Boele - Woelki.1 2 PDF

EUROPEAN CHALLENGES IN CONTEMPORARY FAMILY LAW
European Family Law Series
Published by the Organising Committee of the

Commission on European Family Law
Prof. Katharina Boele-Woelki (Utrecht)

Prof. Frédérique Ferrand (Lyon)
Prof. Cristina González Beilfuss (Barcelona)
Prof. Maarit Jänterä-Jareborg (Uppsala)
Prof. Nigel Lowe (Cardiff )
Prof. Dieter Martiny (Frankfurt/Oder)
Prof. Walter Pintens (Leuven)
EUROPEAN CHALLENGES IN
CONTEMPORARY FAMILY LAW
Edited by
Katharina Boele-Woelki
Tone Sverdrup
Antwerp – Oxford – Portland

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European Challenges in Contemporary Family Law

Katharina Boele-Woelki and Tone Sverdrup (eds.)
© 2008 Intersentia
Antwerp – Oxford – Portland
http://www.intersentia.com
ISBN 978-90-5095-692-5
D/2008/7849/8
NUR 822
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PREFACE
What constitutes the European challenges in contemporary family law? The third
CEFL Conference in Oslo from 7–9 June 2007 brought together more than 100
participants from 30 countries to provide answers to this question by addressing
a wide range of issues that currently engage family lawyers in Europe. The confer-
ence was organised along the same lines as the two previous CEFL conferences
held in Utrecht in 2002 and 2004. According to the CEFL, it is of the utmost
importance that young researchers are invited to the general discussions con-
cerning the process of the harmonisation of family law in Europe. Therefore, the
CEFL has deliberately chosen two categories of presenters: recognized authorities
on different aspects of family law on the one hand, and young researchers who
have been selected after a call for papers, on the other. In this volume the reader
will find their final written contributions.
The volume consists of five parts. Part one deals with the harmonisation of
family law in Europe, especially the Nordic countries, and the United States.
The general usage of the concepts of human rights, harmonisation and unifica-
tion is among the subjects addressed in this part. Part two – children and their
parents – deals with general aspects of the human rights of children, as well as
specific questions arising from new family forms and the new technology of arti-
ficial fertilisation. This part relates to CEFL’s second working field, and the Prin-
ciples regarding parental responsibilities, which were published in no. 16 of this
series, are presented. Part three contains contributions on irregular marriages
and the influence of multiculturalism, especially Muslim traditions, in
different areas of family law. The fourth part – (property) relations between
spouses and cohabitants – deals with a broad range of key questions in con-
nection with economic settlements upon the dissolution of marriage and cohabi-
tation. Finally, the fift h part is dedicated to cross-border family relation-
ships and the different legal instruments in this area of private international law.
These issues represent European challenges in contemporary family law and they
are, in different ways, related to the remarkable change in family life that has
taken place in Europe in the last three or four decades. Hardly any other field of
law has experienced such profound and deep social and demographic changes as
family law in this short period of time: an explosion in the divorce rates and
extramarital cohabitation and the resulting increase in the number of children
born out of wedlock; women joining the paid work force en masse, influencing,
Intersentia v
Preface
among other things, parental roles and property relations among partners; and
– more recently – the growing social acceptance of same-sex relationships and
new techniques of artificial insemination are just a few important features of this
development. We are in the middle of a “silent revolution” in family life in Europe.
And while these transformations take place, we experience a vast cross-border
movement of people – both within Europe, and in the form of migration from
other continents.
Some would maintain that it is impractical to develop principles of family law in

such a period of transition. Others would argue that it is more important than
ever to provide basic guidelines for a common legal framework for family life in
Europe. As we know, different opinions exist on these and other questions of har-
monisation. The contributions in this volume will, hopefully, enrich and inspire
these discussions.
The 3rd CEFL conference was organised in co-operation with the Department of
Private Law at the University of Oslo, and was largely financed by the Nordic
Council of Ministers, the Norwegian Ministry of Justice and the Norwegian Min-
istry of Children and Equality. We would like to extend our heartfelt gratitude to
all these four institutions for their substantial contributions.
Katharina Boele-Woelki and Tone Sverdrup

Utrecht and Oslo, December 2007
vi Intersentia
LIST OF AUTHORS
Maria Álvarez Torné
Research assistant at the Department of International Law and Economics,
University of Barcelona
Anne-Florence Bock
PhD researcher and teaching assistant, University of Basel
Prof. Dr. Katharina Boele-Woelki

Professor of Private International Law, Comparative Law and Family Law at
the Molengraaff Institute for Private Law, University of Utrecht
Prof. Dr. Ted M. de Boer

Professor of Private International Law and Comparative Law, University of
Amsterdam
Prof. Dr. Dagmar Coester-Waltjen

Professor of Law, University of Munich
Dr. Mariel Dimsey

Associate at Lovells LLP, Frankfurt; former Research assistant at the
University of Basel
Maebh Harding
NUI EJ Phelan Fellow of International Law and PhD Candidate at University
College Dublin
Dr. Michael Hellner

Associate Professor of Private International Law, Uppsala University
David Hill
PhD researcher at the University of Dundee, Research assistant at Napier
University
Anna Horínová
Postgraduate student (2nd degree), Masaryk University of Brno
Intersentia vii
List of Authors
Dr. Kathrin Kroll

Academic Assistant, Institute for German, European and International
Family Law, University of Bonn
Dr. Göran Lind

Associate Professor, University of Uppsala, Manager of the Jura Law Institute
Prof. Dr. Peter Lødrup

Professor of Law, University of Oslo
Jo Miles
Fellow of Trinity College and University Lecturer in Law at the University of
Cambridge
Mosa Sayed
PhD researcher, University of Uppsala
Prof. Dr. Lucy Smith

Dr. Balázs Somfai

Senior lecturer, University of Pécs
Prof. Dr. Tone Sverdrup

Dr. Aspasia Tsaoussis

Visiting Assistant Professor, ALBA Graduate Business School, Attorney-at-
law, Athens
Dr. Machteld Vonk

Researcher/lecturer at the Molengraaff Institute for Private Law, University of
Utrecht
Prof. Robin Fretwell Wilson

Professor of Law, Washington & Lee University School of Law
Dr. Eleni Zervogianni

Research Associate at the Faculty of International and European Studies of
the University of Piraeus and at the Hellenic Institute of International and
Foreign Law
viii Intersentia
TABLE OF CONTENTS
PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
LIST OF AUTHORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
PART ONE. THE HARMONISATION OF FAMILY LAW
HUMAN RIGHTS AND THE HARMONIZATION OF FAMILY LAW IN

EUROPE
Dagmar Coester-Waltjen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. The Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1. Family Law and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2. Values Within a Given Time, a Given Society or Culture . . . . . . . . . . 5
2. Characteristics of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1. Different Degrees of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1.1. The Inalienable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1.2. Core and Periphery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.1.3. Flexibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.2. Different Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3. Possible Conflicts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3. A Right to an Intimate, Emotional Partnership for Every Human Being . . 9
3.1. Type of Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.1.1. Sex and Sexual Orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.1.2. Free Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.1.3. The Number of Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.2. Protection Attributed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2.1. “Protection” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2.2. The Right to be Left Alone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2.3. The Right to Legal Recognition and Protection . . . . . . . . . . . 11
3.2.3.1. Marriages and Partnerships . . . . . . . . . . . . . . . . . . . 11
3.2.3.2. Informal Unions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Intersentia ix
Table of Contents
THE REHARMONISATION OF NORDIC FAMILY LAW

Peter Lødrup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. Family Law – Harmonisation and Unification . . . . . . . . . . . . . . . . . . . . . . . . 18
3. How It Began . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4. The Last Forty Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5. Comparative Studies of Nordic Family Law and the Law of Succession . . 22
6. How Far is Nordic Family Law Harmonised Today? . . . . . . . . . . . . . . . . . . . 23
7. Some Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
THE HARMONISATION OF FAMILY LAW IN THE UNITED STATES

Robin Fretwell Wilson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1. Uniform Acts & Divorce Shopping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

2. State Law Reform Commissions & No-Fault Divorce . . . . . . . . . . . . . . . . . . 29
3. The Role of National Law Reform Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.1. The Role of Fault in Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.2. What is a Parent? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.2.1. The ALI Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.2.2. Critiquing the ALI Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.2.3. The Essential Role of the Constitution. . . . . . . . . . . . . . . . . . . 47
4. State Approaches to Same-Sex Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
PART TWO. CHILDREN AND THEIR PARENTS
RECENT DEVELOPMENTS IN CHILD LAW

Lucy Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
2. Interpretation of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
3. Participation Rights and Article 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
4. The European Court of Human Rights (ECHR). . . . . . . . . . . . . . . . . . . . . . . 58
5. The Best Interest of the Child. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
6. Reproductive Technologies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7. Some Final Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
x Intersentia
Table of Contents
THE CEFL PRINCIPLES REGARDING PARENTAL RESPONSIBILITIES:

PREDOMINANCE OF THE COMMON CORE
Katharina Boele-Woelki . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
1. A New Set of Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

2. Structure of the Principles on Parental Responsibilities . . . . . . . . . . . . . . . . 64
3. CEFL’s Concept of Parental Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . 65
4. CEFL’s Approach in Draft ing the Principles: Common Core and/or
Better Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
4.1. Harmonisation Through International and European
Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
4.2. Categorisation of the Applied Methods Regarding Each
Specific Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
5. Brief Comparison of the Different CEFL Sets of Principles . . . . . . . . . . . . . 82
6. Coming to a Close . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Appendix: Principles of European Family Law Regarding Parental
Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
THE RIGHT OF THE CHILD TO PARENTAGE (DESCENT)

Balázs Somfai . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
2. Legislation in Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
3. Single Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
4. Background and Impacts of the Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 97
5. Paternal Presumption in the Case of Infertile Couples . . . . . . . . . . . . . . . . . 99
6. Final Remark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
MULTI-PARENT FAMILIES IN THE 21ST CENTURY

Mariel Dimsey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
2. Current Approach to Same-Sex Parenting . . . . . . . . . . . . . . . . . . . . . . . . . . 103
3. Legal Recognition of Social Parentage of Same-Sex Partners . . . . . . . . . . 104
3.1. Reproductive Medicine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
3.2. Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
4. “Social” Recognition – Parental Responsibility . . . . . . . . . . . . . . . . . . . . . . 108
5. Multi-Parent? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
6. Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Intersentia xi
Table of Contents
THE RECOGNITION OF HOMOSEXUAL PARENTS IN THE UNITED

