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 4: The future of European family law?

Jens M. Scherpe

Subjects: law - academic, european law, family law


This volume has identified areas in which European family law exists, either as ‘institutional’ or ‘organic’ (or a combination of both), while at the same time showing the continuing diversity of the family laws of Europe. To me that is not a contradiction. There is room for diversity within the common European family law principles, some of which have been identified in this chapter as either existing or emerging. There are a few emerging themes across European jurisdictions. Behind some of them the ECtHR and the European Union (and to a certain extent national constitutional courts) and thus institutions are the main driving forces, particularly with regard to gender equality and non-discrimination (especially regarding gender and sexual orientation); others are the result of an organic growth of national family laws. Much of the discourse around the changing family laws is, perhaps of necessity, rights-based and focuses on the individual. There is also a growing emphasis on the autonomy of the individual and a withdrawal of the state (for example from the regulation of the substance of marriage and divorce), allowing the parties greater freedom to regulate their own financial and other relationships.

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