Contractualisation of Family Law - Global Perspectives by Frederik Swennen

By Frederik Swennen

This quantity offers worldwide and comparative views at the perpetual pendular flow of kinfolk legislations among prestige and agreement. It contributes to the topical educational debate on ‘family legislations exceptionalism’ by way of exploring the blurred strains among public legislations, inner most legislation and kin legislations, and sheds gentle at the many colors of gray that exist. The contributions concentrate on either significant and procedural kinfolk legislations on mom and dad and youngsters and on lifestyles companions, with specific cognizance for contractual preparations of family members formations and of clash answer. The speculation underlying all contributions used to be the rage in the direction of contractualisation of kinfolk legislations. A convergent learn end result as a result of the comparability of nationwide experiences used to be the ambivalent place of relatives legislations in felony platforms around the globe. That comparability indicates that, while family members legislations is obviously relocating in the direction of agreement with reference to outdated relatives formations, the opposite is correct for brand spanking new family members formations. The stream in the direction of agreement is never thought of to be contractualisation pur sang, with civil impact. The circulate in the direction of prestige, ultimately, doesn't inevitably witness ‘family legislations exceptionalism’ vis-`-vis inner most legislations, in view of the expanding nation interventionism in inner most legislations family members ordinarily. In sum, because the quantity exhibits, the excessive permeability of the demarcations among the kingdom, the relatives and the marketplace impedes a categorial approach.

This quantity is predicated at the common and chosen nationwide experiences at the subject “Contractualisation of kinfolk legislation” that have been awarded on the XIXth foreign Congress of Comparative legislation in Vienna in July 2014.

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253 The matter belongs to the private sphere of the partners. 254 In some legal systems, this consortium is regulated more in detail, for example by obliging to spouses to cohabit, to fidelity and to assist each other. 258 They would risk their marriage being considered null and void, for example as sham marriage not aimed at establishing a life community. 260 To consider such agreements binding would be an infringement on each partner’s personality rights. Only the Burundese and English reports more convincingly refer to the parties’ freedom to determine the content of their marriage; in England & 252 Canada (Common Law); Germany; Scotland; USA.

Comp. Québec and The Netherlands with regard to the registered partnership. 297 Belgium; The Netherlands. 298 Spain. 299 Brazil; Burundi; Canada (Common Law); Cameroon; Denmark; England & Wales; Finland; France; Germany: Bundesgerichtshof 9 June 1986, BGHZ 97, 304; Greece; Ireland; Poland; Portugal; Romania; Scotland; Spain; Taiwan; The Netherlands; USA. 300 Romania. 301 Germany; Greece; Romania. 36 F. 302 The system of covenant marriages is interesting with a view of accommodating religious or philosophical minorities and could be considered as legal pluralism light.

30 F. 252 We will hereinafter look into private ordering of the personal resp. patrimonial mandatory content of formal relationships. We will not elaborate property relations between spouses (matrimonial property regimes) as such. 253 The matter belongs to the private sphere of the partners. 254 In some legal systems, this consortium is regulated more in detail, for example by obliging to spouses to cohabit, to fidelity and to assist each other. 258 They would risk their marriage being considered null and void, for example as sham marriage not aimed at establishing a life community.

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