Family Law
Lecture 1, Part I – Introduction to Family Law
What does the word ‘family’ mean?
- Personal
- Legal
- Symbolic (dogs, communities)
- Religious
Two conceptual definitions of ‘family’;
a. A family is a married, civil partnered or cohabitating couple with or without children, or a
lone parent, with at least one child, who live at the same address.
b. A family is a group of people who are related to each other, especially parents and their
children;
Blood relatives
Group of relatives with the same name
Legal definition of Family Law;
A legal regulation of adult relationships and parent-child relationships, together with the financial
aspects of such relationships.
Issues addressed by Family Law;
- Marriage & divorce
- Unmarried cohabitation
- Names (keep in mind some EE countries)
- Parentage (origin and links between child and parents)
- Parental authority/responsibility (rights on custody etc.)
- Child support
- Matrimonial property law
- Inheritance law
Comparative v International Family Law
1. Comparative Family Law
Focuses on developments with its great variety of family law systems
Comprises a general, instructive and pointed comparison of the American and European
family law systems
2. International Family Law
Entails the rules for cross-border family relations
, Body of International (and European) instruments and decisions of supranational courts which
regulate family relationships
Legislative Framework; Sources
National level (every country)
Constitution, civil codes and statutes
Case law
Regional level; European Union/Inter-American
Human rights
Convention for the Protection of Human Rights and Fundamental Freedoms
Case law (Art. 8)
Regulation 2201/2003; parental responsibility
International level
Cross border family law/private international law
Global rights
UNCRC
Hague Adoption Convention
The role of the Public Policy;
- A doctrine, which addresses the principles, typical for certain country or region, that underpin
the operation of the legal system
- Affects the whole population
- It concerns values, that change and evolve with time
- The law in general is most effective when it corresponds with general social norms
European Convention on Human Rights
o Convention for the Protection of Human Rights and Fundamental Freedoms
o Opened for signature in Rome on 4 November 1950 and came into force in 1953
o The first instrument to give effect to certain of the rights stated in the Universal Declaration
of Human Rights and make them binding
Art.8 - Right to respect for private and family life
Art.12 - Right to marry
Art.14 - Prohibition of discrimination
ECtHR and ECJ
a. European Court of Human Rights only has jurisdiction over Member States that are
signatories to the European Convention on Human Rights. ECHR and ECtHR are both part of the
Council of Europe which has 47 member states, including Russia and the UK. All Council of Europe
, member states are party to the Convention and new members are expected to ratify the convention at
the earliest opportunity.
b. The Court of Justice of the European Union (ECJ) is ensuring EU law is interpreted and
applied the same in every EU country, and ensuring countries and EU institutions abide by EU
law.
Private v Family Life
1. Private Life
The right to private life embraces personal autonomy;
- The right to make choices regarding one’s own life without interference by the state
- To develop one’s own personality and to establish relationships with others
- To communicate
- Aspects; the physical and psychological integrity of a person, sex, life and gender, personal
data, reputation, names and photos
2. Family Life
Family life extends to the legally acknowledged ties between persons related by blood or
marriage;
- Husband and wife
- Parent and child
- Ties between siblings, grandparents and grandchildren or uncle/aunt and nephews/niece
- Stepparents
Margin of Appreciation
The term “Margin of Appreciation” refers to the space for manoeuvre that the ECtHR is willing to
grant national authorities, in fulfilling their obligations under the European Convention on Human
Rights.
The degree of flexibility is determining whether certain measures are necessary
It gives the needed flexibility to avoid damaging confrontations
The legal basis for the term may be found in jurisprudence and in administrative law
within every civil jurisdiction
Little discretion permitted in interfering with the private life (prohibition on
homosexual relations is not acceptable)
Greater margin for same-sex marriage, transgender marriage,…
Important Case Law;
Marckx v Belgium
Under Belgian law, no legal bond between an unmarried mother and her child results from the
mere fact of birth.
