Transnational and Comparative Family Law: Harmonization and Implementation

By Marylin Johnson Raisch

Marylin Johnson Raisch is the Librarian for International and Foreign Law at the John Wolff International and Comparative Law Library of the Georgetown Law Center. She received her J.D. from Tulane University School of Law (1980) with work both in civil and common law courses as well as international law and Roman law. She holds degrees in English literature from Smith College (B.A. magna cum laude, 1973) and St. Hugh’s College, Oxford (M.Litt., 1978). She received her M.L.S. degree from Columbia University School of Library Service in 1988 and has worked as a law librarian for fifteen years, the past ten of which were at Columbia University School of Law as International and Foreign Law Librarian. Marylin has served as moderator or panelist in several continuing education programs at the annual meetings of the American Association of Law Libraries on such topics as collection development in international and foreign law (2006), effective quick reference in international and foreign law, foreign law in English, and Russian law, and a 2005 workshop on European Union law and well as an updated EUweb research guide in 2006. She has also presented talks on web access to foreign and international materials for the International Association of Law Libraries, has co-directed one of a series of special four-day institutes on “Training the Next Generation” of international and foreign law librarians, and has edited (with Roberta I. Shaffer) the resulting volume of proceedings, Transnational Legal Transactions (Oceana, 1995). She is the author of several articles, reviews, and web guides on international and foreign legal research.

Published January 2007
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Introduction

“Transnational” (or “transactional”) law is becoming a frequent phenomenon in the practice of law and now occupies a prominent place in the study of international and comparative law. Both academic and practitioner-oriented information sources point to ways to locate and connect national laws with treaties and regimes of harmonization; however, commercial and procedural rules have been, in general, easier to locate than substantive and harmonized law in the family law area. This guide points researchers to significant electronic and print sources in transnational and comparative family law. For a general guide to the major international conventions in this area, including aspects of the rights of the child, please consult sources cited in Raisch, Marylin J., International Family Law: A Selective Resource Guide (hereinafter referred to as Raisch, ILF Guide); the purpose of this complementary guide is to indicate how these international conventions are implemented in selected jurisdictions and an indication of how to locate substantive national law under these same international regimes.

1. Major international agreements by sponsor or region

(for an arrangement by topic, see Raisch, ILF Guide)

In the family law area, treaties which apply within a regional legal regime are more likely to have a supra-national enforcement mechanism or court (such as the European Union or the OAS or lately the emerging African Union regime). Other major instruments are interpreted through an evolving jurisprudence based on decisions of national courts in the several states party to that particular treaty.

The official web site lists all treaties sponsored by the Hague Conference, and segregates all the treaties in the family law area as pasted below to preserve the sub-headings:

International Protection of Children

International Protection of Adults

Relations between (Former) Spouses

Wills, Trusts and Estates

Status of Hague family law treaties

It is important to check the status tables for all member states of the Conference; while most Hague treaties are in force, some are not, and several have attracted few signatories or ratifications.

An excellent feature of this set of charts, presented in Excel format or PDF, is a set of regional and organizational charts of ratification indicating the interrelationship between efforts at harmonizing the rules for local family law issues undertaken by the Hague Conference and those undertaken by other non-governmental or regional governmental organizations devoted to private and commercial law harmonization, such as Unidroit and the trade regimes of Europe and Latin America.

Official citations and print sources linked in part at the site may be supplemented by reference to the collection of texts and travaux préparatoires: Hague Conference on Private International Law, Actes et documents de la … session / Conférence de La Haye de droit international privé. La Haye: Bureau permanent de la Conférence, 1961- , and by reference to Hague Conference on Private International Law, Recueil des conventions (1951-1996) = Collection of conventions (1951-1996), ed. Permanent Bureau of the Conference, [The Hague]: Hague Conference on Private International Law; Cambridge, MA: distributed by Kluwer Law International, [1997?].

The United Nations (citations follow the online version style of The Bluebook: A Uniform System of Citation, 18th ed. Cambridge, MA: Harvard Law Review Association et al., 2005), and includes some conventions of the International Labour Organization, (ILO) as reported to the U.N.

