Keywords
European law (EU and Council of Europe), family law, comparative law, CEFL, divorce, surrogacy, common trends and divergences
Abstract
This paper examines developments in European family law and considers whether a common core is gradually emerging. The first part is devoted to the European Union. Under the Treaties, substantive law on family matters, including the legal status of persons, falls within the competence of Member States. However, EU regulations govern jurisdiction and the recognition of court decisions and authentic instruments in several areas directly relevant for families and children in cross-border situations. Although these regulations do not directly deal with substantive family law, they can provide indirectly for a certain harmonization via uniform jurisdiction and recognition rules as well as, sometimes, common rules on the applicable law. Moreover, the European Court of Justice requires Member States to recognize the parenthood of a child as established in another Member State in order to guarantee the rights to free movement as well as equality before the law and non-discrimination. In order to broaden the scope of the children’s protection, the European Commission submitted in December 2022 a proposal for a Council regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood.
The second part turns to national family law. It first outlines the influence of the innovative case law of the ECtHR, as well as the work of the Commission on European Family Law in identifying common European principles of family law. It then examines national developments regarding divorce and surrogacy. While strong common trends can indeed be observed in the field of divorce, this is far less the case for surrogacy, where European States have adopted markedly different approaches. The article concludes that although clear convergences are emerging, significant divergences in the domestic regulation of many family-law issues continue to exist and are very likely to persist.
Repository Citation
Frédérique Ferrand,
Evolutions in European Family Law: Towards a Common Core?,
17 J. Civ. L. Stud.
(2025)
Available at: https://digitalcommons.law.lsu.edu/jcls/vol17/iss1/3