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Did Substantive National Succession Laws have an Impact on the EU Succession Regulation?
- Edited by Jens M. Scherpe, Elena Bargelli
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- Book:
- The Interaction between Family Law, Succession Law and Private International Law
- Published by:
- Intersentia
- Published online:
- 25 May 2021
- Print publication:
- 04 January 2021, pp 123-138
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Summary
INTRODUCTION
Although the European Succession Regulation (ESR) has mainly been influenced by the private international law of the EU Member States and by the Hague Convention of 1 August 1989 on the law applicable to succession to the estates of deceased persons, the substantive law of the Member States had also a minor influence on it. One example for this is the scope of the ESR and in particular the concepts of succession, wills and succession agreements (see section 2 below). Other examples can be found in the concepts of authentic instrument (see section 3 below), notary (see section 4 below) and administrator of the estate (see section 5 below). A further example is the notion of ordre public (see section 6 below). Finally, the ESR also takes into account the fact that several Member States and third States comprise territorial units having their own substantive succession law or have sets of substantive succession laws applicable to different categories of persons (see section 7 below).
THE SCOPE OF THE EUROPEAN SUCCESSION REGULATION
European succession laws are far from unified or harmonised, although there are certain tendencies of spontaneous harmonisation. However, this convergence is restricted to broad tendencies, and the approaches and outcomes remain different. A few examples will illustrate this.
In all Member States, there is a strong tendency to improve the position of the surviving spouse and to increase his or her statutory portion. In most jurisdictions, the surviving spouse has inheritance rights in full property, as in German and Swiss law, but some legal systems restrict the statutory portion of the surviving spouse in certain cases to a life interest in the form of a usufruct, as in Belgian, French and Spanish law. In addition, the size of the compulsory portion is quite different. If the deceased leaves issue, the solutions vary from one-quarter of the estate to the whole estate. If the deceased leaves no issue, the spouse has to share the estate with the parents of the deceased, but siblings are increasingly excluded and some jurisdictions also exclude the parents.
In almost all civil law jurisdictions, children enjoy a compulsory portion, mostly fixed at one-half of the statutory portion, as in Austria, Belgium, Germany, Greece and Hungary.
Foreword
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- By Walter Pintens, Prof. em. Dr., Catholic University of Leuven, Belgium
- Edited by Anatol Dutta, Wolfgang Wurmnest
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- Book:
- European Private International Law and Member State Treaties with Third States
- Published by:
- Intersentia
- Published online:
- 12 November 2019
- Print publication:
- 31 July 2019, pp v-viii
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Summary
Like many other EU regulations, Article 75 of the Succession Regulation contains rules which clarify the relationship between the Regulation and existing multilateral and bilateral conventions.
The Regulation prevails on existing multilateral and bilateral conventions between the Member States. This solution is understandable because it is the only way to create a uniform international succession law between the Member States. The only exception is the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. The provisions of this Convention apply, instead of Article 27 of the Succession Regulation, with regard to the formal validity of wills and joint wills. The implications of the prevalence of the Regulation are not too significant because, besides some bilateral treaties, the Convention of 1961 is the only important convention on international succession law. The Hague Convention of 2 October 1973 concerning the International Administration of the Estates of Deceased Persons was only ratified by the Czech Republic, Portugal and Slovakia. Other conventions such as the Convention of 16 May 1972 on the Establishment of a Scheme of Registration of Wills and the UNIDROIT Convention of 26 October 1973 providing a uniform law in the form of an international will, deal with substantive succession law which is not covered by the Regulation.
As to treaties between Member States and third States, a distinction is to be made between treaties concerning recognition and enforcement of foreign decisions and treaties concerning jurisdiction and applicable law. Although the first category covers decisions in succession matters, they do not confict with the Succession Regulation, which is limited to the recognition and enforcement of decisions of the Member States. The second category conflicts with the Succession Regulation, but the Regulation does not affect the application of such treaties. They prevail on the Regulation. This solution is nothing more than the application of an important rule of international law, namely pacta sunt servanda as enshrined in Article 351 Treaty on the Functioning of the European Union. Until now, it has not been easy to get an overview of all the treaties concluded by the Member States with third States. It has been even more difficult to gain an insight into the application of those treaties in the contracting States.
France
- from THE PROHIBITIVE APPROACH
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- By Walter Pintens, Catholic University of Leuven, Belgium; Saarland University, Germany
- Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
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- Book:
- Eastern and Western Perspectives on Surrogacy
- Published by:
- Intersentia
- Published online:
- 26 June 2019
- Print publication:
- 01 May 2019, pp 17-34
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GENERAL LEGAL FRAMEWORK
Surrogacy is forbidden in France without any distinction between altruistic or commercial surrogacy, between traditional or gestational surrogacy or between domestic and international surrogacy. When in the 1980s surrogacy became more popular, the legality of agencies and associations dealing with surrogacy was disputed. In 1988 the Conseild'É tat, the highest administrative court of France, confirmed a decision to deny legal registration of those bodies.
In the same year the French Supreme Court, the Cour de cassation, ruled that those associations were null and void because their object was illegal and that they had to be dissolved. In 1991 the Cour de cassation, sitting in plenary assembly, ruled in a domestic case that surrogacy agreements, even in noncommercial cases, violated public policy and were void because the human body, and the status of a person, could not be seen as commodities. They are both inviolable and inalienable. Changes in the civil status of a person may derive from events, the operation of law, judgments or administrative decisions but not from private arrangements. Furthermore, surrogacy was seen as an instrument to circumvent the adoption procedure. This case law was integrated in the Bioethics Act of 30 July 1994 and later codified in Art. 16-7 of the Civil Code. This article states that any surrogacy agreement is null and void. Such nullity is a matter of public policy (Art. 16-9 of the Civil Code). Since surrogacy agreements are illegal and contrary to public policy, they are not binding and not enforceable.
