Harmonisation of substantive family law in Europe: myths and reality [2010] CFLQ 397

Since the Commission on European Family Law was established in 2001, harmonisation of substantive family law in Europe has been the subject of heated debate. The impossibility and undesirability of harmonising family law was long taken for granted. This scepticism was rooted in what was referred to as the ‘cultural constraints argument', which states that differences between national family laws are embedded in unique and cherished national cultural heritages, that this cultural and historical diversity is unbridgeable and that, therefore, family laws do not converge spontaneously and cannot be harmonised deliberately. Only since the late 1990s has the attitude towards harmonisation of family law gradually become more positive. This article addresses three issues. First, the merits of the basic assumptions of the cultural constraints argument - the embedment of family law in a unique, homogeneous and unchangeable national culture - will be analysed on the basis of the development of family law in Europe since the Enlightenment. Secondly, attention will be devoted to existing European family law - an incoherent body of binding rules developed ad hoc through international conventions, EU legislation and European Court of Human Rights (ECtHR) and European Court of Justice (ECJ) case law. Last but not least, the harmonisation activities of the CEFL aimed at developing a more coherent body of European family law will be discussed using the Principles on Divorce as an example. In conclusion some speculations regarding the future outlook for harmonisation of family law in Europe will be made.