as male domains, which means that they also employ discourses and practices that are closer to men's reality than to women’s.

Formal peace processes rarely acknowledge the experience of conflict mediation, management and resolution employed by communities who have to survive conflict on a day-to-day basis. They also ignore the attempts at conflict resolution initiated by civil society throughout periods of war and strife, many of which are led by women. Indeed, early literature on women and armed conflict was gender blind, and was as oblivious to women's participation in peace building and peace making as it was to women's complicity in violence. Women were instead positioned as victims of war in need of protection, particularly from sexual violence, while less attention was paid to women's everyday lived experience of conflict, displacement, shift ing gender roles and agential moments.

Feminist theorising has since served to provide a nuanced understanding of how conflict affects women differently from men and how it also affects women in different ways depending on their ethnic, religious, caste, and class, regional and other identities and belongings, including their political affiliations. Protracted conflict and long term displacement also provide opportunities for greater personal and group autonomy and changes in identity, status and leadership for some women despite the initial or continuing trauma of dislocation and dispossession.

However women affected by violent conflict, continue in the main to be perceived as the archetype of marginalisation, discrimination and disempowerment and their identity and autonomy is assimilated into the universal category of ‘victim’. While normative frames bound by patriarchy contribute to such constructions, a range of human rights and humanitarian discourses and practices also tend to view women exclusively as ‘victims’ and imbue their responses with a strong protectionist bias.

INTRODUCTION

In the last two decades, the concept of transitional justice has come to represent the midwife for a democratic, rule of law state. The script for the construction of such a phase is now regarded as an indispensable building block for sound constitutionalism, peace-building, and national reconciliation in post-conflict societies or societies emerging out of abusive, authoritarian, and fractured periods. In fact, policy-makers and statesmen now increasingly realize that a human rights state that internalizes human rights norms cannot be created unless the political society concretely addresses the grievances of the past. There is no future without a past, and the future is largely a result of the past. Unless we construct a future based on the lessons of the past, we are bound to repeat our own mistakes and retard the development of our society.

The term transitional justice captures two critical notions. First, it acknowledges the temporary measures that must be taken to build confidence in the construction of the post-despotic society. Secondly, by its own definition, transitional justice rejects a winner-take-all approach as a beachhead to the future. In other words, transitional justice calls for deep concessions on either side of the divide. No one party or faction can be fully satisfied. Unyielding, none concessionary demands can only foil the truce that is essential for national reconstruction. But equally important is the realisation that transitional justice rejects impunity for the most hideous offenders. To shield egregious perpetrators would only encourage a culture of unaccountability for past abuses. Hence a balance must be struck between justice for the victims and retribution against offenders.

But the vast majority of states lack the requisite political will to effect transformative transitions. That is why most political transitions are either still born or aborted affairs. For Africa, this calls for soul-searching at all levels of society – within the political class, among the intelligentsia, in civil society, and the general public. In other words, Africans must ask themselves: Is transitional justice a necessity for us if we are to create a democratic polity? If so, what vehicles should we construct to effect transitional justice, and what mandate shall we give such vehicles?

The law relating to family property in Europe is at a key stage in its development. Unified conflict of law rules were adopted in December 2010 implementing enhanced cooperation for 14 Member States in relation to divorce, further proposals for the unification of private international law relating to matrimonial property and succession are being developed, and interest is growing in harmonisation of the substantive law itself.

The fourth conference of the Commission on European Family Law (CEFL) held in Cambridge in early April 2010 brought together around 180 participants from 32 jurisdictions in Europe and beyond to address a wide range of issues relating to the future of family property in Europe. This large and diverse group generated a stimulating discussion across the three days of the conference, prompted by the contributions of our conference speakers, most of which are produced in this volume.

The volume consists of eight parts. Part 1 contains the keynote address which began the conference proceedings given by Lord Justice Thorpe, Head of International Family Justice for England & Wales. As was fitting for a European conference taking place in the UK, Sir Mathew Thorpe's address provoked important debate about the challenges inherent in common law and civil law jurisdictions co-operating in this sphere, a theme taken up again in Part 8, the closing remarks from the local conference organisers Jo Miles and Jens M. Scherpe. Part 2 of the book examines in greater depth the issue of matrimonial property law in Europe, Professor Pintens’ chapter providing an examination of the variety of regimes currently operating in Europe, while Professors Boele- Woelki and Jantera-Jareborg preview the Commission on European Family Law’s own attempts to develop Principles on which the harmonisation of domestic laws in this field might be based. Part 3 takes us on to the question of party autonomy, both within and without marriage, in the marital context examining the extent to which parties are free by agreement to contract out of the default regime or remedies. Professor Dethloff's paper surveys the treatment of marital agreements across Europe, while Professor Cooke discusses the issues from the perspective of a law reformer in England & Wales.