KINGDOM
David Hill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
2. Homosexual Parents – A Brief History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
3. Changing Recognition and Attitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
3.1. The European Convention of Human Rights . . . . . . . . . . . . . . . . . . . 120
3.2. Changing Family Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
3.3. Financial Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
4. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
TOWARDS A NEW CONCEPT OF PARENTHOOD: PROCREATIONAL

RESPONSIBILITY
Machteld Vonk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
2. The Legal Position of Children in a Family with One Biological Parent
and One Non-Biological Parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
2.1. The Child’s Options to Acquire Two Legal Parents . . . . . . . . . . . . . . 133
Children in different-sex and female same-sex families . . . . . . . . . . 133
Children in male same-sex families . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
2.2. Protection of the Child’s Position in His or Her Family . . . . . . . . . . 136
Children in Different-Sex and Female Same-Sex Families . . . . . . . . 136
Children in Male Same-Sex Families . . . . . . . . . . . . . . . . . . . . . . . . . . 138
2.3. Possible Explanation for the Differences and Similarities Between
the Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
2.4. Bills and Proposals Regarding Same-Sex Parenthood . . . . . . . . . . . 140
3. Procreational Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
3.1. The Legal Dimensions of the Child’s Family Circle. . . . . . . . . . . . . . 143
3.2. Explanation of the New Concept of Procreational Responsibility . 145
4. Application of the Concept of Procreational Responsibility . . . . . . . . . . . 146
4.1. Children Born into Relationships with One Biological Parent
and One Non-Biological Parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
4.1.1. Legal Parenthood for Intentional Parents Without
Evaluating the Donor’s Intentions . . . . . . . . . . . . . . . . . . . . . 147
4.1.2. Legal Parenthood for the Intentional Parents with
Regard to the Intentions of the Donor . . . . . . . . . . . . . . . . . . 148
4.2. Children in Surrogate Families . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
5. How to Proceed?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
xii Intersentia
Table of Contents
PART THREE. IRREGULAR MARRIAGES AND THE INFLUENCE OF

MULTICULTURALISM
“TO AFFINITY AND BEYOND”: A CRITICAL ANALYSIS OF THE LAW

ON MARRIAGE WITHIN PROHIBITED DEGREES OF RELATIONSHIP
Maebh Harding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
2. Historical Beginnings of the Prohibited Degrees of Relationship . . . . . . . 159
2.1. The Breakaway from Canon Law in Ireland and England . . . . . . . . 161
2.2. The Breakaway from the Canon Law in France . . . . . . . . . . . . . . . . . 163
3. The General Trend Towards an Erosion of the Prohibited Degrees . . . . . 165
3.1. The Legislative Erosion of the Prohibited Degrees in England . . . . 166
3.2. The Intervention of the ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
3.3. The Erosion of the Prohibited Degrees by the Courts in Ireland . . 173
4. Questioning the Rationale Behind the Prohibited Degrees of
Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
4.1. Cultural Difference Ignored by the Prohibited Degrees of
Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
4.2. The Social Concerns Addressed by the Prohibited Degrees . . . . . . . 180
4.3. Genetic Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
4.4. The Prohibited Degrees of Relationship in Other Forms of
Registered Partnership and De Facto Relationships . . . . . . . . . . . . . 184
5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
THE MUSLIM DOWER (MAHR) IN EUROPE – WITH SPECIAL

REFERENCE TO SWEDEN
Mosa Sayed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
2. Mahr in Sweden – Presentation of Typical Cases . . . . . . . . . . . . . . . . . . . . . 188
3. Mahr Agreements Among Muslims in Sweden . . . . . . . . . . . . . . . . . . . . . . 189
4. Mahr Before the Advent of Islam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
5. Mahr According to the Koran . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
6. Mahr in Contemporary Muslim Legal Orders . . . . . . . . . . . . . . . . . . . . . . . 192
7. The Functions of Mahr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
7.1. Mahr as an Instrument for the Transfer of Property. . . . . . . . . . . . . 194
7.2. Mahr as a Safeguard for Women in Marriage . . . . . . . . . . . . . . . . . . 194
7.3. Mahr as Women’s Bargaining Tool for Achieving a Divorce . . . . . . 197
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8. Mahr in Cases with Foreign Connecting Factors . . . . . . . . . . . . . . . . . . . . . 199

8.1. RH 1993:116 – General Description . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
8.2. Qualification of Mahr as a Maintenance Obligation . . . . . . . . . . . . . 201
8.3. RH 2005:66 – General Description . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
8.4. Mahr as Part of the Spouses’ Matrimonial Property . . . . . . . . . . . . . 205
9. Mahr as an Institution of Its Own – Conclusions . . . . . . . . . . . . . . . . . . . . 207
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
MULTICULTURALISM AND FAMILY LAW: THE CASE OF GREEK

MUSLIMS
Aspasia Tsaoussi and Eleni Zervogianni . . . . . . . . . . . . . . . . . . . . . . . . . 209
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
2. On the Application of Islamic Law in Greece . . . . . . . . . . . . . . . . . . . . . . . . 210
2.1. The Mufti Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
2.2. The Shari’a as Applied in Western Thrace . . . . . . . . . . . . . . . . . . . . . . 215
2.3. The Reception of Muslim Law by the Greek Courts –
Comparative Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
2.4. Evaluation of the Legal Regime of Muslims in Greece: Is
“Concurrent Jurisdiction” a Solution? . . . . . . . . . . . . . . . . . . . . . . . . . 221
3. Alternative Dispute Resolution Processes (ADR) in the Context of
a Single Jurisdiction System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
3.1. Competing Value Systems in the Family Setting . . . . . . . . . . . . . . . . 224
3.2. Women as a Disadvantaged Group During and after Marriage . . . 225
3.3. Why Mediation is the Best Approach . . . . . . . . . . . . . . . . . . . . . . . . . 227
3.4. Some Caveats: Mediation and the Limits of “Free Choice” . . . . . . . 233
4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
PART FOUR. (PROPERTY) RELATIONS BETWEEN SPOUSES AND

COHABITANTS
LEGISLATION FOR THE SURVIVING COHABITANT FROM A

COMPARATIVE PERSPECTIVE
Göran Lind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
2. Different Legal Constructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
2.1. Completely Identical Rules as for Marriage . . . . . . . . . . . . . . . . . . . . 244
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2.2. Identical Rules as for Marriage as to the Division of Property . . . . 245

2.2.1. Identical Rules for Cohabitants and for Spouses
through Joint Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
2.3. Identical Rules for Cohabitants as for Spouses Applied by
Analogy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
3. Partial Rights for Cohabitants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
3.1. Protection only upon Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
3.2. Protection only upon Separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
3.3. Limited Protection upon Separation and Death . . . . . . . . . . . . . . . . 249
4. Arguments for Cohabitation Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
4.1. Protection for the Vulnerable Party . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
4.2. Compensation for Contributions and Sacrifices . . . . . . . . . . . . . . . . 254
4.3. Ethnic, Cultural and Social Reasons . . . . . . . . . . . . . . . . . . . . . . . . . . 254
4.4. Fulfi lment of the Parties’ Good Faith Expectations . . . . . . . . . . . . . 257
4.5. The State’s Interest in Capturing ‘The Lost Sheep’ . . . . . . . . . . . . . . . 257
5. Arguments Against Cohabitation Legislation. . . . . . . . . . . . . . . . . . . . . . . . 258
5.1. Limiting the Freedom of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . 258
5.2. Cohabitation Legislation Undermines Marriage, the Family and
the Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
5.3. The Lack of the Form’s Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
5.4. Fraudulent Behaviour and Other Abuse . . . . . . . . . . . . . . . . . . . . . . . 264
5.5. Application Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
6. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
FINANCIAL RELIEF BETWEEN COHABITANTS ON SEPARATION:

OPTIONS FOR EUROPEAN JURISDICTIONS
Jo Miles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
1. Introduction: The Social and Political Context. . . . . . . . . . . . . . . . . . . . . . . 269

1.1. The Demographic Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
1.2. Political Controversy: Protecting Traditional Family Life and
Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
2. Different European Responses to Cohabitation . . . . . . . . . . . . . . . . . . . . . . 273
2.1. Registration or Default Scheme: “Opt-In” or “Opt-Out”? . . . . . . . . 274
2.1.1. Opt-In Schemes: Partnership Registration . . . . . . . . . . . . . . 274
2.1.2. Opt-Out Schemes: Protection by Default . . . . . . . . . . . . . . . 277
3. The Nature of the Financial Regime or Remedy . . . . . . . . . . . . . . . . . . . . . . 279
3.1. Assimilation with Spouses or Different Treatment? . . . . . . . . . . . . . 279
3.2. A Property Regime or Remedial Approach? . . . . . . . . . . . . . . . . . . . . 281
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3.3. What Governing Principles? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282

3.3.1. Community of Property and Other “Sharing” Schemes . . 283
3.3.2. Needs-Based and Contribution-Based Remedies . . . . . . . . 285
4. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
DIVIDING THE ASSETS UPON THE DISSOLUTION OF A MARRIAGE

A Comparison Between Legal Systems Which Apply a ‘Hard and
Fast Rule’ and Systems with a Discretionary Approach to the Division
of Assets
Anne-Florence Bock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
1. Policy Reasons Underlying Matrimonial Property Law . . . . . . . . . . . . . . . 289

2. Two Different Concepts: Switzerland and England & Wales . . . . . . . . . . . 291
2.1. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
2.2. England & Wales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
3. A Comparison with Regard to Selected Issues . . . . . . . . . . . . . . . . . . . . . . . 295
3.1. Operability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
3.2. Separate Compensation Mechanisms as Opposed to General
Financial Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
3.3. Equal Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
3.4. The Distinction Between Matrimonial Property and Non-
Matrimonial Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
3.5. Encouraging a Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
4. Concluding Remarks and Prospects for Cohabitees . . . . . . . . . . . . . . . . . . 302
PROPERTY RELATIONS BETWEEN SPOUSES IN THE LEGISLATION

OF THE CZECH REPUBLIC AND IN THAT OF SELECTED POST-
COMMUNIST COUNTRIES
Anna Horínová . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
2. History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
3. Autonomous Free Will and Property Relations Between Spouses . . . . . . 307
4. The Concept and Extent of Matrimonial Property . . . . . . . . . . . . . . . . . . . 308
5. Dissolution and Settlement of the Legal Matrimonial Regime . . . . . . . . . 309
6. Protection of a Third Person’s Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
7. The Post-Communist Era . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
7.1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
7.2. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
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7.3. Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

