The Present and Future of European Family Law

The Present and Future of European Family Law

Jens M. Scherpe

The Present and Future of European Family Law explores the essence of European family law – and what its future may be. It compares and analyses existing laws and court decisions, identifies trends in legislation and jurisprudence, and also forecasts (and in some cases proposes) future developments. It establishes that while there is, at present, no comprehensive European family law, elements of an ‘institutional European family law’ have been created through decisions by the European Court on Human Rights and by the Court of Justice of the European Union as well as other EU instruments. At the same time an ‘organic European family law’ is beginning to emerge. The laws in many European jurisdictions have developed similarly and have ‘grown together’, not only as a result of the aforementioned institutional pressures, but also as a result of societal developments, and comparable reactions to medical and societal advances and changes. Hence there already is a body of institutional and organic European family law, and it will continue to grow.

Chapter 2: Institutional European family law

Jens M. Scherpe

Subjects: law - academic, european law, family law

Extract

The contributions in Volume I of this book set discuss the impact of institutions and organisations on European family law. As is outlined there, most of these institutions cannot claim to have a direct impact on European family law as they do not have the competence to do so. But as the chapters in Volume I also show, the indirect impact of these institutions is often very significant. However, there are, of course, some institutions, particularly the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), that have a direct impact on national family laws through their jurisprudence, simply because their decisions are binding on the Contracting/Member States. The chapter by Dagmar Coester-Waltjen in Volume I of this book set expertly outlines the significant impact that decisions of the ECtHR have had on the family laws of the Contracting States, and Geert de Baere and Kathleen Gutman have done the same for the CJEU (and indeed the European Union more generally) in the same volume, so this need not be repeated here in detail. It goes without saying that when one of these courts passes a decision, the content of that decision is not only binding on the Contracting/Member State or States it directly involves, but it also sets legal standards that the other Contracting or Member States will be held to.

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