Lecture 1, Part I – Introduction to Family Law
What does the word ‘family’ mean?
- Personal
- Legal
- Symbolic (dogs, communities)
- Religious
Two conceptual definitions of ‘family’;
a. A family is a married, civil partnered or cohabitating couple with or without children, or a
lone parent, with at least one child, who live at the same address.
b. A family is a group of people who are related to each other, especially parents and their
children;
Blood relatives
Group of relatives with the same name
Legal definition of Family Law;
A legal regulation of adult relationships and parent-child relationships, together with the financial
aspects of such relationships.
Issues addressed by Family Law;
- Marriage & divorce
- Unmarried cohabitation
- Names (keep in mind some EE countries)
- Parentage (origin and links between child and parents)
- Parental authority/responsibility (rights on custody etc.)
- Child support
- Matrimonial property law
- Inheritance law
Comparative v International Family Law
1. Comparative Family Law
Focuses on developments with its great variety of family law systems
Comprises a general, instructive and pointed comparison of the American and European
family law systems
2. International Family Law
Entails the rules for cross-border family relations
, Body of International (and European) instruments and decisions of supranational courts which
regulate family relationships
Legislative Framework; Sources
National level (every country)
Constitution, civil codes and statutes
Case law
Regional level; European Union/Inter-American
Human rights
Convention for the Protection of Human Rights and Fundamental Freedoms
Case law (Art. 8)
Regulation 2201/2003; parental responsibility
International level
Cross border family law/private international law
Global rights
UNCRC
Hague Adoption Convention
The role of the Public Policy;
- A doctrine, which addresses the principles, typical for certain country or region, that underpin
the operation of the legal system
- Affects the whole population
- It concerns values, that change and evolve with time
- The law in general is most effective when it corresponds with general social norms
European Convention on Human Rights
o Convention for the Protection of Human Rights and Fundamental Freedoms
o Opened for signature in Rome on 4 November 1950 and came into force in 1953
o The first instrument to give effect to certain of the rights stated in the Universal Declaration
of Human Rights and make them binding
Art.8 - Right to respect for private and family life
Art.12 - Right to marry
Art.14 - Prohibition of discrimination
ECtHR and ECJ
a. European Court of Human Rights only has jurisdiction over Member States that are
signatories to the European Convention on Human Rights. ECHR and ECtHR are both part of the
Council of Europe which has 47 member states, including Russia and the UK. All Council of Europe
, member states are party to the Convention and new members are expected to ratify the convention at
the earliest opportunity.
b. The Court of Justice of the European Union (ECJ) is ensuring EU law is interpreted and
applied the same in every EU country, and ensuring countries and EU institutions abide by EU
law.
Private v Family Life
1. Private Life
The right to private life embraces personal autonomy;
- The right to make choices regarding one’s own life without interference by the state
- To develop one’s own personality and to establish relationships with others
- To communicate
- Aspects; the physical and psychological integrity of a person, sex, life and gender, personal
data, reputation, names and photos
2. Family Life
Family life extends to the legally acknowledged ties between persons related by blood or
marriage;
- Husband and wife
- Parent and child
- Ties between siblings, grandparents and grandchildren or uncle/aunt and nephews/niece
- Stepparents
Margin of Appreciation
The term “Margin of Appreciation” refers to the space for manoeuvre that the ECtHR is willing to
grant national authorities, in fulfilling their obligations under the European Convention on Human
Rights.
The degree of flexibility is determining whether certain measures are necessary
It gives the needed flexibility to avoid damaging confrontations
The legal basis for the term may be found in jurisprudence and in administrative law
within every civil jurisdiction
Little discretion permitted in interfering with the private life (prohibition on
homosexual relations is not acceptable)
Greater margin for same-sex marriage, transgender marriage,…
Important Case Law;
Marckx v Belgium
Under Belgian law, no legal bond between an unmarried mother and her child results from the
mere fact of birth.