7.4. Czechoslovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
7.5. The Slovak Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
7.6. The Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
7.6.1. New Civil Code of the Czech Republic . . . . . . . . . . . . . . . . . 314
7.6.2. New Regulation of Inter-Spousal Property Relations . . . . . 315
8. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
PART FIVE. CROSS-BORDER FAMILY RELATIONSHIPS
THE SECOND REVISION OF THE BRUSSELS II REGULATION:

JURISDICTION AND APPLICABLE LAW
Th. M. de Boer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
1. The Myth of Certainty and Predictability . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

2. A Brief Survey of the Proposed Rules: Jurisdiction . . . . . . . . . . . . . . . . . . . 323
3. A Brief Survey of the Proposed Rules: Applicable Law . . . . . . . . . . . . . . . . 327
4. Some Remarks on the Points of Departure of Modern Choice of Law . . . 331
5. The Policies Underlying Substantive Divorce Law . . . . . . . . . . . . . . . . . . . . 333
6. The Methodological Validity of the Proposed Choice-of-Law Rules. . . . . 335
7. Alternative Solutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
THE MAINTENANCE REGULATION: A CRITICAL ASSESSMENT OF

THE COMMISSION’S PROPOSAL
Michael Hellner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
1. Yet Another Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

2. An Assessment of the Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
2.1. Substantive Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
2.2. Geographic Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347
2.3. Rules on Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
2.4. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
2.4.1. Relationship with the Future Hague Protocol . . . . . . . . . . . 351
2.4.2. The Proposed Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
2.4.3. Is There a Need for Rules on Applicable Law? . . . . . . . . . . . 358
2.5. Common Procedural Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
2.5.1. Service of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
2.5.2. Default Judgments and Review . . . . . . . . . . . . . . . . . . . . . . . . 361
2.5.3. Reaction in the Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
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2.6. Enforceability of Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362

2.6.1. Is the Abolition of Exequatur Proportional? . . . . . . . . . . . . 362
2.6.2. Provisional Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
2.6.3. Reactions in the Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
2.7. Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
2.7.1. Translation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
2.7.2. Legal Aid and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
2.7.3. Refusal or Suspension of Enforcement . . . . . . . . . . . . . . . . . 364
2.7.4. Garnishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
2.7.5. Freezing of Bank Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
2.7.6. Ranking of Maintenance Claims . . . . . . . . . . . . . . . . . . . . . . 366
2.8. Authentic Instruments and Agreements . . . . . . . . . . . . . . . . . . . . . . . 367
2.9. Administrative Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
3. Does the Proposed Regulation Solve any Problems? . . . . . . . . . . . . . . . . . . 372
3.1. Remedies for Problems? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
3.1.1. Problems in Locating the Debtor and His Assets . . . . . . . . 373
3.1.2. Lack of Provision of Advice and Legal Aid to the
Creditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
3.1.3. Lack of Cooperation Between Competent Authorities . . . . 374
3.1.4. Lack of Mutual Recognition of Judgments . . . . . . . . . . . . . . 374
3.1.5. Problems Associated with Intermediate Measures . . . . . . . 376
3.1.6. Administrative Inefficiencies. . . . . . . . . . . . . . . . . . . . . . . . . . 376
3.2. Remedies for Non-Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
3.3. Does the Proposed Regulation have Added Value? . . . . . . . . . . . . . . 377
UNIFICATION OF CONFLICT OF LAWS IN EUROPE

– Matrimonial Property Regimes –
Kathrin Kroll . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
2. Status Quo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
2.1. Connecting Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
2.1.1. The Nationality Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
2.1.2. Habitual Residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
2.1.3. The Common Law Approach . . . . . . . . . . . . . . . . . . . . . . . . . 382
2.2. The Role of Party Autonomy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
3. Revision of the National Conflict-of-Law Rules by the European
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
3.1. Change Towards Habitual Residence . . . . . . . . . . . . . . . . . . . . . . . . . . 385
3.2. Party Autonomy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
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4. Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
4.1. The Method Chosen by the Commission . . . . . . . . . . . . . . . . . . . . . . 387
4.2. The Law Applicable to Matrimonial Property . . . . . . . . . . . . . . . . . . 388
4.2.1. The Habitual Residence Approach . . . . . . . . . . . . . . . . . . . . . 388
4.2.2. Dilemma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
4.3. Freedom to Choose the Applicable Law . . . . . . . . . . . . . . . . . . . . . . . 391
5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
THE DISSOLUTION OF THE MATRIMONIAL PROPERTY REGIME

AND THE SUCCESSION RIGHTS OF THE SURVIVING SPOUSE
IN PRIVATE INTERNATIONAL LAW
Maria Álvarez Torné . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395
2. General PIL Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395
3. Determination of the Succession Rights of the Widowed Spouse from
a PIL Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397
3.1. The Particular Case of the Spanish PIL Solution: The Pros and
Cons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
3.1.1. The Formulation of Article 9.8 of the Spanish Civil Code . 398
3.1.2. Conflictive Interpretations and the Characterization
Dilemma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
3.2. The German Answer to These Coordination Difficulties . . . . . . . . . 403
3.3. Proposals made to Solve This Problem . . . . . . . . . . . . . . . . . . . . . . . . 404
4. The Situation in Cases of Non-Married Couples: A Quick Look at
Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
5. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
CONCLUDING REMARKS
EUROPEAN CHALLENGES IN CONTEMPORARY FAMILY LAW:

SOME FINAL OBSERVATIONS
Katharina Boele-Woelki . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
1. Determining the Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413

2. The Harmonisation of Family Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
3. Children and Their Parents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417
4. Irregular Marriages and the Influence of Multiculturalism . . . . . . . . . . . . 419
5. (Property) Relations Between Spouses and Cohabitants . . . . . . . . . . . . . . . 420
6. Cross-Border Family Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
7. CEFL’s Next Challenge: Its 4th Conference . . . . . . . . . . . . . . . . . . . . . . . . . . 423
Intersentia xix
THE CEFL PRINCIPLES REGARDING
PARENTAL RESPONSIBILITIES:
PREDOMINANCE OF
THE COMMON CORE
1. A NEW SET OF PRINCIPLES

At its third international conference on European family law the CEFL presented
a new set of Principles. These Principles address parental responsibilities.1 They
were published in March 2007 and – three years earlier – were preceded by CEFL’s
first set of Principles which deal with divorce and maintenance between former
spouses.2 Before focussing on the content of the Parental Responsibilities Princi-
ples, it should be mentioned that their publication, including the preceding
materials,3 are the result of teamwork in which 26 legal experts in the field of
comparative family law are currently contributing.4 This joint effort is one of the
major characteristics of the CEFL.
This contribution contains the following parts: First, a brief overview of the struc-
ture of the Principles will be provided. Then CEFL’s concept of parental responsi-
bilities will be briefly explained. Additionally and more extensively, the question
whether and to what extent the drafters have built on convergence and coped with
divergence will be dealt with. Are the Principles on Parental Responsibilities
common core-based or has a better law approach been applied? This is an essen-
tial part of any introduction concerning common Principles which are aimed at
harmonising family law in Europe. At the end a concise comparison between the
different sets of Principles is provided.
1 Boele-Woelki, K./Ferrand, F./González Beilfuss, C./Jänterä-Jareborg, M./Lowe, N./

Martiny, D./Pintens, W., Principles of European Family Law Regarding Parental Responsi-
bilities, European Family Law Series no. 16 (2007).
2 Boele-Woelki, K./Ferrand, F./González Beilfuss, C./Jänterä-Jareborg, M./Lowe, N./
Martiny, D./Pintens, W., Principles of European Family Law Regarding Divorce and Mainte-
nance Between Former Spouses, European Family Law Series no. 7 (2004).
3 Boele-Woelki, K./Braat, B./Curry-Sumner, I. (eds.), European Family Law in Action, Vol-
ume III: Parental Responsibilities, European Family Law Series no. 9 (2005).
4 Boele-Woelki, K., ‘The Working Method of the Commission on European Family Law’, in:
Boele-Woelki, K. (ed.), Common Core and Better Law in European Family Law, European
Family Law Series no. 10 (2005), p. 15–38.
Intersentia 63
2. STRUCTURE OF THE PRINCIPLES ON PARENTAL

RESPONSIBILITIES
The CEFL Principles contain a Preamble and 39 Principles split between eight
chapters.5 Each section containing a Principle consists of four parts. The text of
the Principle itself (1)6 is followed by an overview of the relevant international
and/or European provisions regarding the issue addressed in the Principle (2) in
order to recall the international commitments that have previously been achieved.
The international obligations built the framework along which the Principles have
been drafted. The comparative overviews (3) and the comments (4) do not only
refer to the twenty-two national reports by the CEFL experts, but include, in addi-
tion, the related international and/or European instruments. All four parts belong
together. Referring only to the black-letter text of the Principles might lead to
misunderstandings which should be avoided.
III VI
Parental Responsibilities of Termination of Parental
Preamble Parents and Third Persons Responsibilities
3 Principles 2 Principles
I IV VII
Defi nitions Exercise of Parental Discharge and
Responsibilities Restoration of Parental
2 Principles Responsibilities
A: Parents
B: Th ird Persons
2 Principles
II V VIII
Rights of the Child Contents of Parental Procedure
Responsibilities
A: The Child’s Person and Property
6 Principles
B: Maintenance of Personal
Relationships
5 Principles
Which issues are addressed? Essentially, a distinction is made between three dif-
ferent areas. Chapters I, II and VIII contain general rules. To these general rules
5 Boele-Woelki, K./Martiny, D., ‘The CEFL and its Principles of European Family Law
Regarding Parental Responsibilities’, ERA Forum, 2007, p. 125–143.
6 Enclosed in the Appendix at the end of this contribution.
64 Intersentia
The CEFL Principles Regarding Parental Responsibilities
belong four different parts: first, the Preamble, second, two Principles which
define, first, the concept of parental responsibilities and, second, the holders of
parental responsibilities. The choice for a broad concept of parental responsibili-
ties necessitates indicating who can be attributed with parental responsibilities
and can exercise its rights and duties. CEFL’s concept explicitly makes a distinc-
tion between parents and third persons. Primarily parents are in charge of exercis-
ing parental responsibilities. However, persons other than parents as well as public
bodies can also have parental responsibilities. The relevant international and
European human rights instruments have profoundly marked Chapter II which is
devoted to the rights of the child. With its five Principles this Chapter forms the
main general part of the CEFL Principles. The rights of the child are always to be
taken into account in all matters of parental responsibilities. They constitute the
principal point of departure along which all other issues should be addressed.
Also the procedural aspects are of a general nature. Chapters III, IV and V address
three aspects: the position of parents and third persons, the exercise of parental
responsibilities and their content. Chapters VI and VII, finally, deal with the ter-
mination of parental responsibilities and being discharged therefrom.
3. CEFL’S CONCEPT OF PARENTAL

