Perspectives for Family law in Europe: A comparison between Principles of European Family law and the German Civil Code regarding divorce and post-marital maintenance

Abstract: The ongoing Europeanisation is readily identifiable in our day-to-day life. Particularly in the field of law, the elaboration of a uniform and harmonised European private law is promoted and a truly European legal science is forced. Yet, comparative law and unification of law have concentrated on certain areas, which include mainly commercial law and related areas of civil law. The main issue of this thesis is to answer how family law fits in the overall process of harmonisation of private law. Due to so-called cultural constraints and the lack of clarity regarding competences for European institutions to develop one substantial family law, it was until recently remained almost completely outside harmonisation activities. However, social circumstances for families have turned out to be more similar in the last few years. Divorce rates for example are increasing and so are the number of single parents and reconstituted families within the EU. That is why even family law has become smoothly an object of comparative law as well as of harmonisation of law. Furthermore, in 2001, an international self-appointed Commission (CEFL) accepts the challenge to deal with this complicated field of law. In December 2004, it presented its first results: ''Principles on European Family law regarding divorce and maintenance between former spouses''. This thesis consists of mainly two parts. The first part explores the development of a European family law until today. For this purpose, investigation on achievements in the field of ''private international law of families'' and, further, the assessment of implications regarding ''the family'' within Community law, particularly in the field of free movement of persons, were necessary. To address only one of numerous problems, which arise out of international divorces today, the analysis shows that the legal situation is neither sufficient in respect of determination of jurisdiction nor conflict-of-law rules. Therefore, a call towards more efficient harmonisation measures remains. But, harmonisation within family law might only be feasible, if there is an emphasis on what is common to the European legal systems. Especially regarding the still existing national sovereignty in this field of law differences must be placed in perspective rather than be denied. Member States must gain in confidence. An important contribution to this process can be made by academics. This evaluation leads to the second part of this paper, which contains the comparison between the Principles of the CEFL and German law regarding divorce and maintenance between former spouses. The Principles are not binding, but should be considered as recommendations to the legislators. So, they enable to investigate if the German system is satisfactorily modern and compatible with the set up standard. Besides some similarities, the comparison shows discrepancies in many respects. The CEFL favours the consensual divorce by respecting the autonomous will of the spouses. Even maintenance claims are marked by the Principle of self-sufficiency and a clean break. The German legal system is based on the protection of families according to Article 6 German Basic law, which contains not only the guarantee of the marriage but also post-marital solidarity when the marriage is irretrievable broken down. Consequently, this thesis reasons that if the Principles became substantial law one day within the national systems or even an integral part of one European Civil Code, it would be complicated for German legislators to cope with this task. Nevertheless, the Principles would be a manifestation of an evolution, which can be recognized increasingly within the German legal practice.