The evolution of family law : a comparative analysis between the European and American models of law

Abstract

This thesis examines in a comparative perspective the ongoing evolution of family law in the context of harmonization, which is taking place in Europe and the US. It initially identifies the new emerging family structures which are gradually transforming the nature of family law. The constitutionalisation of family law over the past decades has occurred through the increased recognition of FHR, and has eventually resulted in the harmonization of the contemporary understanding of the concepts of 'Marriage' and 'Family'. It also identifies the existence of wide legal diversity surrounding sensitive issues such as divorce and associated consequences. It discusses the difficulties that arise in cross-border international situations associated with legal pluralism, and which quite often give rise to legal uncertainty and unexpected altered rights and obligations. Moreover, it seeks to demonstrate that the need of harmonization of family law to counter balance the difficulties associated with divergent legal systems, has been equally felt in Europe and America. In view of the existing divergent cultural and legislative divides, unification of substantive family law was proved difficult to achieve. Thus, European and American scholars and legislators, have embarked on separate academic initiatives and legislative projects, in an attempt to harmonize selected sensitive issues of family law, which commonly arise in cross-border situations. Finally, this academic exercise highlights the different approaches adopted for the harmonization of divorce law, and examines the level of harmonization achieved so far. The academics opted for the non-binding elaboration of uniform legal principles and model laws for states to adopt voluntarily, while the European legislators opted for the unification of family law through binding separate PIL regulations on selected issues. As a result, harmonization of family law is taking place gradually in a rather fragmented and frenzied manner, with the deliberate exclusion of controversial issues from the process of harmonization.