RESPONSIBILITIES
What are parental responsibilities and who are its holders? Two definitions are
provided in the first Chapter. In accordance with international and European
instruments the CEFL opted for a broad concept of parental responsibilities con-
sisting of a collection of rights and duties that embody the concept of taking care
of the child’s person and property (Principle 3:1). Concepts like guardianship and
custody that are still used in national systems have been abandoned. CEFL’s con-
cept of parental responsibilities applies to children from the moment of their
birth until they have reached the age of majority. A difference between younger
and adolescent children has been recognized, although the indication of an age
limit has intentionally been avoided. It not only depends on the child’s age but
also upon his/her maturity whether his/her opinion should be taken into
account.
The Principles refer to the rather long-winded term “holders of parental responsi-
bilities”. Normally, the child has two parents who are the holders of parental
responsibilities. However, also a person other than a parent, who has no legal ties
with the child, can be attributed with and exercise parental responsibilities. Prin-
ciple 3:2 clarifies this distinction. Primarily, the parents are in charge of the exer-
cise of parental responsibilities. However, physical persons other than the parents
Intersentia 65
as well as public bodies can also have parental responsibilities. According to the
CEFL Principles it is thus possible that there might be even more than two holders
of parental responsibilities.
4. CEFL’S APPROACH IN DRAFTING THE

PRINCIPLES: COMMON CORE AND/OR BETTER
LAW
The establishment of the CEFL and its draft ing of common Principles have led to
a widespread and intensive debate among family law comparatists about the
working method to be applied. Similarities and differences, convergence and
divergence, common law and/or better law are the key expressions which are dis-
cussed in the process of indicating the various findings. The main questions boil
down to the following: When and why should we build on similarities, conver-
gence and, finally, the common core and how can we cope with differences and
divergence as well as when and why do we opt for the better law approach? In
drafting the Principles of Parental Responsibilities these questions were repeat-
edly posed and finally answered for each specific subject. In contrast to some
aspects of the Divorce and Maintenance Principles it was this time less difficult to
agree on the drafting of the Principles and to justify their content because many
similarities, a great deal of converging tendencies and a common core regarding
numerous issues could be detected.
4.1. HARMONISATION THROUGH INTERNATIONAL AND

EUROPEAN INSTRUMENTS
In my work-in-progress report, which I delivered in 2004 at the 2nd CEFL confer-

ence which was held shortly after we had received all the national reports from the
CEFL experts, I came to the preliminary conclusion that with regard to the great
majority of aspects compared, common solutions could be found.7 At that point,
I was inclined to predict that also with regard to the other questions the practical
results will often be very similar.8 This prediction, which is far from unexpected,
has turned out to be true and realistic. In the field of parental responsibilities the
differences among the European systems are considerably less strong than in
7 Boele-Woelki, K., ‘Parental Responsibilities – CEFL’s Initial Results’, in Boele-Woelki, K.,

ibid., note 4, p. 141–168.
8 Th is presumption of similarity (praesumptio similitudinis) is a generally accepted working rule
in comparative law. It also applies to parental responsibilities which, as part of family law, no
longer belong to those topics which are “heavily impressed by moral views and values.” In this
sense see Zweigert, K./ Kötz, H., Introduction to Comparative Law, 1998, p. 40.
66 Intersentia
other fields of family law. Hence, in the majority of issues CEFL’s Principles only
restate the common solutions that are generally applied. This does not come as a
real surprise. It is generally acknowledged that the harmonisation of the law
regarding parental responsibilities within Europe has gradually taken place
through the many international and European instruments. In drafting the Prin-
ciples on Parental Responsibilities we took into account 16 conventions by respec-
tively the United Nations,9 the Hague Conference on Private International Law,
the Council of Europe and the European Union, 1 EU Regulation, 4 Declarations
of the United Nations, 13 Recommendations and, additionally, the White Paper
of the Council of Europe. Although each of these instruments only addresses
some specific aspects of the law regarding parental responsibilities, they collec-
tively built the general framework which to a considerable extent has also deter-
mined the national systems in Europe. Parenthetically, a compilation of the texts
of all the instruments could be a publication of considerable length in itself.
Besides, in no other field of family law have so many agreements between states
been drafted, concluded, adopted and have become binding. This development
which started some 50 years ago and which culminated in 1989 with the adoption
of the Convention on the Rights of the Child can be classified as a spontaneous
harmonisation of the law regarding the parent-child relationship. It forms the
very foundation on which the CEFL Principles were drafted.
4.2. CATEGORISATION OF THE APPLIED METHODS

REGARDING EACH SPECIFIC ISSUE
In the following an attempt is made to indicate which approach the drafters of the
Principles applied. Where was it possible to detect a common core? Was this com-
mon core selected as the best solution? In respect of which aspects was it not pos-
sible to find a common core? When was a better law solution selected? Which
issues were left to national law? Below an overview10 is provided regarding the
different subjects which were selected upon the basis of the comparative mate-
rial. In conformity with the CEFL Principles regarding Divorce and Maintenance
between Former Spouses11 the following five different approaches are to be dif-
ferentiated:
9 The international legal context of parenting and childhood is dominated by the UN Conven-
tion on the Rights of the Child. This Convention provides a first stage democratic experience
for every individual member, including children – an experience shaped by mutual respect and
one that strengthens the child’s capacity for informed participation in the decision process. See
Council of Europe, Parenting in contemporary Europe: a positive approach, 2007, p.27
10 I would like to thank Kathrin Spangenberg (Hamburg) for the preparation of the tables. She
worked in October and November 2007 as an intern with the CEFL.
11 Boele-Woelki, K., ibid., note 4., p. 33–35.
Intersentia 67
1. The common core was found and selected as the best solution.12
2. The common core was found, but a better solution was selected.13
3. The common core was found, but the solution was left to national law.
4. No common core was found and the best solution was selected.
5. No common core was found and the solution was left to national law.
The overview below, which addresses the subjects of each chapter separately, con-
firms that only in respect of a small number of aspects could no common core be
identified. In the comments concerning each Principle the selected approach has
been explicitly specified and more importantly justified. The brief explanations
provided under each table14 are restricted to the main features which are apparent
in the Principles belonging to each Chapter.
Chapter I: Definitions
Principle Aspect Applied method Number

method
P 3:1 Concept of PR Common core was found and selected 1.
as the best solution
Content of PR Common core was found and selected 1.
P 3:2 Parents as holders of PR Common core was found and selected 1.
Th ird persons as holders of PR Common core was found and selected 1.
The first two Principles are clearly based on the common core. Only the terminol-
ogy, ‘parental responsibilities’, on the one hand, and ‘holders of parental responsi-
bilities’, on the other, has been slightly changed and adapted to international and
European instruments. However, both the content of parental responsibilities and
the definition of the persons who can hold them are common core-based.
Chapter II: Rights of the Child

method
P 3:3 Best interests of the child as Common core was found and selected 1.
the primary consideration as the best solution
12 The common core and the selected solution are thus identical.
13 The common core and the selected (better) solution can be compared.
14 In the tables the following abbreviations are used: PR = parental responsibilities; CA = compe-
tent authority.
68 Intersentia

method
P 3:4 Autonomy of the child Common core was found and selected 1.
Consideration given to the Common core was found and selected 1.
child’s developing abilities as the best solution
P 3:5 Non-discrimination of the Common core was found and selected 1.
child as the best solution
No difference regarding the No common core was found and the best 4.
relationship of the holders of solution was selected
PR
P 3:6 Child’s right to be heard in No common core was found and the best 4.
all matters concerning him/ solution was selected
herself
Consideration given to the Common core was found and selected 1.
child’s age and maturity as the best solution
Child’s right is obligatory Common core was found and selected 1.
P 3:7 Protection of the interest of Common core was found and selected 1.
the child in case of confl ict as the best solution
with the interests of the
holders of PR
“Children are vested with the full range of human rights. It is, however, vital that chil-
dren’s rights be recognised as a self-standing set of concerns and not simply subsumed
into wider efforts to mainstream human rights in general. This is appropriate since
certain rights have an exclusive or particular application to children, for example the
right to education and the right to maintain relations with both parents.”15
This quotation is taken from the European Commission’s recent Communication

entitled “Towards an EU Strategy on the Rights of the Child”. It perfectly echoes
CEFL’s ideas and intentions as to how the position of the child should be improved.
Chapter II on the Rights of the Child contains five rights of the child which its
drafters considered to be of essence, particularly in the field of parental responsi-
bilities. Evidently, all these rights are well-established principles, rules and notions
and by and large they are applied in various legal fields. Why was it then deemed to
be necessary to recall these rights in the CEFL Principles? The reasons are twofold:
First, it is useful to identify and bring together all children’s rights which are of
specific importance in relation to parental responsibilities. In the national family
law systems these rights are laid down in different legal sources, either in binding
conventions, in the national constitution, in the national legislation or have devel-
15 COM (2006) 367 fi nal, p. 3.
Intersentia 69
oped in the national case law. Accordingly, the CEFL compiled these rights and
addressed them at the beginning of the Principles because they should respectively
be taken into account in all the following Principles. Actually, this is a commonly
applied method of drafting a set of rules in a specific area. Secondly, the drafters
wanted to recall the international obligations and commitments which exist in the
field of child law, but which in practice are very often not applied or not taken into
account. Moreover, in drafting the CEFL Principles, the child’s perspective was the
point of departure. Therefore, it was necessary to exemplify this perspective by
indicating its content. Finally, it should be noted that in their entirety, the rights of
the child in Chapter II cannot be found in any national codification of the law on
parental responsibilities. In this respect a new approach has been chosen.
Also in Chapter II the common core is the most often applied approach. In this
area international and European instruments play a fundamental role. The rights
of children are generally acknowledged in all jurisdictions surveyed. In respect of
two aspects where no common core could be detected the CEFL Principles go
further in prohibiting discrimination against children. It is to be regretted that in
the majority of jurisdictions represented in the CEFL differences in the treatment
of children still apply, in particular depending on whether the parents of the child
are or have been married to each other. Furthermore, in many countries a per-
son’s homosexuality disqualifies him or her from becoming a holder of parental
responsibilities. Consequently, the legal position of children differs.16 Principle
3:5 opts for equality among all children. This is considered to be the best solution
which also applies in respect of the second aspect. The child’s right to be heard is
an obligatory point of departure and should not be at the discretion of the com-
petent authority or the holders of parental responsibilities.
Chapter III: Parental Responsibilities of Parents and Third Persons

method
P 3:8 Parents: only the legal relationship Common core was found and 1.
with the child is relevant, not the selected as the best solution
relationship between the parents
Establishment of parentage No common core was found and 5.