Today, the reasons behind this public policy principle still lie in the inalienability of the human body and the civil status of a person as argued by the Cour de cassation. The prohibition is also justified by ethical concerns. It seeks to avoid the situation that the child is treated as merchandise between infertile couples and surrogates. The prohibition aims also to protect the interest of the child which is seen as psychologically at risk in such transactions. The prohibition is also meant to prevent the exploitation of surrogates, as they are mostly from a lower economic status than the commissioning parents. This approach was until recently supported by a majority of the French population. But a recent poll of December 2017 shows that society is changing.
Private International Law Aspects of Intersex
- from PART V - PRIVATE INTERNATIONAL LAW ASPECTS OF INTERSEX
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- By Anatol Dutta, Faculty of Law, Ludwig Maximilians University of Munich, Germany, Walter Pintens, Faculty of Law, Catholic University of Leuven, Belgium; Faculty of Law, Saarland University, Germany
- Edited by Jens M. Scherpe, Anatol Dutta, Tobias Helms
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- Book:
- The Legal Status of Intersex Persons
- Published by:
- Intersentia
- Published online:
- 31 January 2019
- Print publication:
- 12 September 2018, pp 415-426
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The first question we have to deal with is – at least at first sight – rather simple: which law shall decide on the legal gender of an intersex person and the consequences of that gender in cross-border cases, if that person has links to more than one jurisdiction? This question is, of course, crucial: while all jurisdictions of the world agree that natural persons can be legally male or female, there is no such agreement on the question whether intersex persons can acquire a special gender status, for example, a third category of legal gender (however this is named). Currently only a few jurisdictions offer such a specific gender status for intersex persons. In order to answer this seemingly easy question, several issues need to be distinguished and dealt with separately. First, is gender for private international law purposes a matter of fact or a matter of law (on which see Section 1 below)? If the latter, we then have to decide on the applicable law (on which see Section 2 below). However, the problem can also arise as a preliminary question (on which see Section 3 below). Finally, every jurisdiction will have to deal with the recognition of an intersex status acquired abroad (on which see Section 4 below).
WHAT IS THE NATURE OF THE QUESTION?
When addressing private international law issues of intersex, one first has to clarify whether the attribution of a legal gender to a certain person is a legal question and, if so, whether it is a question of substance or procedure.
It is, of course, rather obvious that the legal gender of a person is a question of law and not of mere facts, and therefore the issue of the applicable law arises. The gender of a natural person is different from merely factual personal criteria, for example, the colour of the person's eyes, the birth weight, or the religion of a person – all criteria, which might be registered in some jurisdictions in the civil status registers or identity documents. The fact that many jurisdictions contain provisions on the recognition of the preferred gender identity for transsexual and transgender persons makes clear that the gender of a natural person has to be a legal question.
Belgium and the Netherlands
- from Europe
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- By Walter Pintens, University of Louvain, Belgium, and Saarland University, Germany
- Edited by Jens M. Scherpe
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- Book:
- The Legal Status of Transsexual and Transgender Persons
- Published by:
- Intersentia
- Published online:
- 28 November 2017
- Print publication:
- 22 December 2015, pp 109-124
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INTRODUCTION
In Belgium and in the Netherlands the terms ‘transgender’ or ‘transsexual’ are used in different ways. In a strict sense the term is used for a person who cannot identify him or herself with one of the two sexes and who considers him or herself as belonging to both sexes or as between both sexes. In a broader sense, the term covers all persons having problems with the dichotomy male/female and includes not only intersex-affected persons but also transsexuals and cross-dressers. This paper focuses on transgender persons in a broad sense: persons identifying themselves with the gender opposite to the one assigned in their birth certificate. For the purposes of this chapter, transgender includes individuals who have already submitted to medical intervention, such as gender confirmation surgery.
Belgian and Dutch legislation do not use the term ‘transgender’ or ‘transsexual’ as such but describe transgender individuals as persons having the constant and irreversible conviction of belonging to the gender other than the one stated on their birth certificate. In practice, the terms ‘transgender’, ‘transperson’, ‘transwoman’ (for male-to-female transgender persons) and ‘transman’ (for female-to-male transgender persons) are increasingly used in the place of ‘transsexual’, especially in the Netherlands. Therefore, the term ‘transgender’ will be used instead of ‘transsexual’ in this overview.
LEGAL FRAMEWORK AND STATISTICS
STATUTE
Belgian Law
Until 2007 Belgian law did not provide a legal framework for the legal recognition of an individual's preferred gender. This did not mean, however, that gender identity recognition was excluded from Belgian law. As far back as the 1960s, a Brussels court had acquitted a medical doctor who performed gender confirmation surgery. From then on, gender therapy, including surgery, was considered as normal medical therapy. It cannot be deduced from this judgment that transgender persons have an absolute right to recognition of their preferred gender. The final decision lies with the medical doctor who has to decide what medical treatment is appropriate.3 The right to the legal recognition of preferred gender is nowadays seen as an application of the principle of personal autonomy protected by the right to respect for private life as guaranteed under Art. 8 of the European Convention on Human Rights (ECHR).
Matrimonial Property Law in Europe
- Edited by Katharina Boele-Woelki, Joanna K. Miles, Jens M. Scherpe
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- Book:
- The Future of Family Property in Europe
- Published by:
- Intersentia
- Published online:
- 08 May 2020
- Print publication:
- 22 April 2011, pp 19-46
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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.
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