THE PROCESS OF MODERNISATION OF FAMILY LAW IN EASTERN AND WESTERN EUROPE

THE PROCESS OF MODERNISATION OF FAMILY LAW IN EASTERN AND WESTERN EUROPE: Difference in Timing, Resemblance in Substance

EJCL
Vol. 4.2 September 2000

by Masha V. Antokolskaia(1)



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Contents
Introduction
1. The Catholic West and the Orthodox East: The formation of a uniform medieval canon of family law
2. From pre-Christian law via canon unification to modern times: A helical process?
3. The medieval dogmas: Obstacles to modern person-orientated family law
4. From the medieval uniform law to the diversity of modern times: Difference in timing, resemblance in substance
Conclusion
Notes
Literature


Introduction

Last year, I was asked to make a contribution to a report for the Netherlands Comparative Law Association on the prospects for the harmonisation and unification of family law in Europe.(2) This obliged me to scrutinise the stereotype argument that harmonisation and unification of family law is unfeasible because of unbridgeable historical and cultural differences between the various European countries. Going back in time in search of the roots of the diversity of current family law in Europe, I became highly interested in the correlation between the level of modernisation of family law and the influence of concepts inherited from medieval canon law. This correlation has been noticed by several scholars, on whose work I strongly rely.(3) What I suggest in this article is that this correlation is the key to important insights into the historical development of family law in Europe that allow a fundamental re-evaluation of the aforementioned argument of unbridgeable differences. I will devote some special attention to the post-Revolutionary reforms in Russia, because I have noticed that many attempts to explain the development of family law do not include them, or treat them as excesses, and place them outside explanatory theories. I think that Russian post-Revolutionary developments can and should be placed within an explanatory framework , and I will try to show how they can fit within such a framework. I should mention that, at the moment, my work on this subject is in a rather preliminary stage. The suggestions I make in this article are based on a preliminary study which has inspired me to undertake more extensive research in the coming years.

What I will submit can be summarised as follows:

1. The family law of the whole European continent before the Reformation was mainly uniform canon law. It consisted of two separate systems, Catholic and Orthodox, which in fact were very much alike. The unification of canon family law in the Catholic part of Europe was achieved around the 12th century, and brought about dramatic changes. In Orthodox Europe, the process of unification, although more spread out in time, led to almost the same results.

2. The development of family law from the end of the Middle Ages until today can be seen as the gradual abandonment of concepts of canon family law. Pre-ecclesiastical family law and current family law have more similarities between them than both have in relation to ecclesiastical family law. In a way, the process of distancing from the canonical heritage can be seen as a return to the informality of pre-ecclesiastical family law.

3. The process of gradually abandoning the concepts of canon law was essentially the same in all European countries, and took place under the influence of the same liberal ideas. The general trend can be described as the gradual change from a transpersonal to a personal approach. This process, however, did (and still does) not take place simultaneously. The major differences in the history and current state of the family law of the European countries can be considered differences in the timing and in the extent of this process. In countries with a persisting strong religious influence, such as Greece, Italy and Ireland, this process has plodded along wearily and slowly. In Scandinavia and Eastern Europe, where secularisation took place at an earlier stage and canonical concepts did not obstruct reform, the process was speedier and more radical. But the general direction of the changes was and is undoubtedly the same everywhere.

4. The composition of the group of countries where family law had already been radically revised at in the beginning of the 20th century - Scandinavia, the Soviet Union and Portugal - reveals a discrepancy between the level of economic development and the modernisation of family law,(4) and suggests a primary role of ideological factors such as breaking with religious concepts and the influence of liberal ideas.


1. The Catholic West and the Orthodox East: The formation of a uniform medieval canon of family law


In Western Europe, the formation of uniform canon rules on marriage and divorce had been completed by the beginning of the 12th century by the reforms of Pope Gregory VII (1073-1084). In spite of the schism of 1054 that separated the Orthodox countries from the West, a comparable formation process took place in the Orthodox world around the same time. The ecclesiastical unification concerned mainly the rules on marriage and divorce, but because of the crucial importance of those institutions for the determination of the legal position of offspring, for inheritance and for the rights to family property, the whole area of family law was influenced. Therefore it is possible to speak, with some reservations, of medieval canon family law in general.

The Gregorian reform was in many aspects the final point in the formation of uniform ecclesiastical family law,(5) but the beginning of the formation process was almost 600 years earlier. In the first centuries of Christianity, the Church did not pay much attention to marriage. The dominant ascetic and eschatological attitude in the early Church led to the disapproval of sexuality and the appreciation of celibacy above marriage.(6) The early Church did not have its own rules on marriage but tolerated the marriages entered into according to the secular law of the spouses (Roman law, Jewish law or Barbarian customary law).(7) Although different in many aspects, Roman and customary law had at that time as a common feature the absence of any obligatory civil or religious formalities for the conclusion of a marriage. Marriage was a matter for the family and did not fall under the competence of the state or of religious authorities. In Roman law, legal marriage was created by the mutual consent of the spouses (in the absence of marriage impediments).(8) As Christianity, originating as the religion of a small group of dissidents, eventually became the state religion of the Roman Empire, the ascetic disapproval of marriage gradually diminished.(9) The ascetic attitude came into conflict with a more worldly trend that strived towards the sacralisation of marriage, and this finally became the predominant attitude.

The contradiction between these two approaches may explain the slow pace with which ecclesiastical marriage law came to be formulated. In the 4th century, the tradition of blessing 'perfect' marriages by a priest came into existence.(10) Initially, that rite was of no significance for the lawfulness of the marriage. Later, it became one of the possible forms of the formation of a marriage. In Byzantium, Church solemnisation became obligatory in 893 by an Act of Emperor Leo VI. Around the 12th century, this rule was accepted in the whole Orthodox region.(11) The Roman principle of consensus facit nuptias was maintained, but Church solemnisation was added as a second constitutive element of a valid marriage. At the same time, the Orthodox Church proclaimed marriage to be a sacrament. Consensus and Church solemnisation together made marriage a sacrament.(12)

In the Catholic part of Europe this process took even longer. In post-Roman times and even in Carolingian times (8th to 10th century), the Church blessing was unusual and marriages were celebrated according to local customs.(13) At the time of Pope Gregory VII, the development of the concept of marriage as a sacrament was completed(14) and the Church ceremony was prescribed, but it was only after the Council of Trent that Church solemnisation actually became a prerequisite for the legal validity of a marriage. The difference with the Orthodox doctrine was that it was not blessing and consensus together, but rather consensus alone which made marriage sacred. The priest was more a witness than a main actor in the ceremony.(15)

The same picture arises if we look at the changes in the attitude towards concubinage. In Roman society, concubinage was accepted for unmarried persons as a secondary form of conjugal union. Among some peoples that inhabited Europe in post-Roman times concubinage was accepted even for a married man.(16) The early Church was also tolerant of concubinage. The concubine was a member of the household of the man, and her children were not entirely excluded from the family structure.(17) In Western Europe, the Church only started to oppose concubinage in the Carolingian era. Concubinage occurring simultaneously with marriage became impossible, and the children of a concubine could only inherit in the absence of offspring from the lawful marriage.(18) Around the 11th and12th centuries, the rules on marriage law became so imperative in both parts of Europe that concubinage left the stage completely. The concubine became no more than a mistress, and her children were bastardised.(19)