the solution was left to national law
16 Vonk, M., Children and Their Parents, A Comparative Study of the Legal Position of Children
with Regard to Their Intentional and Biological Parents in English and Dutch Law, European
Family Law Series no. 20, 2007.
70 Intersentia

method
P 3:9 Th ird persons can hold PR in whole Common core was found and 1.
or in part selected as the best solution
How and on what conditions may a No common core was found and 5.
third person be attributed with PR the solution was left to national law
Effect of agreements regarding the No common core was found and 5.

attribution of PR to third persons the solution was left to national law
P 3:10 The dissolution of a marriage/ Common core was found and 1.

separation has no effect on PR selected as the best solution
The three Principles of Chapter III on Parental Responsibilities of Parents and

Third Persons follow significant common-core solutions. In accordance with the
non-discrimination Principle 3:5 only the relationship between parents and their
children is a relevant constituent element for legal parenthood and parental
responsibilities. This is the general approach in the majority of the legal systems.
The establishment and contesting of a parent-child relationship (legal parent-
hood) has consequently been referred to national law due to the fact that these
Principles only address parental responsibilities. Also the rights and responsibili-
ties of third persons, in particular the parent’s partner, have been gradually rec-
ognised in the majority of jurisdictions. This positive development has been sup-
ported in Principle 3:9. However, issues as to how and under which circumstances
third persons may hold parental responsibilities in whole or in part are also left to
national law. Finally and as a consequence of Principle 3:8, neither the dissolution
of the parents’ relationship nor the separation of the parents whether legal or fac-
tual has any effect on parental responsibilities. This is the commonly adopted
approach in the great majority of the family systems in Europe.
Chapter IV: Exercise of Parental Responsibilities

method
P 3:11 Holders of PR jointly exercise PR Common core was found and 1.

selected as the best solution
P 3:12(1) Parent with joint PR can act alone No common core was found and the 4.
in daily matters best solution was selected
Intersentia 71

method
P 3:12(2) Important decisions should be Common core was found and 1.

taken jointly selected as the best solution
Parent can act alone in urgent Common core was found and 1.
cases selected as the best solution
Other parent has to be informed No common core was found and the 4.
immediately best solution was selected
P 3:13(1) Agreements on the exercise of PR Common core was found and 1.

are possible between holders of selected as the best solution
joint PR
P 3:13(2) The CA can scrutinize the Common core was found and 1.
agreement selected as the best solution
How the agreement is to be No common core was found and the 4.

scrutinized best solution was selected
P 3:14(1) In case of disagreement parents Common core was found and 1.

with joint PR can apply to the CA selected as the best solution
P 3:14(2) CA promotes an agreement Common core was found and 1.

between the parents selected as the best solution
P 3:14(3) In case of disagreement the CA No common core was found and the 4.
decides the dispute or authorises best solution was selected
one of the parents
P 3:15 One parent with joint PR can Common core was found and 1.
exercise them alone upon a selected as the best solution
decision of the CA
One parent with joint PR can No common core was found and the 4.
exercise them alone upon best solution was selected
agreement
P 3:16 One parent with sole PR can Common core was found and 1.
exercise them alone selected as the best solution
P 3:17 Th ird persons can exercise some/ No common core was found and the 4.
all PR best solution was selected
Procedure and grounds for the No common core was found and the 5.
exercise of PR by third persons solution was left to national law
Choice of person(s) to exercise PR No common core was found and the 5.

besides/instead of the parents solution was left to national law
P 3:18 The parent’s partner may take Common core was found and 1.
decisions in selected as the best solution
The majority of Principles which belong to Chapter IV regarding the Exercise of

Parental Responsibilities are based on the common core which can be found in
72 Intersentia
both the national systems and the international and European instruments. These
general rules to be applied were selected as the best solutions. In respect of a few,
but important, aspects it was not possible to discover a common approach.
Regarding these aspects a solution was selected which is applied in only a few
countries. They are practicable and in line with CEFL’s objectives in creating a
flexible and efficient system which is also based on equality. This applies to the
power of the parents having joint parental responsibilities to act alone in daily
matters (Principles 3:12 (1)), the obligation of the parent who acted in urgent cases
to inform the other parent without undue delay (Principles 3:12(2)), the compe-
tence of the competent authority to decide a dispute or to authorize one of the
parents having joint parental responsibilities in case of disagreement between
them (Principles 3:14(3)), the exercise of parental responsibilities by one parent if
both parents made an agreement to that end (Principle 3(15)) and the recognition
that parental responsibilities may be exercised by third persons in addition to or
instead of the parents (Principle 3:17). The aspects which are referred to national
law address some specific procedural issues.
Chapter V: Content of Parental Responsibilities

Section A: The Child’s Person and Property

method
P 3:19(1) Concept of PR: care, protection, Common core was found and 1.
education, religious upbringing, selected as the best solution
medical treatment
Medical treatment: child can decide No common core was found and 5.
alone or additional consent of the the solution was left to national
holders of PR is required law
P 3:19(2) No corporal punishment/humiliat- No common core was found and 4.

ing treatment the best solution was selected
P 3:20(1) In case of living apart holders of No common core was found and 4.
joint PR should agree on the child’s the best solution was selected
residence
P 3:20(2) An alternating residence is possible No common core was found and 4.

upon agreement or decision the best solution was selected
Procedure to gain an alternating No common core was found and 5.

residence the solution was left to national
law
Intersentia 73

method
P 3:21(1) Relocation requires consent of both Common core was found and 1.
holders of PR selected as the best solution
Information of the other holder of No common core was found and 4.

PR the best solution was selected
Manner of information No common core was found and 5.

the solution was left to national
law
P 3:21(2) In case of disagreement concerning No common core was found and 4.

the relocation the CA can be the best solution was selected
requested to decide
P 3:21(3) Factors to be considered by the CA No common core was found and 4.

the best solution was selected
P 3:22(1) The CA takes appropriate measures Common core was found and 1.
if the child’s property is in jeopardy selected as the best solution
Administration of the child’s Common core was found and 1.

property in the best interest of the selected as the best solution
child and with due care and
diligence
P 3:22(2) Gifts allowed if they are made under Common core was found and 1.
a moral obligation selected as the best solution
P 3:22(3) Income derived from the child’s Common core was found and 1.
property may be used for the needs selected as the best solution
of the family
P 3:23(1) No unrestricted administration of Common core was found and 1.

the child’s property selected as the best solution
P 3:23(2) Income of the child is excluded from Common core was found and 1.
administration by the holder of PR selected as the best solution
unless the child is not of sufficient
age and maturity
P 3:23(3) Authorisation by the CA is needed Common core was found and 1.

for transactions carried out on selected as the best solution
behalf of the child
P 3:24(1) Legal representation of the child in Common core was found and 1.
matters concerning his or her person selected as the best solution
or property
P 3:24(2) No legal representation in case of Common core was found and 1.

confl ict of interests between the selected as the best solution
child and among the holders of PR
74 Intersentia

method
P 3:24(3) Child’s right to self-representation in No common core was found and 4.

legal proceedings concerning the best solution was selected
personal matters
Additional consent of the holders of No common core was found and 5.

PR is required the solution was left to national
law
Almost all Principles of Section A on the Child’s Person and Property which
forms part of Chapter V on the Content of Parental Responsibilities follow com-
mon solutions which could be identified in the jurisdictions surveyed. There are,
however, a few exceptions. One of them, for instance, is addressed in Principle
3:19(2). It concerns the prohibition of corporal punishment and any treatment
that is unreasonable and detrimental to the welfare of the child. It is surprising
that such a prohibition does not yet reflect the common core in Europe whereas
all countries surveyed are contracting states to the Convention on the Rights of
the Child of 1989 which provides in its Article 19 para. 1 that the States Parties
shall take all appropriate measures to protect children against ill-treatment and
violence.
Another issue which falls under the exception that no common core could be
found relates to the child’s residence. The lack of a common core regarding this
aspect is due to the fact that, on the one hand, we are witnessing a greater mobility
of persons not only within Europe but all around the globe, and, on the other
hand, that joint parental responsibilities increasingly lead to equal parenting
which eventually results in an alternating residence of the child. These develop-
ments are new and are approached differently in the systems surveyed. Legisla-
tion is exceptional and judicial decisions differ to a great extent. In this area, the
CEFL Principles provide new solutions which to a certain extent are based on the
legal practice of some countries. These solutions may function as guidelines not
only for legislatures but primarily for the courts and other administrative bodies
which are requested to decide on disputes concerning the child’s residence. First,
in the case of living apart the holders of joint parental responsibilities should
agree on the child’s residence (Principle 3:20(1)); second, the alternating residence
of the child should be based either upon an agreement between the holders of
parental responsibilities or upon a decision of the competent authority (Principle
3:20(2)); third, before a parent wishes to change the child’s residence either within
or outside the jurisdiction he or she should inform the other parent (Principle
3:21(1)); fourth, in the case of disagreement concerning the change of the child’s
residence a decision by the competent authority may be requested by each holder
of parental responsibilities; and finally and most importantly, a non-exhaustive
Intersentia 75
list of factors is provided in Principle 3:21(3) which the competent authority

should take into account in deciding relocation disputes. In addition to these
innovative clarifications a few aspects have been referred to national law. They
primarily concern the way in which the other parent should be informed (Princi-
ple 3:21(1)), the issue whether an alternating residence has to be requested by at
least one of the holders of parental responsibilities or whether the competent
authority may decide of its own motion (Principle 3:20(2)) and whether, in addi-
tion to the consent of the child, the holders of parental responsibilities should
consent to certain acts (Principles 3:19(1), 3:24(3)).
Chapter V: Content of Parental Responsibilities

