European Family Law Volume III

European Family Law Volume III

Family Law in a European Perspective

Edited by Jens M. Scherpe

This four-volume set maps the emerging European family law. It is intended to serve as a resource for anyone interested in this area of law, as well as a basis for teaching on comparative and international family law courses. The first volume examines the impact of institutions and organisations on European family law. While there is no European body that could actually legislate definitively on family law, there are some institutions that have a direct impact on European family law, while the impact of others is more indirect. In the second volume the changing concept of ‘family’ and challenges for domestic family law are analysed in 21 different jurisdictions, in 16 chapters. All contributions look at ‘horizontal’ family law (the law concerning the relationships between adults), ‘vertical’ family law (the law concerning the relationships of adults and children) as well an ‘individual’ family law (the law on names and gender identity). In the third volume the contributions take a comparative view on specific issues from a European perspective. The fourth volume, which works as a stand-alone monograph, draws on all of the previous chapters, and discusses the present and future of European family law. It establishes areas where ‘institutional’ European family law exists – in the sense that there are binding legal rules for all European jurisdictions – for example, as a result of a decision by the European Court of Human Rights. It also identifies areas where, as a result of common legal and social developments for ‘horizontal’, ‘vertical’ and ‘individual’ family law, an ‘organic’ European family law is emerging and suggests how family laws in Europe are going to develop in the future.

Chapter 2: Divorce law in a European perspective

Edited by Jens M. Scherpe

Subjects: law - academic, european law, family law

Extract

Even a simple glance at how divorce grounds are formally labelled in various European jurisdictions reveals quite some diversity. This picture is confirmed by the account of divorce laws in Europe provided in the 2003 Commission on European Family Law (CEFL) National Reports. This chapter gives an overview of recent developments in divorce laws in Europe, with the main focus being on analysing divorce grounds from both a formal and a functional perspective. In addition, some insight is given into the issue of administrative divorce, which is currently attracting growing interest from various legislatures. This chapter is divided into three parts following this introduction. Part 2 discusses possible reasons for the current diversity of divorce laws in Europe, along with a brief historical introduction and a deliberation on the impact of European human rights instruments on divorce law in Europe. Part 3 provides a close-up analysis, in two sections, of recent developments in divorce law. The first of these two sections examines several jurisdictions (England and Wales, France, Germany, Italy, Ireland and Malta) and their interpretations of ‘irretrievable breakdown of marriage’, while the second section focuses on several other jurisdictions (Sweden, Russia, Norway, Spain and Portugal) and a model law (the CEFL Principles on Divorce) that moves beyond the concept of irretrievable breakdown. Part 4 discusses and scrutinises the grounds for divorce currently co-existing in Europe, while Part 5 examines an impending challenge to the law of divorce procedure in the form of the administrative divorce.

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