As marriage became more and more institutionalised, divorce law became more and more restrictive. In pre-Christian times, there was a considerable freedom to divorce. In classic Roman law, divorce, as well as marriage, was a private, informal transaction.(20) Before the restrictive rules of Augustus and the subsequent reform by Constantine, both divorce upon mutual consent and unilateral divorce were possible. Divorce upon mutual consent survived the reforms, the grounds for unilateral divorce were strictly limited.(21) The Christian Church has shown an aversion towards divorce from the very beginning. Initially, the Church refused to bless all second marriages because it was held that the spiritual ties created by marriage survived not only divorce but also the death of one of the spouses. Although the New Testament mentions the possibility of repudiating an adulterous wife,(22) there was no uniformity on this point in the Catholic and Orthodox worlds. The Orthodox Church accepted, under pressure from the Byzantine emperors,(23) a limited possibility for divorce and remarriage. The Catholic Church tolerated divorce and remarriage until deep into the Middle Ages. The indissolubility of marriage was declared for the first time in the 8th century. But until the Gregorian reform, there was no clear border between annulment and dissolution of marriage. Only around the 12th century did the indissolubility of marriage become really enforced. At that time, the divorce and annulment of marriage became the exclusive affairs of the Church. In the case of adultery, separation was the only option, with no possibility of remarrying. In the case of violation of the prohibited degrees of consanguinity, the marriage was null and void. This meant that it was considered never to have taken place, and the sacrament was considered never to have been given. That is why in such a case (re)marriage was possible.(24) This was more than a technicality. In the course of the Middle Ages, the prohibited degrees of consanguinity, affinity and spiritual affinity (created by baptising) were extended in such a manner(25) that most noble families were related to each other within a prohibited degree.(26) Although the priests were obliged to make a genealogical inquiry before celebrating marriage, the prohibitions were often violated.(27) Sometimes this was wilfully done to ensure the possibility of dissolving the marriage. Duby cites an illustrative letter from a 12th century knight who remarks about his prospective wife: 'Without any doubt she is related to me within the third degree. That is not close enough to stay away from her. But if I want, and if she does not suit me, I can, on the basis of this relationship, obtain a divorce.'(28) As a result, the difference between the Catholic and Orthodox canon rules on the termination of marriage was less significant than it seems. The possibility of annulling an endogamous marriage in Western Europe had almost the same practical meaning as the limited possibility of divorce in the case of adultery in Eastern Europe.

As this brief summary of the formation of medieval ecclesiastical marriage law shows, Catholic and Orthodox canon marriage law was, in spite of a formally different approach to the constitutive elements of marriage and to the admissibility of divorce, in effect very much alike. Both gave marriage a closed, strongly institutionalised character.


2. From pre-Christian law via canon unification to modern times: A helical process?


In a way, the comparison of medieval ecclesiastical marriage and divorce law with pre-Christian law and current law evokes the image of a circular movement, or better still, of a spiral. Pre-Christian family law, with its informal rules on the formation of marriage, easy divorce, tolerance towards concubinage and acceptance of illegitimate children, resembles modern family law much more than medieval law. The difference between pre-Christian and modern law is of course tremendous because we are talking about completely different societies, but still the similarities are striking. The development of marriage and divorce law from the Middle Ages to the present can be seen as the gradual return to the informality of pre-Christian times, but on a different level; thus the use of a spiral as a metaphor. The most illustrative examples of this return to informality are some radical changes introduced during the French and Russian Revolutions.

What is the place of the medieval canonical unification in the overall line of the development of family law? What were the reasons for the unification? Should it be seen as a temporary regress or a necessary step forward? There is no simple answer to these questions. It was a crucial period in the history of family law, a time of unity when there were as yet no significant differences, a kind of ius commune of family law. It was also the period in which many concepts were formed that have been dominating family law almost until the present. That is why medieval law is so often, consciously or unconsciously, used as a point of reference in debates about the modernisation of family law.(29) I think that medieval family law should certainly not be seen as a kind of degradation or regress. It perfectly suited the medieval society of the time. The political background of the formation of this law was the political power of the Church that was strong enough to introduce and to enforce uniform rules. The ideological background of the unification was the - at that time still almost undisturbed - unity of the Christian belief. Mystique and dogmatism were inherent to the society of that time. As soon as the canon concept of marriage as a sacrament had taken root, it was accepted by the population as self-evident.

The political and ideological influence of the Church may explain the fact of the unification, though not the substance of the uniform law. To explain this substance is not easy. For some innovations the background is more or less clear. To declare marriage a sacrament granted it an appropriate position in the set of values of that time. The institutionalisation of marriage, the banning of concubinage and the bastardisation of children born outside wedlock cannot be understood apart from the so-called feudal revolution: the introduction of the feudal system with the right of succession belonging to the first-born as its corner stone. Around the 11th century, the horizontal, cognate family structure of Carolingian times, in which male and female heirs were equal, was replaced by the vertical, agnate family structure, in which only the male line was important and male heirs were privileged.(30) The goal of this change was to limit the amount of heirs in order to prevent the further division of land. The restrictions of family law served the same purpose.

Other features of canon law are more difficult to explain. Upholding the requirement of free consent to marriage clearly ran against the interest of the feudal families to have as much room as possible for the arrangement of strategic marriages between the noble clans. The only explanation I can suggest lies in Christian ideology on the issue of free consent. The free will as one of the central concepts of Christian philosophy was required for the other sacraments, baptising and communion. It seems logical that marriage, once proclaimed as a sacrament, also fell under this requirement. The impossibility of repudiating a childless wife and to remarry, or to conclude endogamous marriages, also ran against the crucial needs of the feudal families, because it made it more difficult to keep the land within the clan. In this light, the - to my taste, a bit too cynical - explanation by Goody, who suggests the Church's craving for power behind these changes,(31) is not convincing. By declaring marriage to be indissoluble, the Church diminished its own possibilities of profiting from its prerogative to grant or refuse divorce. The only explanation I can suggest is that the concept of marriage as a sacrament compelled the Church to consider it to be indissoluble.

Though the background of the medieval unification leaves us with more questions than answers, one can observe that it was rather multicoloured. Economic and ideological factors were interweaving and complementing one another.


3. The medieval dogmas: Obstacles to modern person-orientated family law?


The uniformity of canon marriage and divorce law only lasted until the Reformation. From then on, the regulations of the various Protestant Churches and the secular laws of the advancing national states led to increasing divergence, although the direction of the changes was essentially the same. The end of uniformity did not mean the end of the dominance of the ecclesiastical concepts of the Middle Ages. Although the Protestant countries rejected the sacral character of marriage and the principle of its indissolubility, most of the canon heritage survived. As Glendon puts it: '[S]ecular government simply took over much of the ready-made set of the canon law.'(32) With the differentiation within the Church and the Enlightenment, ideological pluralism increased, and it became more and more difficult for the state to justify the canonical concepts it had taken over. The unity of ideology and belief, so typical for the Middle Ages, was now gone. Canonical concepts such as marriage as a monogamous union for life, the unacceptability of concubinage, the prohibition of consensual divorce and the exclusion of illegitimate children from the family structure, gradually lost their self-evidence. Nonetheless, they were upheld for a considerable time, much longer than other medieval political and religious dogmas. Subject to serious discussion for the first time during the French Revolution, they again ruled almost uncontested for a long time thereafter. They remained an inseparable part of the status quo. In the absence of a rational explanation (apart from an appeal to religion), these concepts were partly accepted as self-evident because of an unawareness that they had not always existed; they were partly seen as features of a highly developed civilisation. They only came seriously under fire towards the end of the 19th century.