Section B: Maintenance of Personal Relationships

method
P 3:25(1) Child has a right of contact with Common core was found and 1.
parents selected as the best solution
P 3:25(2) Child has a right of contact with Common core was found and 1.
close relatives selected as the best solution
Right of close relatives to see the No common core was found and 5.
child against the will of the holders the solution was left to national law
of PR
P 3:25(3) Contact between the child and a No common core was found and 4.
third person due to close personal the best solution was selected
relations
Right of third persons to see the No common core was found and 5.
child against the will of the holders the solution was left to national law
of PR
P 3:26(1) Content of contact Common core was found and 1.
P 3:26(2) Contact only in the best interests Common core was found and 1.
of the child selected as the best solution
P 3:27(1) Parents can agree on contact Common core was found and 1.
Th ird persons who hold PR can No common core was found and 4.
agree on contact the best solution was selected
P 3:27(2) CA may scrutinize the agreement No common core was found and 4.
P 3:28 CA may restrict or terminate Common core was found and 1.

contact selected as the best solution
Procedure for restriction or No common core was found and 5.
termination the solution was left to national law
76 Intersentia

method
P 3:29 Informing the other holder of PR Common core was found and 1.
about the personal situation of the selected as the best solution
child
Informing third persons No common core was found and 5.
Also in respect of Section B on the Maintenance of Personal Relationships in

Chapter V the solutions selected can only be classified into three approaches.
First, a common core was found and selected as the best solution. This applies to
the right of the child to have contact with his or her parents and with close rela-
tives (Principle 3:25(1)(2)); the content of contact (Principle 3:26(1)) and the gen-
eral premise that contact should only take place if it is in the best interest of the
child (Principle 3:26(2)); the freedom of parents to agree on contact (Principle
3:27(1)); the power of the competent authority to restrict or terminate contact
(Principle 3:28) and, finally, the obligation of parents to inform the other parent
about the personal situation of the child (Principle 3:29). Second, no common
core was found and the best solution was selected. Three issues fall under this
category: Contact between the child and a third person due to close personal rela-
tions should be possible (Principle 3:25(3)); also third persons who are holders of
parental responsibilities may agree on contact (Principle 3:27(1)); and, finally, all
agreements on contact may be scrutinized by the competent authority (Principle
3:27(2)). At last, the third category: no common core was found and the solution
was left to national law. Four aspects are not addressed by the CEFL Principles:
the right of close relatives and third persons to see the child against the will of the
holders of parental responsibilities (Principle 3:25(2)(3)), how parental responsi-
bilities might be restricted or terminated (the procedure) (Principle 3:28) and
informing third persons about the child’s personal situation.
Chapter VI: Termination of Parental Responsibilities

method
P 3:30(1) Ex lege termination of PR Common core was found and 1.

P 3:30(2) Adoption by a parent’s partner No common core was found and 4.

only terminates the PR of the other the best solution was selected
parent
P 3:31(1) PR belong ex lege to the surviving Common core was found and 1.
parent if PR are exercised jointly selected as the best solution
Intersentia 77

method
P 3:31(2) CA decides whether surviving Common core was found, but a 2.

parent or third person becomes better solution was selected
holder of PR if the parent, who
held PR alone, dies
P 3:31(3) Protective measures to be taken by No common core was found and 4.
the CA regarding the person and the best solution was selected
property of the child in case of
death of both parents
Kind of measures to be taken No common core was found and 5.
Possibility for the parents to No common core was found and 5.
appoint a new holder of PR the solution was left to national law
Only in Chapter VI on the Termination of Parental Responsibilities has the CEFL

opted for a better solution despite the fact that a common core could be discov-
ered. What should happen if the parent, who is the sole holder of parental respon-
sibilities, dies? Should the surviving parent or a third person, e.g. the deceased
parent’s partner, become a holder of parental responsibilities by operation of law?
Although most legal systems make no distinction between the surviving parent
who does or does not hold parental responsibilities and consequently determine
that in particular the parent who is not a holder of parental responsibilities auto-
matically obtains this position, the CEFL opted for a solution which it considers
to correspond better with the best interests of the child. This implies that the
competent authority should take a decision about who should be attributed with
parental responsibilities if the parent holding sole parental responsibilities dies
(Principle 3:31(2)). This guarantees that the concrete circumstances of the case are
reflected and only the interests of the child are finally decisive. A general rule
attributing parental responsibilities to the parent who either never held parental
responsibilities or whose parental responsibilities had been terminated would not
be in harmony with the general concern about the welfare of the child. If, how-
ever, parental responsibilities were held jointly and one of the parents dies the
common core was followed (Principle 3:31(1)). Moreover, the circumstances which
in almost all jurisdictions lead to the termination of parental responsibilities by
operation of law (majority, entering into a formal relationship, being adopted and
death) are adopted as the absolute common core in Principle 3:30(1). If the par-
ent’s partner adopts the child of the parent, however, Principle 3:30(2) favours the
rule that the parental responsibilities in relation to the other parent should be
terminated. In respect of this issue the solutions in the countries represented in
the CEFL differ and a common core was not evident. The same applies when both
parents die. In this situation, Principle 3:31(3) proposes that the competent author-
78 Intersentia
ity should take protective measures regarding the child’s person and property.
However, what kind of measures may be taken and whether parents should have
the possibility to appoint a new holder of parental responsibilities in advance have
been left to national law (Principle 3:31(3)).
Chapter VII: Discharge and Restoration of Parental Responsibilities

method
P 3:32 General clause in the case of being Common core was found and 1.
discharged from PR selected as the best solution
P 3:33(1) Discharge may be requested by the Common core was found and 1.
parent with PR or any institution selected as the best solution
protecting the child’s interest
The child may request the discharge No common core was found and 4.
Procedural implementation No common core was found and 5.
P 3:33(2) CA may act on its own motion Common core was found and 1.
P 3:34 Restoration of PR if the circum- Common core was found and 1.
stances have changed selected as the best solution
In the Principles of Chapter VII on the Discharge and Restoration of Parental

Responsibilities the common core dominates. According to the CEFL the solu-
tions provided in the majority of the systems reflect the best solutions. Principle
3:33(1), however, not only allows any parent having parental responsibilities and
any institution protecting the interests of the child to request the discharge, but
also extends this possibility to the child. This might further strengthen his or her
position. Only the procedural implementation of the discharge has not been dealt
with and as a result has been referred to national law.
Chapter VIII: Procedure

method
P 3:35(1) CA can be a judicial body Common core was found and selected 1.
CA can be an administrative No common core was found and the 4.

body best solution was selected
Decision of the CA may be Common core was found and selected 1.

modified if there is a change of as the best solution
circumstances
Intersentia 79

method
P 3:35(2) Appointment of a suitable Common core was found and selected 1.

person to investigate the child’s as the best solution
circumstances
Only in case of necessity No common core was found and the 4.

best solution was selected
P 3:36 Increased awareness of ADR Common core was found and selected 1.
mechanisms as the best solution
Compulsory alternative dispute No common core was found and the 5.

resolution solution was left to national law
P 3:37(1) CA hears the child in all Common core was found and selected 1.
proceedings concerning PR as the best solution
CA has to give reasons for No common core was found and the 4.
refusing to hear the child best solution was selected
Stage of proceeding at which the No common core was found and the 5.
child should be heard solution was left to national law
P 3:37(2) Hearing can take place directly No common core was found and the 4.
or indirectly best solution was selected
P 3:37(3) Hearing in an appropriate Common core was found and selected 1.

manner concerning the child’s as the best solution
age and maturity
Method and place of hearing No common core was found and the 5.
solution was left to national law
Presence of other persons No common core was found and the 5.

during the hearing solution was left to national law
P 3:38 Appointment of a special Common core was found and selected 1.

representative if the child’s as the best solution
interests confl ict with those of
the holders of PR
Appointment of a special No common core was found and the 4.

representative when the welfare best solution was selected
of the child is otherwise at risk
P 3:39(1) Enforcement of the decision of Common core was found and selected 1.
the CA and of an agreement as the best solution
between the holders of PR
P 3:39(2) Refusal of enforcement due to Common core was found and selected 1.
the child’s best interests as the best solution
The content of the final Chapter is dedicated to Procedure. In 2004, at the 2nd
CEFL conference, Frédérique Ferrand forcefully persuaded the CEFL to also deal
80 Intersentia
to a certain extent with procedural law. The CEFL should not be afraid to include
subjects other than substantive law in their Principles because it is now some-
thing of a myth to maintain that procedural law cannot and should not be harmo-
nised.17 This time we have convincingly followed her advice and drafted five Prin-
ciples. All five Principles are based on the common core. These concern the
following issues: It is generally acknowledged and practised that in deciding on or
intervening in matters of parental responsibilities the situation of the child should
be investigated. To that end, the competent authority which, according to Princi-
ple 3:35, can either be a judicial or an administrative body, should, where neces-
sary, appoint any suitable person or body in order to obtain a clear view of the
child’s situation. In addition to this more traditional approach the increasing
importance of alternative dispute resolution, which is being recognised by all
national laws,18 is also acknowledged by the Principles. Also in this field the com-
mon core is apparent. Consequently, in all disputes regarding parental responsi-
bilities alternative dispute resolution mechanisms should be available (Principle
3:36). Principle 3:37(1) stresses that the child should be heard in the context of
proceedings. It is recognised, however, that there are situations where such a hear-
ing could do more harm than good. If the authority decides not to hear the child
it should give specific reasons for this. In this respect a common core is not avail-
able therefore the best solution was selected instead. There is no uniform approach
in the national systems as to whether the hearing of the child should take place
directly before the competent authority or indirectly before a person or body
appointed by the competent authority. The Principles prefer a direct hearing; the
court should use the knowledge of experts but should form its own impression.
Additionally, the child should be heard in a manner which is appropriate to his or
her age and maturity (Principle 3:37 (3)). No specific age limit is given. It is the
common core of the majority of the 22 jurisdictions represented in the CEFL that
the child should have a special representative appointed in all cases in which the
child’s interest could be in conflict with those of the holders of PR or in which the
welfare of the child is otherwise at risk. This guarantee is provided in Principle
3:38. The appointment of a special representative should take place ex officio by an
order of the competent authority or may be requested by the child subject to the
condition that he or she has sufficient understanding. Finally, the principle of the
speedy and effective enforcement of a decision by the competent authority or an
agreement concerning parental responsibilities is approved in Principle 3:39. This
is the main rule. Exceptionally, the enforcement may not take place if it is obvi-
ously irreconcilable with the child’s best interests. Consequently, and subject to
17 Ferrand, F., ‘Divorce and Spousal Agreements’, in: Boele-Woelki, K., ibid., note 4, p. 71–82
(81).
18 Boele-Woelki, K./Braat, B./Curry-Sumner, I., ibid., note 3, p. 741 ff.
Intersentia 81
the condition that the child has sufficient understanding, a residence or contact
order, for instance, should not be enforced against the wishes of the child.
5. BRIEF COMPARISON OF THE DIFFERENT CEFL