Main site for family-related human rights: Office for the UN High Commissioner of Human Rights, International Human Rights Instruments – Dates of entry into force given if different from year treaty was opened for signature.

Rights of women

Rights of the Child

Marriage

Nationality, Statelessness, Asylum and Refugees

Council of Europe

Searches: sex equality, maternity, mothers and children, workers with family responsibilities, housing.

U.S. Department of State: Private International Law (PIL) and Family Law

Family Law

International Support Enforcement

Other PIL Convention of Note (U.S. is not a party; not under active consideration for ratification) United Nations Convention on International Family Support (1956) [Text not yet available on line]

General Information on Children and Family from the US State Department

The Organization of American States, http://www.oas.org/main/english/ (note: most conventions are linked under the treaties and conventions section of the OAS site without specific URLs)

Inter-American Children’s Institute (under OAS issues) contains information and documents on the implementation in OAS member states of the U.N. Convention on the Rights of the Child

Inter-American Commission of Women has sponsored the following conventions:

  • Convention on the Nationality of Women (Montevideo, Uruguay, 1933)
  • Inter-American Convention on the Granting of Civil Rights to Women (Bogotá, Colombia, 1948)
  • Inter-American Convention on the Granting of Political Rights of Women (Bogotá, Colombia, 1948)
  • Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (Belém do Pará, Brazil, 1994)

Office of International Law, Private International Law, lists the following information for treaties in the family law area stating as follows:

“The CIDIP [Spanish acronym for Inter-American Specialized Conferences on Private International Law, a series of topical conferences (author’s note)] on process has produced several Inter-American Conventions and other instruments on family law, including the following: Inter-American Convention on the Domicile of natural persons in private international law; Inter-American Convention on conflicts of laws concerning the adoption of minors; Inter-American Convention on the international return of children; Inter-American Convention on support obligations; and, Inter-American Convention on the international traffic in minors.”

Inter-American Convention on Domicile of Natural Persons in Private International Law.

Inter-American Convention on Conflict of Laws concerning the Adoption of Minors.

Inter-American Convention on the International Return of Children.

Inter-American Convention on Support Obligations.

Inter-American Convention on International Traffic in Minors.

The African Union

The Role of Religious and Socialist Legal Regimes in the Middle East and East Asian Jurisdictions

In some jurisdictions, many areas of family law, particularly marriage, divorce, inheritance and succession, and personal status, such as minority, are governed at the national level by religiously-influenced legal regimes, either optionally for a given religious community or as indicated in the constitution of the jurisdiction. For a basic presentation of these concepts and selected sources in print or online, researchers may wish to consult Raisch, Marylin J., Religious Legal Systems.

2. Civil and common law approaches

Civil and common law approaches to family law

Civil law is a general term for legal systems derived from ancient Roman law, as received or later interpreted by the builders of national systems of codified law in the late eighteenth through the nineteenth centuries C.E. in Europe. Influenced by medieval interpretations of the Roman tradition, and through use by the church and Germanic tribes, the civil law tradition evolved in a complex way alongside customary laws. Principally in its modernized and codified form, the tradition continued to spread and to be received by other jurisdictions of the world during the period of European colonization. Two main characteristics emerge from a simplistic description of the legal methodology characteristic of civil law:

Characteristics of civil law may be described as follows:

“…the parameters of the civil law are limited to areas of private law and do not extend to public law, commercial law, or penal law, …”

and

“the analysis of case law … [here referring to Louisiana but where it has much in common with other jurisdictions] does not equate to adoption of the common law concept of stare decisis, where a single case dictates the outcome of a later dispute, but may be perfectly consistent with the doctrine of jurisprudence constante, where a case may be used to discern a pattern that may aid in interpretation.” [italics mine] Kathryn Venturatos Lorio, The Louisiana Civil Law Tradition: Archaic or Prophetic in the Twenty-First Century? 63 La. L. Rev. 1, 6 (2002)

Some common effects of civil law systems on the family are to create a regime of community property for marriage (creating property rights equal and of the whole for partners regarding property deemed to belong to the marital community), forced heirship (mandates a portion of an estate to certain heirs, commonly children up to a certain age), and aspects of filiation or adoption (including rules about inheritance for natural children).