One of the possible reasons for this late liberalisation of family law is the remarkable time difference between the progress of liberal ideas about public life and the progress of the same ideas about life in the private sphere. The ideas of the Enlightenment were primarily focused on the rights and freedoms of the individual as a citizen, not of the individual as a private person. The family remained part of the private domain where individualism, personal freedom and equality were acknowledged much later. As O'Donovan observes: 'Readings of the major social contract theorists from Hobbes to Rousseau confirm that the family is taken as natural, as pre-given. Marriage, foundation of family, ensures the subordination of women, which is presented as inevitable. The free individuals who contact in the social contract are male.'(33)

On the same grounds, Okin doubts the universalism of Kant's ethic. Kant's use of 'gender-neutral terms' serves, in her eyes, only to cover the fact that he did not extrapolate his conclusions to women.(34) The same applies to classical liberalism.(35) Although Locke was one of the first to defend the contractual nature of marriage, he thought it to be self-evident that women and children fell under the authority of men.(36) Only in the 19th century did Mill explicitly apply liberal ideas to women. But even he remained reticent about one of the most prominent dilemmas of that time: the admissibility of consensual divorce.(37) Feminist writers criticised Mill because his striving for female equality still mainly concerned public life. Private life and the family remained largely on the periphery of his attention.(38)

Feminist criticism of liberalism usually focused on the fact that the inequality of women was generally neglected. But when things went wrong, the family was a cage for two. Conservatism in family and private life was perhaps more to the detriment of women than of men, but it did affect men too. The man was equally deprived of the possibility of escaping a broken marriage or to legitimise children born out of wedlock.

The long-standing disregard of the family and the private sphere by liberal philosophy was part of the ideological background of the phenomenon that medieval concepts prevailed much longer in family law than in society in general. It also probably forms at least a part of the explanation for the fact that the first and most radical reforms of family law did not take place in the countries that were most influenced by classical liberal philosophy.(39)

Also illustrative of the late liberalisation of family and private life is the development of the ideas about the place of romantic love. In days gone by, the family was the domain of duties, not of feelings. Affection was desirable but not necessary. With the growth of prosperity and the change of the social function of the family, which no longer formed the basic economic unit,(40) the pressure imposed by duties diminished and more room was given to personal freedom. For the first time in history, romantic love entered the family. Before that time, the place for romantic love was normally envisaged outside the family. The courtly love of the troubadours was not directed towards one's own spouse. Tristan and Isolde, Lancelot en Guinevere were lovers, not spouses. Only in the 19th century did romantic love raise its banner within the family. The literature of that century shows a wide range of desperate conflicts between romantic love and one of the central canonical dogmas: the inadmissibility of consensual divorce. Galsworthy's Forsyte Saga, Flaubert's L'Éducation sentimentale and Tolstoy's Anna Karenina and The Living Dead are just a few well-known examples. This conflict raged for 150 years until only in the 1960s, with the acceptance of consensual divorce, love became the true basis for the family.

With individualism and personal freedom invading the family, the ideas concerning its social function and its whole image changed. The family came to be regarded as a union based on love, its primary purpose being to serve the happiness of its members. This change from a transpersonal to a personalistic approach is, to my mind, the most important transformation that has occurred in family law over the last two centuries. The essence of transpersonalism is the sacrificing of the interests of individuals to abstract values. This attitude was typical of medieval society, but in the private sphere it has dominated well into modern times. Family law was one of its last resorts. An everyday example of the endurance of transpersonalism can be found in the words of the Dutch Minister of Justice delivered in 1947, who stated that '[t]he acceptance of a monogamous marriage as the socially recognised form of cohabitation of man and woman, logically brings about that a difference must be made between children in and out of wedlock . . . Not because the legislator does not have any compassion with these indeed innocent children . . . but because the interest of society as a whole in the preservation of the respect for the institution of marriage, has priority over the individual interests of those persons'(41). The abstract interests of society as envisaged in this purely moral judgement concerning monogamy is given priority over the interests of innocent children. That is transpersonalism pur sang. This approach, prevailing until so recently, is still based on the medieval concept of marriage, although the author himself will hardly have been aware of this link.

The personalistic approach is also as old as the world itself. It is one of the cornerstones of Christian philosophy.(42) The essence of personalism is that the interests of the individual receive priority over abstract moralistic values. Because the abstract values in question were based on the old patriarchal family morals inherited from the Middle Ages, the shift to the personalistic attitude is often described as the liberalisation of family law from the influence of morality.(43) In fact, family law was merely released from the old family morals in favour of a new, person-orientated morality, based on an ideology of tolerance.(44) The moral dimension of family law is inevitable: the choice for the individual and his/her interests is the choice for a morality of another kind.(45)


4. From the medieval uniform law to the diversity of modern times: Difference in timing, resemblance in substance


The liberation from the medieval heritage took place in all European countries without exception, and is not entirely complete even today. The driving forces (notions of personal freedom, autonomy and the equality of men and women) and the direction (towards a person-orientated family law) were the same everywhere, but the process was far from being synchronised in the various countries.(46) The beginning of the 20th century witnessed an accelerating process of liberalisation of family law that had previously dragged on so slowly. From that time onwards, a distinction can be made between countries in the vanguard and those in the rearguard. The Scandinavian countries, the Soviet Union and the Eastern European countries led the way, the South European countries held up the rear, and the rest of Europe can be placed somewhere in between.(47)

The countries where a radical reform of family law took place earliest were Portugal, Scandinavia and the Soviet Union. For those who try to explain the development of family law by way of economic advancement, the composition of this group of countries must be something of a mystery. Of all places, it was in agrarian Catholic Portugal that, after the Revolution of 1910, the first radical changes to marriage law were introduced.(48) The reforms were overturned during the Salazar dictatorship and had no lasting influence in Portugal nor in that region generally. I think it is noteworthy that these reforms were brought about by a revolution that temporarily diminished the influence of the Church and the ecclesiastical concepts of family law.

Scandinavia

Another region where a far-reaching transformation of family law took place early on is Scandinavia. During the first stage of reform, approximately from 1909 until 1929, the rules regarding divorce, matrimonial property and the position of illegitimate children were substantially modernised.(49) In contrast to French, Portuguese and Soviet revolutionary law, the transformations that took place in the Scandinavian countries were not the result of a social revolution, but rather the product of a gradual, evolutionary process of liberalisation. By the end of the period mentioned above, the family law of the Scandinavian countries was significantly more modern than in most other Western European countries. Several authors have tried to explain this phenomenon. This is not made any easier by the fact that the Scandinavian countries did not have the most developed economy, nor the strongest liberal influence.(50) A possible factor could have been the relatively high level of secularism.(51) The ideological basis for the reforms was formed by the combination of two dominant ideological movements: the liberals and the social democrats.(52) Rheinstein typifies the Scandinavian legislation of that time as 'typical products of liberalism'.(53) Bradley, in his extensive work on Scandinavian Legal Culture,(54) elaborates on the impact of the ideas of equality, of liberalism and of the first wave of feminism. Although to me it seems something more than coincidence that powerful expressions of these ideas such as Ibsen's A Doll's House and The Lady from the Sea originated from that very region, these ideas were definitely not unique to Scandinavia. Noteworthy in this respect is that the ideals of the liberals and the social democrats, so divergent when it comes to politics and economics, were so much alike when it came to family policy and the emancipation of women.(55) Typical is also that in Scandinavia the liberal ideas at that time were not confined to public life but already involved private life, and the reform of the family was considered a matter of high political priority.(56) Perhaps a combination of these factors, together with a favourable political climate, made Scandinavia one of the first regions where family law was radically modernised.