SETS OF PRINCIPLES
A brief comparison between CEFL Principles reveals the following findings. The
Principles on Parental Responsibilities contain 39 Principles whereas the first set
regarding Divorce and Maintenance between Former Spouses has only 20 Princi-
ples. This indicates the complexity of the law of parental responsibilities. More
importantly, international and European instruments are dominant in the field of
parental responsibilities, whereas they do not exist in the field of divorce and
maintenance between former spouses as far as substantive law is concerned.
Regarding private international instruments in these areas the situation is differ-
ent.19 Nevertheless, the CEFL only referred to the Brussels II bis Regulation in the
introduction to the first CEFL Principles and not to this or any other interna-
tional instrument in the comparative overviews or comments under the specific
Principles. The existence of so many international and European instruments
addressing the parent-child relationship forced the drafters of the principles in
this field to carefully study these instruments and to put all of them into the right
place. On the one hand, this made it easier to deal with specific issues. On the
other hand, it was sometimes more difficult because, in addition to the extensive
national reports, we had to take these international and European standards into
account.
Another difference between the two ‘yellow books’ concerns procedural issues.
Five principles are included in the last chapter of the Parental Responsibilities
Principles. In that sense progress has been made.
In respect of the approaches applied the general conclusion is that the great major-
ity of subjects in the field of parental responsibilities represent common core solu-
tions. In the field of divorce and maintenance between former spouses the com-
mon core is also present but is not as overwhelmingly dominant as in the field of
parental responsibilities. However, also a long list of aspects of the law on divorce
and maintenance, with respect to which the CEFL was able to detect a common
core as well as converging tendencies, has been compiled.20 Generally, it can be
19 Boele-Woelki, K., ‘The European Agenda: an Overview of the Current Situation in the Field
of Private International Law and Substantive law’, IFL 2006, p. 149–154 (149–151).
20 Boele-Woelki, K., ‘Building on Convergence and Coping with Divergence in the CEFL Prin-
ciples of European Family Law’, in: Antokolskaia, M., Convergence and Divergence of Family
Law in Europe, European Family Law Series no. 18, p. 253–269.
82 Intersentia
concluded that in drafting the CEFL Principles it was discovered that more coun-
tries now take the same approach and, within a certain approach, the differences
are becoming less pronounced. After evaluating their effectiveness and suitabil-
ity, the common solutions were considered to be the best solutions. As a result we
opted for a better law solution less frequently in the field of parental responsibili-
ties. Furthermore, it is striking that the third methodological approach (a com-
mon core was found but the solution was left to national law) was not applied in
the Principles of Parental Responsibilities whereas, in contrast, in respect of a few
aspects this approach was adopted in the Principles of Divorce and Maintenance.
Finally and more importantly, it should be stressed that the Parental Responsi-
bilities Principles, in contrast to the first set, also address completely new aspects
which in most national systems are either not possible or rarely occur in practice
whereas in others the concepts have only recently been (re)introduced. Specifi-
cally, the Principles on alternating residence and relocation, for instance, provide
an answer to new developments.
6. COMING TO A CLOSE
By and large, the Divorce/Maintenance and the Parental Responsibilities Princi-

ples form a frame of reference which is useful for any legislator. Comparative
research has been carried out in the respective fields, the material is easily acces-
sible and widely disseminated, similarities and differences are determined, expla-
nations are provided and, finally, while evaluating the solutions common Princi-
ples are proposed. They are based on the comparative findings.
The whole project is a long-term, time-consuming and ambitious enterprise.

Throughout the past six years, however, the cooperation among the CEFL experts
has proven to be highly fruitful, motivating, supportive and reliable and extremely
enjoyable. We are continually learning from each other’s jurisdictions, we are
becoming more open towards new and different solutions and we are trying to
solve functional problems from a European perspective. There is sufficient reason
to be confident that CEFL’s teamwork will also be a success during our next
endeavour, namely the property relationship between spouses which constitutes
CEFL’s third working field.
Apart from the current and future activities it may be noted that it took the CEFL
three years to complete the Principles on Parental Responsibilities. During ten
meetings of the Organising Committee and one meeting of the Expert Group the
huge amount of comparative material was researched and studied, the Principles
were drafted and discussed, amended and improved. It should be considered to be
of importance that in the end the final result will acquire a decent standing within
Intersentia 83
the plethora of international and European instruments addressing the parent-

child relationship. Then CEFL’s final goal will have been achieved. Only by the
empirical testing of the Principles in a number of legal systems can one demon-
strate whether they are indeed acceptable and/or are regarded as an improvement
on existing national laws. This has been done by Esin Örücü and Jane Mair in
respect of the Divorce and Maintenance between Former Spouses Principles.21
They have recently announced that they will embark on a similar project in rela-
tion to the Principles on Parental Responsibilities. With great interest the CEFL is
looking forward to reading their comparative assessment.
APPENDIX
PRINCIPLES OF EUROPEAN FAMILY LAW REGARDING
PARENTAL RESPONSIBILITIES
PREAMBLE
Recognising that, notwithstanding the existing diversities of national family law

systems, there is nevertheless a growing convergence of laws;
Recognising that the free movement of persons within Europe is hindered by
the remaining differences;
Desiring to contribute to common European values regarding the child’s
rights and welfare;
Desiring to contribute to the harmonisation of family law in Europe and to
further facilitate the free movement of persons within Europe;
The Commission on European Family Law recommends the following Princi-
ples:
CHAPTER I: DEFINITIONS
Principle 3:1 Concept of parental responsibilities

Parental responsibilities are a collection of rights and duties aimed at promoting
and safeguarding the welfare of the child. They encompass in particular:
(a) care, protection and education;
(b) maintenance of personal relationships;
(c) determination of residence;
(d) administration of property, and
(e) legal representation.
21 Örücü, E./Mair, J. (eds), Juxtaposing Legal Systems and the Principles of European Family Law
on Divorce and Maintenance, European Family Law Series no. 17, 2007.
84 Intersentia
Principle 3:2 Holder of parental responsibilities

(1) A holder of parental responsibilities is any person having the rights and duties
listed in Principle 3:1 either in whole or in part.
(2) Subject to the following Principles, holders of parental responsibilities are:
(a) the child’s parents, as well as
(b) persons other than the child’s parents having parental responsibilities in
addition to or instead of the parents.
CHAPTER II: RIGHTS OF THE CHILD
Principle 3:3 Best interests of the child

In all matters concerning parental responsibilities the best interests of the child
should be the primary consideration.
Principle 3:4 Autonomy of the child

The child’s autonomy should be respected in accordance with the developing abil-
ity and need of the child to act independently.
Principle 3:5 Non-discrimination of the child

Children should not be discriminated on grounds such as sex, race, colour, lan-
guage, religion, political or other opinion, national, ethnic or social origin, sexual
orientation, disability, property, birth or other status, irrespective of whether
these grounds refer to the child or to the holders of parental responsibilities.
Principle 3:6 Child’s right to be heard

Having regard to the child’s age and maturity, the child should have the right to
be informed, consulted and to express his or her opinion in all matters concern-
ing the child, with due weight given to the views expressed by him or her.
Principle 3:7 Conflict of interests

The interests of the child should be protected whenever they may be in conflict
with the interests of the holders of parental responsibilities.
CHAPTER III: PARENTAL RESPONSIBILITIES OF PARENTS AND THIRD

PERSONS
Principle 3:8 Parents

Parents, whose legal parentage has been established, should have parental respon-
sibilities for the child.
Intersentia 85
Principle 3:9 Third persons

Parental responsibilities may in whole or in part also be attributed to a person
other than a parent.
Principle 3:10 Effect of dissolution and separation

Parental responsibilities should neither be affected by the dissolution or annul-
ment of the marriage or other formal relationship nor by the legal or factual sepa-
ration between the parents.
CHAPTER IV: EXERCISE OF PARENTAL RESPONSIBILITIES
SECTION A: PARENTS
Principle 3:11 Joint exercise

Parents having parental responsibilities should have an equal right and duty to
exercise such responsibilities and whenever possible they should exercise them
jointly.
Principle 3:12 Daily matters, important and urgent decisions

(1) Parents having joint parental responsibilities should have the right to act alone
with respect to daily matters.
(2) Important decisions concerning matters such as education, medical treat-
ment, the child’s residence, or the administration of his or her property should
be taken jointly. In urgent cases a parent should have the right to act alone. The
other parent should be informed without undue delay.
Principle 3:13 Agreement on exercise

(1) Subject to the best interests of the child, parents having joint parental respon-
sibilities may agree on the exercise of parental responsibilities.
(2) The competent authority may scrutinize the agreement.
Principle 3:14 Disagreement on exercise

(1) Where parents having joint parental responsibilities cannot agree on an
important matter they may apply to the competent authority.
(2) The competent authority should promote agreement between the parents.
(3) Where agreement cannot be reached the competent authority should divide
the exercise of parental responsibilities between the parents or decide the dis-
pute. Nigel: do we have to insert a comma after reached?
86 Intersentia
Principle 3:15 Sole exercise upon agreement or decision

Subject to the best interests of the child a parent may exercise parental responsi-
bilities alone
(a) upon agreement between the parents according to Principle 3:13, or
(b) upon a decision of the competent authority.
Principle 3:16 Sole exercise by one parent

If only one parent has parental responsibilities he or she should exercise them
alone.
SECTION B: THIRD PERSONS
Principle 3:17 Exercise in addition to or instead of the parents

A person other than a parent may exercise some or all parental responsibilities in
addition to or instead of the parents.
Principle 3:18 Decisions in daily matters

The parent’s partner living with the child may take part in decisions with respect
to daily matters unless the other parent having parental responsibilities objects.
CHAPTER V: CONTENT OF PARENTAL RESPONSIBILITIES
SECTION A: THE CHILD’S PERSON AND PROPERTY
Principle 3:19 Care, protection and education

(1) The holders of parental responsibilities should provide the child with care,
protection and education in accordance with the child’s distinctive character
and developmental needs.
(2) The child should not be subjected to corporal punishment or any other humil-
iating treatment.
Principle 3:20 Residence