SUMMARY

One of the major challenges that contemporary family law faces is how to ascertain proper maintenance for the child in the case of his or her parents’ divorce or separation and how to ensure that this obligation will be carried out by the obliged parent. A variety of approaches to these problems are identifiable in Western countries. Although the shift towards maintenance based on obligatory or recommended mathematical formulas is discernible, there are still countries whose legislation contains only very vague rules in this field.

This article focuses on these questions in the light of the relevant laws in the Czech Republic, Slovakia and Poland. All the above-mentioned countries have much in common as far as contemporary family law is concerned. This is primarily the effect of previously similar family law legislation adopted in 1949 and 1950 and, secondly, the effect of the long-lasting socialist era. Thus, the legal regulation of the maintenance obligation by parents towards their children has remained almost unchanged since those times in Poland and the Czech Republic. The determination of maintenance is still based on very simple rules and wide discretion by the courts is preferred. In Slovakia, on the other hand, new and progressive legislation was adopted in 2005. Nowadays, a minimum amount of maintenance is laid down and if the non-residential parent does not fulfil his/her obligation the state guarantees maintenance for the child to some extent.

In this article, the development of legal regulation is explained and, furthermore, the practical impact of changes on the rights of parents and their children is explored. Such an exploration proves that contemporary vague and discretionary rules, which are effective in Poland and the Czech Republic, are problematical and are an inheritance from the socialist era. These kinds of rules could have possibly worked in times when the state was inclined to greatly interfere in the lives of families and children, and, furthermore, the divorce rate was then lower. However, nowadays such an approach impairs the best interests of the child and calls for change.

INTRODUCTION

One of the major challenges which contemporary family law faces is how to ascertain proper maintenance for a child in the case of his or her parents’ divorce or separation and how to ensure that this obligation will be carried out by the obliged parent.

INTRODUCTION

Europe is getting older. Due to increased life expectancy but also to a decreased birth rate, the proportion of seniors in the overall population is constantly rising. Seniors may no longer be seen as forming a homogeneous group. Distinctions have been proposed between the “young old”, the “old”, and the “oldest old” or between persons of the third and of the fourth age. The definitions of the people who fall within these groups may vary. In any case, there is little doubt that the seniors belonging in the last of these categories, meaning the “oldest old” or the “fourth age”, constitute the fastest growing segment of the population. This increase is coupled with a rise in the number of people with declining health, be it their physical, psychological and/or mental state.

Under these conditions, elder law is evolving as a new area of law. Apart from issues regarding inheritance, legal ability to enter contracts and legal representation in cases of incapability, health insurance and pension schemes, which have been discussed at length in the traditional legal literature, elder law also pertains to questions of everyday care of older people. This last issue gains more relevance, the less the family are able to assume elder care responsibilities, as is nowadays the case. Due to increased life expectancy, the children of older seniors are often seniors themselves. Moreover, because of the decreased birth rate, the responsibility of caring for older relatives rests upon the shoulders of fewer family members, while an increase in female employment has led to a further reduction of care resources within the family. Finally, given the increased mobility of persons within a country, or even internationally, children often no longer live in the vicinity of their parents.

For many decades, the common response to the inability of an older person to live independently was his admission to a care or nursing home. Thus, the provision of care and services came together with a significant compromise of his autonomy. This unsatisfactory trade-off of independence for care, on the one hand, and the realisation that the scarce supply of places in nursing homes could not cope with the expected increase in demand in the near future, on the other hand, made evident the need to seek other creative and cost-efficient solutions.

THE EUROPEAN SUCCESSION PROJECT

When I told Adrian Briggs, Professor of private international law at Oxford, that the European Union was planning to tackle cross-border successions, he was not very impressed. He was rather surprised that, after the free movement of goods, persons, services and capital, the “free movement of the dead, previously only seen in cinema and by those who believe in zombies”, had also become one of the policies of the European Union. Indeed at first sight it is surprising that the European Union has discovered succession law – an area of law which has been constantly neglected by the European legislator. Following the 1968 Brussels Convention on jurisdiction and enforcement in civil and commercial matters most European private international law instruments expressly exclude “wills and succession” from their material scope. However, since the Vienna Action Plan of 1998, the rules for international successions are officially on the European agenda. Based on a detailed comparative study by the German Notary Institute, in 2005 the Commission published a Green Paper on wills and succession identifying “a clear need for the adoption of harmonised European rules”. After further consultations and negotiations the Commission submitted, in October 2009, a formal Proposal for a Succession Regulation. It is currently unclear whether and when the Succession Regulation will be adopted by the European Parliament and the Council; the only interesting news is that the United Kingdom and Ireland, which together with Denmark enjoy a special status in the European cooperation in the area of freedom, security and justice, have so far not exercised their right to opt into the succession project.

The Succession Proposal reveals ambitious legislative plans. The rules proposed by the European Commission go far beyond the classic areas of private international law, ie choice of law (Article 16 et seq of the Proposal), jurisdiction (Article 3 et seq of the Proposal) and recognition and enforcement of foreign decisions (Article 29 et seq of the Proposal). The Succession Proposal also aims to improve the cross-border administration and devolution of estates.

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.