The Soviet Union

Another region where early and radical transformations of family law took place was the Bolshevik Soviet Union. The modernisation of family law was considered so urgent that reforms were initiated immediately after the 1917 Revolution, in the middle of the turmoil of the civil war. In pre-Revolutionary Russia, civil marriage and divorce did not exist. People were subjected to the ecclesiastical rules of their confession. For the largest part of the Russian population this meant the canonical rules of the Orthodox Church. In 1917, the Bolsheviks introduced civil marriage as the only legal form of marriage, together with the most undemanding divorce procedure of that time, proclaimed the full legal equality of women, abolished all distinctions in the legal status of legitimate and illegitimate children, and introduced the paternity action.(57) It was as if the prison gates had been opened: during the first months after these reforms, in Moscow alone 5,000 divorce petitions were filed.(58) Later on, the reforms went even further. In 1926, informal marriage was given the status of a legal marriage. The official registration of marriage was not abolished but lost its constitutive meaning and was considered merely a formality that was not indispensable for the creation of a legal marriage.(59) The only constitutive element of marriage was, as in Roman society and in the early Middle Ages, the consensus of the parties. Marriage became a private formless transaction, as it had been in Roman law since the classical period. This, of course, had a great impact on divorce procedure. Divorce before the registration officer (the only form of divorce at that time) was considered just a formality: an optional form for the termination of both registered and unregistered marriages. Marriage came to an end not by the pronunciation of divorce by an official, but rather by the declaration of the will of one or both of the spouses. This very much resembles pre-Constantine Roman law. Neither the summoning nor the appearance of the other spouse was considered essential. If one of the spouses did not show up at the registration office, divorce was not suspended, but the absent spouse was simply informed about the termination of his or her marriage by letter (the so-called 'divorce by postcard'). This brings to mind the Roman divorce letter (repudium).

What were the reasons for these rapid and radical reforms? Why did the Bolsheviks give such priority to the reform of family law? I would suggest two main explanations. The first is that the communists considered the Church to be their most dangerous rival in their struggle for the people's minds and souls. The secularisation of family law was considered to have the highest priority because it was a crucial instrument by which to roll back the influence of the Church. The militant atheism of the Bolsheviks may account for the radical character of the reform and the barbarian methods they did not hesitate to use for its implementation.(60)

A second observation that is important here, is that the reforms were not rooted in purely communist ideology alone, but fitted in well with ideas that were shared by the whole Russian opposition movement. The origin of the ideas on which the reforms were based was not communist or even socialist, but late liberal.(61) The absence of all political freedom had made political tension in Tsarist Russia in many respects greater than in most other European countries. Family law issues such as the equality of women, civil marriage and more liberal divorce had been perceived as matters of the highest political priority ever since the end of the 19th century. That was not so much because of the substance of pre-Revolutionary legislation, which was essentially no more conservative than in most West European countries. Family law issues stood relatively high on the political agenda because in the highly polarised pre-Revolutionary Russian society, all who strived for social change, from Marxists and anarchists to liberals and Leo Tolstoy, did not only consider change in the public sphere to be of the utmost importance, but also change in the private sphere. Just like in Scandinavia, family law was one of the few issues where all opposition forces met in the middle. The ideas behind the reforms that the Bolsheviks implemented were far from exclusively communist. It is better to say that at this time the communist ideas temporarily coincided with the whole opposition movement's liberal ideas about the family and the position of women.(62)

The radical Soviet reforms of the first decades of the 20th century can be appreciated in different ways. Some scholars typify them as excesses of a revolutionary period that have limited relevance for the overall development of family law and its explanation.(63) Although certain renovations could be characterised as excessive, such as the paternity action, which allowed little opportunity to contest the action,(64) the core of the reforms form a unique example of the creation of a modern family law in a backward agrarian country. The changes came about in an undemocratic way,(65) the methods of their implementation were often inhumane, but their substance was exactly in line with the mainstream of the historical development of family law. In this respect, the Soviet Union just ran ahead of its time. Countries with the most modern family legislation reached the same level of liberalisation of family law, consisting of the deinstitutionalisation of marriage and divorce, and the abolition of the whole notion of illegitimacy, only by the end of the 20th century. It is true that when the reforms were introduced, they did not correspond with the economic and social structure of the time. But the same is true for the bulk of Bolshevik policy, and these structures changed very rapidly. Dramatic changes in the economy destroyed the traditional family structure with unprecedented speed. In next to no time, the family ceased to be the basic economic unit that it had previously been.(66) Legislation that did not work well under the new circumstances was continuously amended.(67)

The informality of pre-Christian family law is clearly discernible in the new Russian legislation. With their radical rejection of the family law concepts based on the Christian tradition, the Bolsheviks reinstated concepts that had governed family law almost 2000 years before.

Stalin's contra-reform: The Ukase of 8 July 1944

During Stalin's reign, all more or less liberal legislation was abolished. The New Economic Policy (NEP) made way for the command economy. A similar process took place in the field of family law. In 1936, abortion was declared a criminal offence. As contraception was virtually unknown in the Soviet Union, abortion was the only means of family planning. As a result of the sudden prohibition, many women relied on clandestine abortion, which cost the lives of thousands of women.

The infamous Ukase of 8 July 1944(68) radically revoked several important previous innovations of family law. Informal marriage lost its legal status. The recognition of children born outside wedlock, the establishment of paternity by the courts and even a maintenance claim on behalf of a natural child were all rendered no longer possible. Even pre-Revolutionary legislation had been less harsh in this respect. Divorce proceedings became complicated and expensive: only in the second instance were the courts entitled to grant a divorce when they found that a marriage had irretrievably broken down. Many scholars, both Russian and foreign, have tried to explain this dramatic contra-reform.(69) As in my view this explanation is essential for the proper appreciation of the reforms of the first two decades of Bolshevik rule, I will devote special attention to this problem.

Rheinstein, and in his tracks Willekens,(70) see in the Ukase a logical measure of a period of economic stabilisation that took back 'radical reforms out of tune with socio-economic structures'.(71) Even to the extent that this correlation is so compelling, if anything was 'out of tune' with the newly created economic situation and family structures, it was the Ukase of 1944, not the rules of the Family Code of 1926 that it set aside. Also, the Ukase was not a concession to 'a popular and conservative current represented by peasant tradition' that wanted to return to more conventional forms of marriage.(72) At that time, the regime was less interested than ever in the wishes of the population. Moreover, the traditional patriarchal family structure was already very much dead. From a political point of view, there could not have been a less suitable moment to roll back the reform than in the middle of the Second World War, when families were separated on an unprecedented scale and the number of children born outside wedlock increased dramatically. The purpose of the prohibition of abortion was to stimulate the birth rate. The simultaneous abolition of the possibility to establish legal relations between a father and his natural child created a completely opposite incentive. The demographic disparity created by the War left many women no other opportunity for having children than to give birth when still unmarried, but the desire that their child should have a legal father and the impossibility of receiving any maintenance made many choose for an illegal abortion.