(1) If parental responsibilities are exercised jointly the holders of parental respon-
sibilities who are living apart should agree upon with whom the child
resides.
(2) The child may reside on an alternate basis with the holders of parental respon-
sibilities upon either an agreement approved by a competent authority or a
decision by a competent authority. The competent authority should take into
consideration factors such as:
(a) the age and opinion of the child;
Intersentia 87
(b) the ability and willingness of the holders of parental responsibilities to

cooperate with each other in matters concerning the child, as well as
their personal situation;
(c) the distance between the residences of the holders of the parental respon-
sibilities and to the child’s school.
Principle 3:21 Relocation

(1) If parental responsibilities are exercised jointly and one of the holders of
parental responsibilities wishes to change the child’s residence within or out-
side the jurisdiction, he or she should inform the other holder of parental
responsibilities thereof in advance.
(2) If the other holder of parental responsibilities objects to the change of the
child’s residence, each of them may apply to the competent authority for a
decision.
(3) The competent authority should take into consideration factors such as:
(a) the age and opinion of the child;
(b) the right of the child to maintain personal relationships with the other
holders of parental responsibilities;
(c) the ability and willingness of the holders of parental responsibilities to
cooperate with each other;
(d) the personal situation of the holders of personal responsibilities;
(e) the geographical distance and accessibility;
(f) the free movement of persons.
Principle 3:22 Administration of the child’s property

(1) The holders of parental responsibilities should administer the child’s property
with due care and diligence in order to preserve and where possible increase
the value of the property.
(2) In administering the child’s property the holders of parental responsibilities
should not make gifts unless the gifts are deemed to be made under a moral
obligation.
(3) The income derived from the child’s property which is not needed for the
proper management of the property or for the maintenance and education of
the child may, where necessary, be used for the needs of the family.
Principle 3:23 Restrictions

(1) The holders of parental responsibilities should not administer property
acquired by a child through a testamentary disposition or a gift, if the testator
or the donor so instructed.
(2) Similarly the earnings by the child should not be administered by the holders
of parental responsibilities unless the child is not of sufficient age and matu-
rity to decide himself or herself.
88 Intersentia
(3) Where transactions can have significant financial consequences for the child
the authorisation of the competent authority should be necessary.
Principle 3:24 Legal representation

(1) The holders of parental responsibilities should legally represent the child in
matters concerning the child’s person or property.
(2) Legal representation should not take place where there is a conflict of interest
between the child and the holders of parental responsibilities.
(3) Having regard to the child’s age and maturity, the child should have the right
to self-representation in legal proceedings concerning himself or herself.
SECTION B: MAINTENANCE OF PERSONAL RELATIONSHIPS
Principle 3:25 Contact with parents and other persons

(1) The child and the parents should have the right to obtain and maintain regu-
lar contact with each other.
(2) Contact should be established between the child and his or her close rela-
tives.
(3) Contact may be established between the child and persons with whom the
child has close personal relations.
Principle 3:26 Content of contact

(1) Contact comprises the child staying for a limited period of time with or meet-
ing a parent or person other than a parent with whom he or she is not usually
living; and any form of communication between the child and such person.
(2) Such contact should be in the best interests of the child.
Principle 3:27 Agreement

(1) Subject to the best interests of the child, the parents and the other persons
identified under Principle 3:25(2) and (3) may agree on contact.
(2) The competent authority may scrutinize the agreement.
Principle 3:28 Restrictions

Contact may be restricted, terminated or made subject to conditions by the com-
petent authority if the best interests of the child so require.
Principle 3:29 Information to parents

A parent should have the right to be informed about matters concerning the per-
sonal situation of the child.
Intersentia 89
CHAPTER VI: TERMINATION OF PARENTAL RESPONSIBILITIES
Principle 3:30 Termination

(1) Parental responsibilities should be terminated in the case of the child:
(a) reaching majority;
(b) entering into a marriage or registered partnership;
(c) being adopted;
(d) dying.
(2) If a parent’s partner adopts the child of the parent the parental responsibilities
in relation to the other parent should be terminated.
Principle 3:31 Death of the parents

(1) If parents have joint parental responsibilities and one of them dies the paren-
tal responsibilities should belong to the surviving parent.
(2) If a parent having sole parental responsibilities dies, responsibilities should be
attributed to the surviving parent or a third person upon a decision by the
competent authority.
(3) On the death of both parents, of whom at least one parent had parental respon-
sibilities, the competent authority should take protective measures in respect
of the person and the property of the child.
CHAPTER VII: DISCHARGE AND RESTORATION OF PARENTAL

RESPONSIBILITIES
Principle 3:32 Discharge of parental responsibilities

The competent authority should discharge the holder of parental responsibilities,
wholly or in part, where his or her behaviour or neglect causes a serious risk to the
person or the property of the child
Principle 3:33 Request for discharge of parental responsibilities

(1) The discharge of parental responsibilities may be requested by:
(a) any parent having parental responsibilities;
(b) the child, and
(c) any institution protecting the interests of the child.
(2) The competent authority may also order the discharge of parental responsi-
bilities of its own motion.
Principle 3:34 Restoration of parental responsibilities

Having regard to the best interests of the child, the competent authority may
restore parental responsibilities if the circumstances that led to the discharge no
longer exist.
90 Intersentia
CHAPTER VIII: PROCEDURE
Principle 3:35 Competent authority

(1) All decisions on parental responsibilities should be taken by the competent
authority which can either be a judicial or an administrative body.
(2) Where necessary, the competent authority should appoint any suitable person
or body to investigate the child’s circumstances.
Principle 3:36 Alternative dispute resolution

In all disputes regarding parental responsibilities alternative dispute resolution
mechanisms should be available.
Principle 3:37 Hearing of the child

(1) Subject to Principle 3:6, the competent authority should hear the child in all
proceedings concerning parental responsibilities but if it decides not to hear
the child it should give specific reasons.
(2) The hearing of the child should take place either directly before the competent
authority or indirectly before a person or body appointed by the competent
authority.
(3) The child should be heard in a manner appropriate to his or her age and matu-
rity.
Principle 3:38 Appointment of a special representative for the child

In proceedings concerning parental responsibilities in which there could either
be a serious conflict of interests between the child and the holders of parental
responsibilities or in which the welfare of the child is otherwise at risk, the com-
petent authority should appoint a special representative for the child.
Principle 3:39 Enforcement

(1) Failing voluntary compliance, a decision by the competent authority and an
enforceable agreement concerning parental responsibilities should be enforced
without delay.
(2) Enforcement should not take place if it is manifestly contrary to the best inter-
ests of the child.
Intersentia 91

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EUROPEAN CHALLENGES IN CONTEMPORARY FAMILY LAW

European Family Law Series

Published by the Organising Committee of the

Prof. Katharina Boele-Woelki (Utrecht)

Antwerp – Oxford – Portland

European Challenges in Contemporary Family Law

Some would maintain that it is impractical to develop principles of family law in

Katharina Boele-Woelki and Tone Sverdrup

Prof. Dr. Katharina Boele-Woelki

Prof. Dr. Ted M. de Boer

Prof. Dr. Dagmar Coester-Waltjen

Dr. Mariel Dimsey

Dr. Michael Hellner

Dr. Kathrin Kroll

Dr. Göran Lind

Prof. Dr. Peter Lødrup

Prof. Dr. Lucy Smith

Dr. Balázs Somfai

Prof. Dr. Tone Sverdrup

Dr. Aspasia Tsaoussis

Dr. Machteld Vonk

Prof. Robin Fretwell Wilson

Dr. Eleni Zervogianni

LIST OF AUTHORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

PART ONE. THE HARMONISATION OF FAMILY LAW

HUMAN RIGHTS AND THE HARMONIZATION OF FAMILY LAW IN

THE REHARMONISATION OF NORDIC FAMILY LAW

THE HARMONISATION OF FAMILY LAW IN THE UNITED STATES

1. Uniform Acts & Divorce Shopping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

PART TWO. CHILDREN AND THEIR PARENTS

RECENT DEVELOPMENTS IN CHILD LAW

THE CEFL PRINCIPLES REGARDING PARENTAL RESPONSIBILITIES:

1. A New Set of Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

THE RIGHT OF THE CHILD TO PARENTAGE (DESCENT)

MULTI-PARENT FAMILIES IN THE 21ST CENTURY

THE RECOGNITION OF HOMOSEXUAL PARENTS IN THE UNITED

TOWARDS A NEW CONCEPT OF PARENTHOOD: PROCREATIONAL

PART THREE. IRREGULAR MARRIAGES AND THE INFLUENCE OF

“TO AFFINITY AND BEYOND”: A CRITICAL ANALYSIS OF THE LAW

THE MUSLIM DOWER (MAHR) IN EUROPE – WITH SPECIAL

8. Mahr in Cases with Foreign Connecting Factors . . . . . . . . . . . . . . . . . . . . . 199

MULTICULTURALISM AND FAMILY LAW: THE CASE OF GREEK

PART FOUR. (PROPERTY) RELATIONS BETWEEN SPOUSES AND

LEGISLATION FOR THE SURVIVING COHABITANT FROM A

2.2. Identical Rules as for Marriage as to the Division of Property . . . . 245

FINANCIAL RELIEF BETWEEN COHABITANTS ON SEPARATION:

1. Introduction: The Social and Political Context. . . . . . . . . . . . . . . . . . . . . . . 269

3.3. What Governing Principles? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282

DIVIDING THE ASSETS UPON THE DISSOLUTION OF A MARRIAGE

1. Policy Reasons Underlying Matrimonial Property Law . . . . . . . . . . . . . . . 289

PROPERTY RELATIONS BETWEEN SPOUSES IN THE LEGISLATION

7.3. Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

PART FIVE. CROSS-BORDER FAMILY RELATIONSHIPS

THE SECOND REVISION OF THE BRUSSELS II REGULATION:

1. The Myth of Certainty and Predictability . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

THE MAINTENANCE REGULATION: A CRITICAL ASSESSMENT OF

1. Yet Another Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

2.6. Enforceability of Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362

UNIFICATION OF CONFLICT OF LAWS IN EUROPE

THE DISSOLUTION OF THE MATRIMONIAL PROPERTY REGIME

EUROPEAN CHALLENGES IN CONTEMPORARY FAMILY LAW:

1. Determining the Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413

1. A NEW SET OF PRINCIPLES