In this book we have revisited the Principles of European Family Law by collecting updated comparative material from the CEFL experts, comparing recent developments in the surveyed jurisdictions with each other, identifying trends common to many family systems in Europe and, finally, comparing them with our proposals for how to harmonise the areas of divorce, maintenance between former spouses, parental responsibilities, property relations between spouses, and to issues of property, maintenance and succession rights of de facto unions in Europe.

Revisiting the CEFL Principles of European Family Law has been an exciting enterprise. For the first time we have addressed all five areas covered by the Principles at the same time. Equally, for the first time we have compared the Principles with recent developments in the European jurisdictions surveyed rather than drawing inspiration from comparing the European systems in order to propose our Principles in the first place. In addition, we once again carefully scrutinised almost every one of the Principles, which had been the subject of extensive discussion amongst ourselves and with CEFL experts prior to their initial adoption and publication. Finally, for the first time we have added Charts to our comparative exercise which are a valuable aide-mémoire to recent legislation and whether or not they conform to general trends.

This chapter brings our revisiting project to a close. We begin by recalling our general considerations which accompanied the comparative research-based drafting of the Principles from the very start since 2001.

INTRODUCTION

The CEFL Principles of European Family Law Regarding Property Relations Between Spouses were published in 2013.1 They comprise 58 Principles (Principles 4:1–4:58) contained in three chapters. Chapter 1 provides for the general rights and duties of the spouses. Chapter 2 concerns the principles on matrimonial property agreements. Chapter 3 focuses on matrimonial property regimes and introduces two alternative regimes: participation in acquisitions and community of acquisitions. In drafting these Principles, account was taken of the position in 26 European jurisdictions, reflecting the legal situation as at August 2008 (in some cases until the end of 2008). The updated national reports cover the later legal developments in most of these jurisdictions until the end of 2020/beginning of 2021. Regrettably, no update reports were received from czechia, lithuania, malta, slovakia and switzerland. The update reports of estonia and slovenia, however, provide information on later developments in respect of spousal property relations, even though these jurisdictions were not included in the original national surveys on marital property relations. These two jurisdictions have been included in the following analysis in order to give a broader perspective, and thus a more inclusive comparison, of recent European trends on the regulation of spouses’ property relations.

The update reports show that spousal property relations have been subject to far-reaching legislative reforms, in one way or the other, in a number of the jurisdictions during the period from 2009 to 2019, e.g., in austria (2009), belgium (2018), bulgaria (2009), catalonia (2010), denmark (2017), estonia (2009) hungary (2013), the netherlands (2018) and slovenia (2019).

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 the harmonisation of family law in Europe and to facilitate further the free movement of persons within Europe;

Desiring to balance the interests of spouses and society and to support actual gender equality, taking into account the best interests of children;

The Commission on European Family Law recommends the following Principles:

PART I: DIVORCE

CHAPTER I: GENERAL PRINCIPLES

Principle 1:1 Permission of divorce

• (1) The law should permit divorce.

• (2) No duration of the marriage should be required.

Principle 1:2 Procedure by law and competent authority

• (1) The divorce procedure should be determined by law.

• (2) Divorce should be granted by the competent authority which can either be a judicial or an administrative body.

Principle 1:3 Types of divorce

The law should permit both divorce by mutual consent and divorce without consent of one of the spouses.

CHAPTER II: DIVORCE BY MUTUAL CONSENT

Principle 1:4 Mutual consent

• (1) Divorce should be permitted upon the basis of the spouses’ mutual consent. No period of factual separation should be required.

• (2) Mutual consent is to be understood as an agreement between the spouses that their marriage should be dissolved.

• (3) This agreement may be expressed either by a joint application of the spouses or by an application by one spouse with the acceptance of the other spouse.

AIM AND OBJECTIVE

This book provides an update on recent developments in family law in Europe, predominantly in the areas of divorce, maintenance between former spouses, parental responsibilities, property relations between spouses, and de facto unions. In these areas, the Commission on European Family Law (CEFL) has drafted its Principles of European Family Law, which in turn are based on national reports representing up to 30 European jurisdictions. The total number of jurisdictions varied according to each working field.1 The Principles can be considered as model laws for national legislators in their quest to reform their family law systems. In turn, new family law legislation inspired by the European Family Law Principles2 may contribute to the further harmonisation of family law in Europe. In addition to comparing recent developments among the European jurisdictions, they have been compared with the different sets of our Principles. This comparison is the focus of the present analysis. It was never our intention to rewrite the Principles, but to reflect on them in the light of new developments.

MATERIAL AND METHODOLOGY

The national reports upon which the Principles of European Family Law are based on the law as it stood in September 2002 (Divorce and Maintenance Between Former Spouses), December 2004 (Parental Responsibilities), August 2008 (Property Relations Between Spouses) and February 2015 (de facto Unions), whereas our Principles in these areas were only published in 2004, 2007, 2013 and 2019 respectively.

INTRODUCTION

The CEFL's Principles of European Family Law Regarding Maintenance Between Former Spouses were the second to be drafted and were published together with those regarding divorce in 2004. The Maintenance Principles comprise ten Principles (Principles 2:1–2:10). In drafting those Principles, account was taken of the position in 22 European jurisdictions, based on national reports on the law as it stood at the end of 2002.