The official propaganda of the time gave as the purpose of the Ukase the 'strengthening of the socialist family'. This slogan could not justify the Draconian legislation, however. The family did not need to be strengthened. Although divorce had become quite common, its background was not the 'relaxation of morals',(73) but the flourishing economic independence of women. The lifelong marriage of pre-Revolutionary times had given way to a modern type of 'serial' monogamy. The communist perception of relations between men and women was quite ascetic. Mutual fidelity was self-evident and adultery was considered to be 'moral degradation'. Although family law as such was lenient,(74) other social regulators exercised a firm control over sexual morality and family stability. The Komsomol, the school, the trade unions, the labour collectives and other vehicles for social control that were plenty and powerful in the totalitarian Soviet state took care of that. As statistical data show, the Ukase in fact did not have any stabilising effect at all.(75)

I cannot pretend to know the true explanation for the contra-reform. The legislative history of the act is largely unknown. Studying that dark period of Soviet history is as problematic as studying the Dark Ages. One thing is certain: the initiative did not emanate from the kitchen of the legal profession, but directly from Stalin and his close environment. One can only speculate about Stalin's precise role, as has been done about Napoleon's intervention in the drafting of the family law provisions of the Code civil.(76) Was it an utterance of Stalin's frustration concerning his second marriage to Nadezhda Allilueva, whom he, like Napoleon in the case of Josephine, could never make to 'belong to him body and soul', and who committed suicide in 1932? Perhaps his Caucasus origins, a region extremely conservative in respect of family matters, played a role. Stalin's conservatism regarding women is well known: he considered it improper for his teenage daughter to wear the 'short' pioneer skirts of that time. From a feminist point of view, it is easy to see in the Ukase the revival of the patriarchal, male ideology that the man should not be responsible for his bastard children and all the consequences should be borne by the woman alone.

Although it is very well possible that the contra-reform was initiated by Stalin or his direct environment for no other reason than personal convictions, one can also imagine objective reasons for it. The advancing totalitarian state strived to penetrate all corners of society. The economy had already been brought completely under its control. The family, not being directly linked to the economy, was the next to be subjugated. The communist state did not want to tolerate a private place where men could find refuge from its pressure.(77) Family solidarity was perceived to be a threat to the devotion to communist ideals.(78) Not concern for the stability of the family, but rather the desire to make totalitarianisation complete could be seen to underlie Stalin's Ukase. Rheinstein was partly right when writing that '[c]onservatism in matters of marriage was thus demonstrated to be not simply a survival of Christian tradition but also a desideratum of purely secular statism'.(79) To my mind, 'a survival of Christian tradition' was completely out of the question. Stalin's policies were based on strictly secular ideas derived from Marxism and theories such as those of Léon Duguit, who was very popular in the 1920s, and Auguste Comte. The only thing that resembled the Christian tradition was the attempt to re-institutionalise marriage.


Conclusion


On the basis of this brief sketch of the historical development of family law in Europe I would like to make the following suggestions:

- If we do not place the early Soviet and Portuguese reforms outside an explanatory framework as temporary excesses of a revolutionary period, it becomes clear that the first family law reforms did not take place in the countries with the most developed economies and the most democratic political regimes. The countries with the earliest and most far-reaching transformations of family law seem to have followed more or less the same pattern: the consolidation of the whole spectre of the 'left' political forces around the late-liberal ideas concerning the family and the position of women, a high level of secularisation and a radical break with the canonical concepts of marriage, divorce and illegitimacy.

- Conservatism in family law does not primarily correlate with a less developed economy, but first and foremost with the measure of abandonment of the old canonical dogmas. This abandonment was slower in countries with a strong Church influence (such as Italy, Spain, Ireland and Greece).(80) Even economically less developed East European countries (such as Moldova, Romania and Serbia) have a fairly modern family law, due to the radical break with the canonical concepts that was imposed by the communists. The axis of the difference in the modernity of family law does not lie East-West, as is the case with other parts of civil law that are more directly linked with the economy, but instead in a general North-South direction.(81)

- Looking at the history of family law in Europe, it is possible to see that ever since the Middle Ages, when canon family law was uniform, all European countries were developing in the same direction. The substance, the tendencies and the driving forces of the reform of family law were essentially the same everywhere. The only true differences are in the timing. There are no unbridgeable historical and cultural differences that make family law eternally unsuitable for harmonisation and unification. That is not to say that a difference in timing is not a serious obstacle for unification - it obviously is - but I think that the expectation is justified that further harmonisation and unification will prove to be possible in the future.



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Notes
1. Senior Research Fellow of the Molengraaff Institute for Private Law, Utrecht University, The Netherlands. Ms. Antokolskaia's research has been made possible by a fellowship of the Royal Netherlands Academy of Arts and Sciences.

2. Antokolskaia, De Hondt and Steenhoff (1999).

3. E.g., Duby (1985), Goody (1983), Glendon (1989) and Rheinstein (1972).

4. I do not intend to take sides in the discussion on the role of economic and ideological factors in the transformation of family law. It is, of course, impossible to deny a certain dependency between the modernity of family law and the level of economic development. The question is how strong and direct this dependency is and to what extent ideological and other factors serve as a link between them. I have no answer to these questions. At this point, my intention is limited to the rather positivist observation of discrepancies and correlations between these factors and the level of modernity of family law at certain points of its development.

5. The last step in the development of the rules on the formation of marriage was made at the Council of Trent in the 16th century.

6. See, for example, the letter of the Apostle Paul to Corinthians (1 Cor., 7, 1).

7. Troitskii (1995), p. 186.

8. Grubbs (1995), p. 142.

9. However, such disapproval still manifested itself until deep into the Middle Ages. Even in 1146, when the Emperor of the Holy Roman Empire, Henry II, was canonised, he was praised for his exceptionally chaste marriage life. He completely abstained from physical relations with his wife Kunigunde so that both remained virgins until their death; Duby (1985), pp. 73-74.

10. Grubbs (1995), p. 148.

11. Troitskii (1995), p. 192.

12. Neuhaus (1983), pp. 16-17.

13. Duby (1985), pp. 47-48.

14. Duby (1985), p. 197.

15. Duby (1985), p. 197, Glendon (1989), p. 25.

16. For instance, the Russian Prince Vladimir was born to his father's concubine, who was a housekeeper of his father's wife Olga. This origin did not preclude him from being accepted as a son and from inheriting the realm; Nevolin (1851), p. 312.

17. Goody (1983), p. 73.

18. For these reasons, Charlemagne did not give his daughters away in marriage, but gave them as concubines in order to limit the number of potential heirs; Duby (1985), p. 58.

19. Goody (1983), p. 77.

20. Grubbs (1995), pp. 226-227.

21. Idem, pp. 228-229.

22. Matthew 19, 8-9.

23. Of most influence in this respect was the struggle of Emperor Leo VI to have his second marriage blessed at the end of the 9th century; Troitskii (1995), p. 192.

24. Duby (1985), p. 179.

25. From the third degree in the 6th century to the seventh degree in the 12th century; Goody (1983), p. 56.

26. Dispensation was possible up to the fourth degree.

27. Idem, p. 145.

28. Duby (1985), p. 221 (my translation).

29. To my mind, this is a vulnerable point in the analysis of Willekens, who tries to explain the changes in family law by way of the changes in the social function of the family. Willekens starts his analysis from the function of the family in the agrarian societies at the beginning of the 18th century when, as in the feudal period, land was of primary economic importance. I wonder whether the function of the family in those days differed so much from the Roman society of the classical period, which was also in essence agrarian, and whether this difference could explain the informality of family law and the low level of institutionalisation of marriage.

30. Duby (1985), pp. 110-111.

31. Goody (1983), pp. 44-45, 145.

32. Glendon (1989), p. 31.

33. O'Donovan (1993), p. 88.

34. Okin (1989), p. 91.

35. See Freeman (1994), pp. 23-25.

36. In Locke's view, because in the absence of consensus between husband and wife 'the last determination (i.e., the rule) should be placed somewhere, it naturally falls to the man's share as the abler and stronger'; Locke (1970), p. 157.

