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 5: The financial consequences of divorce in a European perspective

Jens M. Scherpe

Subjects: law - academic, european law, family law

Extract

This chapter deals with the substantive law of the financial consequences of divorce. These consequences can (but do not have to) include a division of property, certain periodical or lump sum payments, a sharing or division of pension rights (and similar) and the allocation of the use of the marital home and other assets. No ‘top-down’ European family law exists in relation to any of these, as the European Union has no competence to regulate such matters, and no cases on the financial consequences of divorce have yet been decided by the European Court of Human Rights. This chapter therefore is a purely comparative one. The financial consequences of divorce are regulated in very different ways amongst the European jurisdictions. Even the very basic understanding of the nature and structure of the financial consequences of divorce appears to be fundamentally different. The most obvious contrast here is between the common law jurisdictions of England and Wales, Northern Ireland and Ireland and the continental European jurisdictions of the civilian tradition. Only the latter know statutory matrimonial property regimes which play a pivotal role in the financial consequences of divorce. Without doubt, the division/allocation of (matrimonial and other) property upon divorce is also central to the common law jurisdictions but it is embedded in a wholly different system and approach; it is part of a holistic exercise which considers all the financial consequences of divorce at the same time.

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