Characteristics of a common law system: “Common law is the legal tradition which evolved in England from the eleventh century onwards. Its principles appear for the most part in reported judgments, usually of the higher courts, in relation to specific fact situations arising in disputes which courts have adjudicated. The common law is usually much more detailed in its prescriptions than the civil law.” William Tetley, Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), 60 La. L. Rev 677, 684 (2000)

Some effects of common law systems within family law include similar core concepts shared with the civil law through the adoption in medieval England of canon law and equity principles to govern the application of law to the family. Marital property, legitimacy, and the evolving notion of the family and its contractual aspects regarding marriage proper are areas where common law originally vested greater rights in the male head of household.

Greater autonomy and contractual rights in marriage as well as inheritance may have opened the door more readily to non-traditional partnerships.

  • A core title is the serial The international survey of family law, The Hague; Boston : M. Nijhoff; Cambridge, MA, U.S.A : Sold and distributed in the U.S.A. and Canada by Kluwer Law International, 1996- current.
  • For an excellent comparative overview see Arlette Gautier, Legal Regulation of Marital Relations: An Historical and Comparative Approach, 19 Int’l J.L. Pol’y & Fam. 47 (2005). (Includes several historical and current tables, such as one for “Changes in certain legal effects of marriage in 142 countries from 1938-2003…”
  • W. Piutens, International encyclopaedia of laws: family and succession law. The Hague: Kluwer Law International, 1997– (looseleaf).

For exact citations to national laws or specific code articles in the basic sources listed with below with online access, please consult Thomas H. Reynolds, Arturo A. Flores, Foreign law guide: current sources of codes and basic legislation in jurisdictions of the world [internet][Berkeley, Calif.?: University of California], 2000-current. This is an excellent, fee-based web subscription database. In addition to general family law it covers citations and sources for abortion, adoption, guardianship, inheritance, and marriage. As with any one source, check the official legislative sites of jurisdictions for updates.

For additional and updated electronic sources of laws consult the World Legal Information Institute, and its family law category (for selected jurisdictions).

Newly revived and updated is the Lexadin World Law Guide, now current through October 2006, (as of this writing).

The Library of Congress maintains the Global Legal Information Network (GLIN), with English summaries for jurisdictions that it covers (selective);

The best related resource is the family law entry for each issue of the new free Global Legal Monitor, and the only reliable, free guide to updated judicial interpretations of family law, tracking latest developments, that we found on the web.

Afghanistan

  • Constitution and civil code, but caution: according to the Foreign Law Guide cited above, “the 1977 Civil Code specifically abrogates the Marriage law of 17 Asad 1350 (1971)” but it is still listed!

Albania

Argentina

Australia

Austria

Bangladesh

Bolivia

Bosnia and Herzegovina

Brazil

Cambodia

Canada

China

Colombia

Democratic Republic of the Congo

Costa Rica

Ethiopia

Finland

France

Germany

  • Constitution
  • Same-sex partnerships (in German)
  • For a fairly exhaustive list of civil code sections on family law and German implementation of European and Hague conventions, consult the Foreign Law Guide cited above. See English translations of maintenance and obligations at the German Law Archive.
  • The German Federal Ministry of Justice has attempted a full English translation of the entire civil code, and it may be corrected to appear again at http://www.gesetze-im-internet.de/englisch_bgb/, but is not available at present.

India

Indonesia

Iran

Iraq

Israel

Italy

Japan

Kenya

Korea (South)

Lebanon

Liberia

Mexico

Netherlands

Nigeria

Pakistan

Philippines

Poland

  • Constitution
  • Civil code re family in Polish only (some commercial areas in English via Lexadin).