37. Mill (1974), p. 33. See also the introduction to this book by W.R. Carr, p. vii.

38. O'Donovan (1985), p. 8.

39. See also Willekens (1997), p. 77.

40. Willekens (1997), pp. 80-83.

41. Asser/Wiarda (1957), pp. 496-497 (my translation; emphasis added).

42. 'The Sabbath was made for man, and not man for the Sabbath.'

43. De Ruiter (1990), pp. 195-200.

44. E.g., Shultz formulates this as follows: '[S]pecific prescriptions about right and wrong must be replaced by a new credo: tolerance of individual variations and values. In the same way, if individual fulfilment is the ultimate value, then pursuit of it justifies sacrificing such goals as permanence [of marriage]'; Shultz (1982), p. 251.

45. An example is the objective of the Swedish legislator not to give marriage any privileges above unmarried cohabitation in order not to impose any moral or ethical judgments; Agell (1998), pp. 128-129. To my mind, this objective can also be seen as the choice for another, tolerance-based morality.

46. The scope of this article forces me to skip a few centuries (although the family legislation of the French revolution and the Prussian Allgemeines Landrecht of 1794 were of great importance for the process of the modernisation of family law) and to jump to the 20th century.

47. This, of course, is a rather simplistic sketch of a more complicated situation. East-European law was not modern in all respects. Portugal was the first country where radical reform, albeit not lasting reform, took place. In some other countries, the modernity of family law differed significantly from one particular institution to another.

48. H. Cohn, The Foreign Laws of Marriage and Divorce (1937), pp. 182-184, cited by Bradley (1996), p. 10.

49. For an overview, see Bradley (1996), pp. 9-13; Schmidt (1984), p. 80.

50. See Willekens (1997), p. 87.

51. Bradley (1996), pp. 3-9.

52. Gaunt and Nystrom (1996), p. 480.

53. Rheinstein (1972), p. 154.

54. Bradley (1996).

55. Idem, p. 156.

56. Idem, p. 138.

57. Decree of 18 December 1917 'O grazhdanskom brake, detiakh. u vedenii knig aktov grazhdanskogo sosnoiania', SU RSFSR, 1917, N 1, st. 160; Decree of 19 December 1917 'O rastorzhenii braka', SU RSFSR, 1917, N 10, st. 152, 'Kodex zakonov ob aktokh grazhdanskogo sosnoiania, brachnom, semeinim i opekynskom prave', SU RSFSR, 1918, N 76/77, st. 818.

58. Genkin, Novotzkii and Rabinovich (1949), p. 419.

59. Raevich (1927), p. 426.

60. Implementation of the reforms was accompanied by terror and repression against the clergy and the religious population.

61. See also Kerblay (1996), p. 145.

62. Communist ideology, as such, did manifest itself, but did not get its own way during this period. An example is the debate about the registration of marriage. Young communists headed by the prominent feminists Inesse Armand and Alexandra Kollontay, who were granted important positions in the Bolshevik government, strived for the abolition of registration. They referred to Engels's 'Origins of the Family, Private Property and the State' and argued that marriage had to die out soon and that its temporal preservation was just a 'concession to the religious prejudice of the population'. Lenin, who on this issue represented a more moderate group, was as usual more interested in the actual political impact than in the classical notions of Marxism. He argued that Engels's writing should be understood in such a way that only the 'bourgeois family' was doomed to die out in order to make way for a new type, the 'proletarian family'. See Lenin (1939).

63. Willekens typifies these reforms as 'radical reforms out of tune with socio-economic structures'; Willekens (1997), p. 78.

64. The family law of 1918 introduced the so-called registrative establishment of paternity. Women, married women included, could until three months before the birth declare before the registration officer that a certain person was the father of their child. The putative father could contest this declaration before the court within two weeks. Failure to do so (in time) was treated as recognition.

65. The opinion of the population at large was never examined. My guess is that perhaps about 5% of the population (90% of whom consisted of the illiterate agrarian population) would have supported the reform. This would have been no different, however, with the reforms of Peter the Great.

66. The termination of the New Economic Policy by the end of the 1920s abolished all small family businesses in the urban regions. The collectivisation at the beginning of the 1930s completely destroyed the agrarian family household. The family was no longer the only source of income for dependent family members. In 1922, only 25% of the total working force was female, in 1940 this number had risen to 39%, and in 1945 (due to the War) it was 56%; see Kerblay (1996), p. 145. The family ceased to be an important economic unit. Single women who earned an income from employment and alimony from the fathers of their children were more or less able to raise their children alone. Although social security was in an inadequate state, women equally benefited from it.

67. For instance, the Family Code of 1918 left the pre-Revolutionary separate property regime of marital property intact. This caused problems under the new liberal divorce law, because women without an income of their own had no claim to a share of family property. For this reason, the Code of 1926 introduced a marital property regime of limited community that gave these women proper protection.

68. Vedomosti Verhovnogo Soveta SSSR, 1944, N 37.

69. In Russia, Stalin's family legislation is widely perceived as just another excess of totalitarianism. Even contemporaries experienced it as extremely unjust. Although no one at that time could say a word against it, lawyers generally tried to soften its consequences. Not being allowed to grant maintenance against the natural father towards his illegitimate child on the basis of his paternity, they granted it instead on the basis of the factual upbringing of the child by the natural father. Factual upbringing was, at that time, a distinct ground for maintenance obligations. After Stalin's death, abortion was again legalised. The Fundamental Principles of 1968 not only restored the possibility of establishing the paternity of the natural father, but did so with retroactive effect. At the same time, divorce law was liberalised.

70. Rheinstein (1972), pp. 231-243; Willekens (1997), p. 78.

71. Willekens (1997), p. 78.

72. See Kerblay (1996), p. 145.

73. Rheinstein (1972), p. 231.

74. As Rheinstein, analysing early Roman divorce law of the republican period, rightly points out, in reality there is no clear correlation between the restrictiveness of divorce law and the stability of the family.

75. The divorce rate in 1938-39 was 4.8 per thousand. In 1958-59 it was the same. Not only did this rate not decrease while the Ukase of 1944 was in force, but it increased to 5.3 per thousand instead; Willekens and Scherbov (1995), p. 199.

76. See Glendon (1989), p. 89.

77. A distinguished lawyer of that time wrote: '[T]he socialist State reserves for itself wide latitude for direct and active infringement into family relationships. . . . The state denies the qualification of relations between sexes as individual, intimate, and of no interest for State and society. . . . It dictates, determines rules to guarantee the interests of the collective, to force individuals to fulfil their duties towards the collective'; Sverdlov (1941), p. 58.

78. The hero and martyr of that time was a young pioneer killed by his family because he betrayed his father as a kulak.

79. Rheinstein (1972), p. 236.

80. The Netherlands serves as another example: this country with a modern economy had until recently in several respects a very outdated family law, which is generally attributed to the strong influence of the Christian political parties.

81. The general line of development of family law in East Europe is exactly the same as in the rest of the continent. Even the temporary contra-reform under Stalin is not completely without precedent. The Nazis just did not have enough time to implement their ideas about family law (see Glendon (1989), p. 175). The concept of 'socialist' family law is, in my view, not more than a remnant of the propaganda of the Soviet era (see Antokolskaia (1996), p. 640).





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Literature


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Antokolskaia, M.V., W.A. de Hondt and G.J.W. Steenhoff, Een zoektocht naar Europees familierecht (preadvies voor de Nederlandse Vereniging voor Rechtsvergelijking) (Deventer: Kluwer, 1999).