In summary, the aim of the Maintenance Principles is to provide a common set of principles covering spousal support after divorce, regardless of whether the divorce is consensual or not. The basic underlying strategy is to limit post-divorce maintenance claims to where the creditor spouse has insufficient resources to meet his or her needs and the debtor spouse has the ability to satisfy those needs. For the most part, post-divorce spousal maintenance is envisaged to be short-term. Allowance is also made for the spouses to make their own maintenance agreement.

The updated reports cover later legal developments until 2020. Unfortunately, no update reports were received from two of the original 22 jurisdictions surveyed (czechia and switzerland). On the other hand, an update report was received from estonia, which was not one of the original jurisdictions surveyed, and that jurisdiction has been included in the following analysis.

INTRODUCTION

The CEFL's Principles of European Family Law Regarding Divorce were the first to be drafted, although they were published together with those regarding Maintenance Between Former Spouses in 2004. The Divorce Principles comprise 10 Principles (Principles 1:1–1:10). In drafting those Principles, account was taken of the position in 22 European jurisdictions, based on national reports on the law as it stood at the end of 2002.

In summary, the underlying strategy of the Divorce Principles is to provide for a simplified non-fault basis upon which divorce can be obtained. A distinction is made between divorce by mutual consent and divorce without the consent of one of the spouses, divorce being easier in the former case than in the latter and immediately available if the parties have been factually separated for six months. In the latter case, divorce is available simply on the basis of factual separation for one year. Various safeguards are in place to safeguard the interests of children under the age of 16 and to give some protection to the economic needs of spouses. An important innovation of the Principles was the removal of any reference to the ‘irretrievable breakdown of the marriage’.

The updated reports cover later legal developments until 2020, though some reference has been made to subsequent developments. Unfortunately, no update reports were received from two of the original 22 jurisdictions surveyed (czechia and switzerland).

Chapter 10 identifies 21 variants of the good-faith purchase doctrine, which are often different combinations of several key factors. That said, none of the 21 schemes are the most efficient. Among the forms of good-faith purchase doctrine currently in use, the market overt rule comes closest to ex ante efficiency because original owners, merchant dealers, and consumers all have incentives to spend close to optimal costs on verification and prevention, and the movables in question are more likely to be in the hands of higher valuers. Drawing on mechanism design literature, Chapter 10 argues that when both an original owner and a consumer are non-negligent, the two parties can be assigned 50% shares of the movable in question, and an ensuing internal auction between them can ex post tease out who values the resource more. This internal auction design is inexpensive to administer.

The first book of its kind, Property Law: Comparative, Empirical, and Economic Analyses, uses a unique hand-coded data set on nearly 300 dimensions on the substance of property law in 156 jurisdictions to describe the convergence and divergence of key property doctrines around the world. This book quantitatively analyzes property institutions and uses machine-learning methods to categorize jurisdictions into ten legal families, challenging the existing paradigms in economics and law. Using also other cross-country data, this book empirically tests theories about property law and comparative law. Using economic efficiency as both a positive and a normative criterion, each chapter evaluates which jurisdictions have the most efficient property doctrines, concluding that the common law is not more efficient than the civil law. Unlike many prior studies on empirical comparative law, this book provides detailed citations to laws in each jurisdiction. Data and documentation are released with the book.

Chapter 12 discusses the specificatio (mistaken improver) doctrine. About two-thirds jurisdictions have this doctrine, and the doctrinal structure is highly convergent. Most of these jurisdictions limit the application of the doctrine when the nonconsensual improvement is irreversible, and most assign sole ownership to either original material owners or improvers. Almost all jurisdictions adopt the disparity-of-value test and/or the transformation test, but there are eight ways that bad-faith improvers are treated. The disparity-of-value test, in and of itself, does not tend to assign ownership to higher valuers, however. While no ex ante rule-making can ensure allocative efficiency ex post, requiring both the disparity-of-value test and the transformation test is more likely to increase efficiency. Lawmakers looking for a radical reform proposal may also adopt the internal auction mechanism to resolve the problem in specificatio. Besides, even good-faith improvers should not be compensated, as the non-transformative, low-value-increasing improvements are unlikely to be what material owners want. A clear rule of no compensation also decreases litigation cost.

Chapter 7 summarizes the various partition approaches used around the world, finding that partition in kind is often preferred, with selling co-owned things through public or internal auctions a common back-up plan. Perhaps as a result, the existing literature has focused on partition in kind and partition by sale, while ignoring intermediate partition approaches like partial partition that are prevalent in practice. Little attention has been paid to the use of revelation mechanisms such as self-assessment, nor to how judicial partition rules affect co-owners’ pre-judicial-partition behaviors. Chapter 7 brings partial partition into the theoretical framework and proposes a new and feasible partition method that utilizes private information among co-owners and makes partition more efficient.

Chapter 1 makes use of two empirical approaches. Its first part uses property law from 136 jurisdictions in an unsupervised machine-learning method (hierarchical clustering) that divide these jurisdictions into 10 legal families. Unlike the traditional wisdom that highlights the difference between common law and civil law, this chapter finds that, in terms of property doctrines, a trichotomy better describes the legal systems: one big group is jurisdictions affected by French property law; another big group is composed of jurisdictions that follow or resemble German property law; and the final group contains common-law jurisdictions, Nordic countries, and a number of socialist jurisdictions. The second part of Chapter 1 re-combines 156 jurisdictions into 149 countries, and computes the correlation coefficients among each country pair, to show dyadic similarities in property law.