European Family Law Volume II
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European Family Law Volume II

The Changing Concept of ‘Family’ and Challenges for Domestic Family Law

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.
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Chapter 4: The changing concept of ‘family’ and challenges for family law in Germany

Dieter Martiny


German family law is codified mainly in the Civil Code (Bürgerliches Gesetzbuch). In recent years there has been no comprehensive reform of the law in this area, however there are constant changes in statutes, judicial practice and administrative procedures. Following the principle of non-discrimination in accordance with human rights and fundamental rights under German constitutional law and European human rights law, several piecemeal reforms have strengthened or modified the rules in individual fields of law. German constitutional law guarantees among other rights and institutions the family and the welfare of children (article 6 of the Basic Law; Grundgesetz), human dignity and personal freedom (articles 1 and 2 of the Basic Law) and non-discrimination (article 3 of the Basic Law). However, European-based human rights are also having a growing impact, particularly article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life. The pressure of social change can be felt in many fields of German family law. One of the main trends is the growing recognition of a diversity of lifestyles and family forms. The number of persons in non-marital cohabitation is increasing. The socio-economic situation of spouses is changing and is influencing matrimonial property and maintenance law in turn. There is growing acceptance of divorce as an enduring phenomenon in society, with focus being placed on its consequences and the supervision of the process of separation.

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