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Burguière, A., C. Klapisch-Zuber, M. Segalen and O. Zonabend (eds.), A History of the Family. Vol. I. Distant Worlds, Ancient Worlds (Cambridge: Polity Press, 1996).

De Ruiter, J., 'Drie trends in het familierecht', RM Themis 5 (1990), pp. 194-208.

Duby, G., Ridder, vrouw en priester, 2nd edn. (Amsterdam: H.J.W. Becht, 1985).

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Gaunt, D. and L. Nystrom, 'The Scandinavian Model', in: A. Burguière, C. Klapisch-Zuber, M. Segalen and O. Zonabend (eds.), A History of the Family. Vol. II. The Impact of Modernity (Cambridge: Polity Press, 1996), pp. 476-501.

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Mill, J.S., The Subjection of Women (Cambridge, Mass./London: M.I.T. Press, 1974).

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Raevich, S.I., 'Brarnoe i semeinoe pravo', in: D. Magerovskii, Osnovi sovetskogo prava, (Moskou/Leningrad: Gos. Inzdatel'stvo, 1927), pp. 420-429.

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See also "history of divorce timeline"

Benefits of post-divorce shared parenting and the situation in the Netherlands, Belgium and Germany

It's regrettable that Canada and its provinces are way behind progressive thinking of other countries such as Denmark, Australia, Italy, when it comes to family law. Canada and other countries are still living in the "Middle Ages" and its existing laws do considerable harm to children and parents. We can learn a great deal from other countries that have adopted equal or shared parenting and reduce harm toward children and their parents.

Child and educational psychologist, Dr. Peter Tromp, presents brief summaries by country on the present state of Shared Parenting Legislation in the countries of the European Union.

1. Italy now has a mix of joint legal custody and elements of joint physical custody since a law change that came into effect on 16th March 2006.

2. France has a mix of joint legal custody and elements of joint physical custody (Residence Alternee) that came into effect in 2002. An estimated 15% of French children of divorce are now growing up in shared parenting and alternating residence arrangements.

3. Belgium on the initiative of its Socialist Party now has implemented presumptive 50/50 joint physical custody legislation (effective bi-location of the children) after parental separation in both its House of Commons and Senate which came into effect when it was formally published by the Belgian Federal Government on the 4th of September 2006. The new Belgian federal law on bi-location will be discussed at more length in my presentation below.

4. In the Netherlands joint legal custody was implemented in family law by the Dutch Parliament in 1996 making joint legal custody the standard for post-divorce parental authority. And with the new Dutch Law on Continued Parenting after Separation (no. 30145), that went into effect on 1 January 2009, this was followed by the introduction in Dutch family law of the basic principle of the equality of both parents and the presumption of equal parenting (both before and after divorce or separation, and regardless of whether the parents were previously married or not). The new Dutch family law also introduces a strong incentive for separating parents to come up with a mutually agreed parenting plan during the separation and divorce proceedings.

The new Dutch law reform will be discussed at more length in my presentation below. Considering however the poor Dutch tradition on effective family law reform, the mainly decorative value of Dutch family court orders for fathers and the Dutch family court’s tradition of legislating from the bench, it still remains to be seen what this new Dutch law will bring in day-to-day family court practises for divorcing and separating parents and their children.

5. Norway still has sole physical custody but its Minister of Justice has already announced (in 2007) a complete family law review based on the principles of presumptive joint physical custody. Up until now, however, this has not yet materialized.

6. Ireland has, since the advent of Parental Equality (the Irish lobby group associated with Liam O’Gogain) circa. 1993, been considering the possibility of a change to laws of joint physical custody – which gives some gauge of the lack of seriousness with which such laws are being considered.

7. In Germany, a professional court intervention model called the Cochem model, based on principles of shared parenting, is gathering strength. This German Cochem court practice model will be discussed at more length in my presentation below. In this model parents are only allowed access to the family court for parental separation and divorce after they have themselves also filed a shared post-divorce parenting plan agreed by and between both of them. The German federal minister of Justice has previously (February 2006) announced future family law reform in which “elements of the Cochem model of multi-disciplinary court orchestrated intervention” are to be integrated into the German family law. Which elements, however, are as of yet unknown. This family law reform at the federal level has, therefore, not yet materialized.

8. Malta also has some form of shared parenting presumption according to Maltese family rights organizations. As of yet, however, it is unclear what is the exact nature of their shared parenting presumption.

9. Spain introduced a new shared parenting law in mid-2005 which is regarded as wholly inadequate by Spanish family rights lobbyists. Government officials and professionals on their own initiative are attempting to introduce policies reintegrating alienated children with their alienated parents and there is a vigorous movement for change.

10. The UK under the present Labour government has, as of yet, no effective shared parenting laws in existence. In his simultaneous presentation at the Drama Conference based on a study of the British Law Commission’s research papers Robert Whiston found that court-ordered shared parenting was commonly practiced in the south part of England in the second half of the last century until it was eliminated by the Children Act 1989 (Whiston, 2009a). At present, the oppositional Conservative Party – which is expected to win the next 2009 elections – has adopted Equal Parenting Family Law Reform as part of its election program. Also some judicially-motivated efforts to introduce norms of shared parenting do exist, in spite of the family-hostile parameters of the present law and fiscal framework.

11. Luxembourg is also said to have introduced post-divorce joint physical custody legislation.

Other jurisdictions

- Australia passed a Shared Parenting Bill in the Senate in 2006 of the window dressing sort. Australia in fact is a good example of the sort of jurisdiction that repeatedly passing pretend laws that are having no real effects on keeping both parents involved in children’s lives after parental separation. And each time it is claimed that the present law proposal will be better than the last, while children of separation continue to grow up in a family-hostile environment. The same pattern can be observed in EU-countries like the UK, the Netherlands and Spain.

- In the USA several states have implemented shared parenting legislation.

6. Recent developments in family law and family courts in Belgium, the Netherlands and Germany.

Family law reform in Belgium

Belgium already had a presumption of joint legal custody in its family law since the nineties of the last century.

Since September 2006 the Belgian federal law on “bi-location” or “alternating residence” also came into effect after having passed both houses in the Belgian federal parliament. This new law additionally introduced a presumption of joint physical custody, care and residency as the norm or preferred post-divorce parenting arrangement to be ordered by the Belgian family courts. Furthermore immediate unilateral court-access for either of the divorced or separated parents in requesting for additional reinforcement orders if needed was introduced.

Contrary to common belief the Belgian family law reform of September 2006 however did not introduce a 50/50 joint physical care and residency arrangement as the fixed end-result for all divorcing or separating Belgian parents. Instead it introduced a presumption of dual location or shared residency which by law should be taken into serious consideration and thorough investigation with priority in each individual case by the Belgian family courts and judges on the request of either one of the divorcing parents separately.

In the situation where both separating parents consensually forward shared residency, care and access proposals between the two of them in the divorce and separation proceedings, the law puts the Belgian family courts and judges under the obligation to accept those mutually consented proposals as leading in the court-orders to be subsequently imposed in the divorce and separation proceedings.
In effect the wishes with regard to the post-divorce residency, care and access arrangements of either parent parties involved were thus again acknowledged and reinstated at the core of Belgian family law and family court proceedings regarding physical custody, residency and care. By law Belgian family court judges were endowed with the obligation to explicitly specify in their court-orders their decisions and provisions with regard to the imposed post-divorce residence and care arrangements in writing if they were to deviate from the presumptive and preferred bi-location or shared parenting arrangement in their court-orders.

These new Belgian law provisions have put shared parenting at the forefront of the family courts decision-making regarding the care, access and residency of the children involved, while the need and obligation imposed by law on the Belgian family courts and judges to extensively specify in writing in their imposed court-orders as to why a shared parenting or bi-location order was not imposed, opens the possibility for appeal of the courts decisions and motivations.

A further additional but underestimated new element of the Belgian family law reform is the introduction of immediate or priority access to the courts and judges on the request of either one of the parties one-sidedly. This can be activated unilaterally and individually – without the need of being represented by a lawyer at the court-session requested for – for additional reinforcement orders of the court when the court-ordered parenting arrangements were not sufficiently complied with by the other parent and when there were complaints about the other parent with regard to abiding by the specific parenting arrangements laid down by the judge in the original case residency, care and access order(s) given.

Although the law, as a federal national framework, has been in effect for only 2,5 years – and so it is too early to evaluate its effects thoroughly – first impressions are that it has contributed strongly to the Kantian appeasement between divorcing and separating parents in Belgium. This contributes to both the leading civil and family law principle of appeasement between conflicting parties as well as to the best interest of the children involved who now flourish far better under the care of the appeased but separated parents.

Family law reform in the Netherlands

In 1996 joint legal custody (in Dutch: gezamenlijk gezag) was implemented by law by the Dutch Parliament making joint legal custody the standard for post-divorce parenting in the Netherlands to oblige with EVRM Article 8 on the Right to Family Life.

However, shortly after the introduction of the law, the family courts in conjunction with the Dutch High Court neutralised the Dutch Parliament’s specific intent for a law by to keep both parents involved in children’s lives.

Perversely, the judiciary undermined Parliament’s sovereignty by stating that joint legal custody could be awarded but that it did not automatically entitle fathers to contact and access arrangements.

Over the past few years the Dutch Parliament has taken several new initiatives to introduce joint physical custody and equal parenting as the legal presumption for post-divorce parenting arrangements.

The first attempt was the legal initiative on administrative divorce (divorce without the use of a court and representing lawyers) and continued parenting, No. 29676 by parliament in 2004 (Luchtenveld, 2004), better known as the Luchtenveld-proposal [5]. It passed the Dutch House of Commons in the winter of 2005 only to be left stranded in the Dutch Senate in the summer of 2006. This however was mainly caused by the “Administrative Divorce” part of the law being contradictory to lawyers’ interests, which hit on heavy resistance with the Dutch judiciary[6].
Another new attempt for family law reform, better known as the “Donner-proposal”, was then made on the initiative of the Ministry of Justice with the Law on Continued Parenting after Separation (No. 30145). This law while it passed in the Dutch House of Commons in June 2006, on the initiative of the Dutch Socialist Party was unexpectedly altered by a constitutional majority amendment introducing equal parenting as the presumption for post-divorce parenting. On November 25th 2008 this law passed the Dutch Senate. It went into effect two days ago on January 1st 2009.

This new law has the following main positive features with regard to shared parenting arrangements and the reinforcement of parenting orders by the Dutch family courts:

• It introduces and aims to guarantee in Dutch family law the basic principle of equality for both parents and the presumption of equal parenting both before and after divorce or separation, and regardless of whether the parents were previously married or not.

• It introduces a strong incentive for parents to come up with a mutually agreed parenting plan during the separation and divorce proceedings.

• Adding new but complicated reinforcement possibilities to the toolbox of options available to judges to ensure compliance with court-ordered parenting arrangements.

However, the law also has some distinctly negative features for shared parenting as it once again re-opens the possibilities for the family courts to deviate from the Parliamentary default presumption of joint legal custody. This could give rise to new ways and new reasons for a court to exclude a father from parenting his children. For a more detailed account of the features in the new Dutch family law on parenting after divorce however I further refer to the Appendix A with this presentation.

Reforms in Germany – The Cochem court-practice model

Several years ago a family court judge Jurgen Rudolph – based in the German regional family court of Cochem was confronted time and again with two equally capable parents. Both were forced to fight each other – almost to the death – in adversarial court proceedings. His radical solution will be detailed later in this paper.

Also in Germany a post-divorce presumption of joint legal custody was already in effect in family law since 1998, when several years ago the family court judge Jurgen Rudolph (Rudolph, 2007) – residing at the German regional family court of the city and district of Cochem – in his courtroom bench was confronted with capable parents fighting each other with the help of their lawyers (and to the detriment of their children) over post-divorce arrangements concerning the residency, care and access over their children and demanding from him as the judge to decide in favour of either of them. Parents and lawyers from both sides seemed to be only involved in painting their adversarial ‘opponents’ as black and incapable as possible during the divorce proceedings in the family court.

The position family court Judge Jurgen Rudolph took in this was that he considered post-divorce physical custody arrangements between principally fit and capable parents not to be a standard-decision for the family court and himself as the family judge to make and decide on by default over the heads of either one of the parents. On the basis of the lawfully existing care-obligation in Germany for both parents to care for their children the making of physical custody arrangements over their children had by default to be considered primarily as a matter of responsibility for both the divorcing parents themselves to decide on in the first place.

Resulting from the in-fights between parents and their lawyers taking place in adversarial divorce proceedings, the regional family court of Cochem then experimented by changing its family court practises. In the new family court practice divorcing parents were strongly encouraged by the court to first come up themselves with a mutually and consensually agreed “parenting plan” for the residency, care and access to and over their children, as a mandatory precondition before being able to enter and finalise their divorce settlements in the Cochem family court.

As the parents now needed to come up with a mutually agreed parenting plan or parenting arrangement proposal, this mandatory demand of the court both not only resulted in a reinstatement of the equal level playing field and cooperation between the parents looking for divorce (instead of the previous court practises magnifying the differences and conflicts between the parents). But equally important, it also lead to a complete practise overhaul within the professions involved in the divorce proceedings in the family court.

Instead of aggravating the parents in their conflict, all professions, i.e. lawyers, social workers, youth welfare workers, etc., began cooperating with each other in order to offer mediatory and other support services and help to the divorcing parents who were in demand of support in making the parenting plan needed in order to finalise their divorce proceedings. In time, the cooperation between professionals evolved from cooperation on the individual case levels to a more structured network cooperation of the involved professions around the Cochem family court.

These changes in Cochem court practises and the resulting changes in practises by the surrounding professionals in the meantime have earned wide recognition in Germany and are nationally referred to in Germany as the Cochem court practises (in German: Cochemer Praxis) or the Cochem model (in German: Cochemer Modell). They are now also taken into evaluation and consideration in a future planned reform of family law by the German federal ministry of justice in Berlin.

Comparing Belgium, the Netherlands and Germany

The separate developments in these three European countries are interesting because of their convergence. In Belgium and the Netherlands developments have started top-down so to speak from the national or federal political-legislational level with the introduction of a new family law creating a national framework and new guidelines for the functioning of the family courts. While in Germany these same developments started not top-down but bottom-up from the family courts themselves experimenting with less adversarial proceedings and court practises regarding post-divorce residency, care and access arrangements and orders.

Of the law reforms in these three European countries the Belgian law reform on bi-location is to be regarded as the most clear-cut in its choice for shared parenting. The family law developments in the three European countries discussed however all share in their emphasis a distinctive shift towards implementing the concept of shared parenting and restoring an equal level playing field between both divorcing parents in family law and/or family court practises as opposed to the previous mother-only single parenting presumption that has dominated family law and family court practises in the countries of the European Union for so long.

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