Russian Federation

Saudi Arabia

South Africa

Spain

Sudan

Thailand

Turkey

United Kingdom

3.2 Same Sex Marriage: A Selected Bibliography

International Gay and Lesbian Rights Commission

Marriage recognized and rights given as such (information from Global Legal Monitor (cited above) and Wikipedia (note that Wikipedia, whatever its other faults, produces a more unbiased and usable result on this topic than Google, where political sites abound)

  • The Netherlands
  • Belgium (but same gender partners may not adopt)
  • Canada
  • Spain
  • Massachusetts
  • South Africa (beginning December 1st, 2006)

Civil Unions, domestic partnerships, and registered partnerships (with varying benefits and rights) are available in:

  • Andorra,
  • Argentina,
  • Brazil,
  • Croatia,
  • Czech Republic,
  • Denmark,
  • Finland,
  • France,
  • Germany,
  • Iceland,
  • Israel,
  • Luxembourg,
  • Mexico,
  • New Zealand,
  • Norway,
  • Portugal,
  • Slovenia,
  • Sweden,
  • Switzerland,
  • United Kingdom;
  • the Australian states of Tasmania and Western Australia,
  • U.S. states of California, Connecticut, Hawaii, Maine, New Jersey, and Vermont; and the U.S. District of Columbia (Washington, DC)

OECD and UN voluntarily distinguish between same-sex and opposite-sex marriages and does not offer them the same benefits. However, the World Bank does recognize domestic partnerships. For example, the WHO.

Also useful: Human Rights Watch, Non-Discrimination in Civil Marriage: Perspectives from International Human Rights Law and Practice.

Sex Laws Worldwide

4. A selection of relevant articles and books

These recent books, as well as articles from English language legal reviews, and in particular the source journals listed below, are examples of fruitful sources of information on international and comparative family law:

Inheritance and succession

  • Valerie Bennett, Ginger Faulk, Anna Kovina & Tatjana Eres And Edited By Ginger Faulk, Report: Inheritance Law In Uganda: The Plight Of Widows And Children, 7 Geo. J. Gender & L. 451 2006).
  • Kris Bulcroft & Phyllis Johnson, A Cross-National Study of the Laws of Succession and Inheritance: Implications for Family Dynamics 2 J. L. Fam. Stud. 1 (2000).
  • Tamar Ezer, Report: Inheritance Law In Tanzania: The Impoverishment Of Windows And Daughters, 7 Geo. J. Gender & L. 599 (2006).
  • Kathryn Venturatos Lorio The Changing Concept of Family and its Effect on Louisiana Succession Law, 63 La. L. Rev. 1161 (2003).

Marriage and marital rights

  • Jennifer Brown, Rural Women’s Land Rights In Java, Indonesia: Strengthened By Family Law, But Weakened By Land Registration, 12 Pac. Rim L. & Pol’y 631 (2003).
  • Mi-Kyung Cho, Korea: The 1990 Family Law Reform And The Improvement Of The Status Of Women, 33 U. of Louisville J. of Fam. L. 431 (1995).
  • Renee Giovarelli, Customary Law, Household Distribution Of Wealth, And Women’s Rights To Land And Property, 4 Seattle J. Soc. Just. 801(2006).
  • Mary Ann Glendon., Inga Markovits, 1990 Survey Of Books Relating To The Law: [subjects covered:] Law And Society: Family Traits and The Transformation Of Family Law: State, Law And Family In The United States And Western Europe 88 Mich. L. Rev. 1734 (1990).
  • Barbara E. Graham-Siegenthaler, Principles Of Marriage Recognition Applied To Same-Sex Marriage Recognition In Switzerland And Europe, 32 Creighton L. Rev. 121 (1998).

Children’s issues

  • International child law / Trevor Buck. London ; Portland, Or. : Cavendish, 2005.
  • Jurisprudence on the rights of the child / Cynthia Price Cohen. Ardsley, NY : Transnational Publishers, 2005.
  • Eliminating corporal punishment : a human rights imperative for Europe’s children. Strasbourg : Council of Europe Publishing, 2005.
  • Children’s health and children’s rights / edited by Michael Freeman. Leiden; Boston: Martinus Nijhoff Publishers, 2006.

Religious law and legal theory

  • Family & court : legal culture and modernity in late Ottoman Palestine / Iris Agmon. Syracuse, N.Y.: Syracuse University Press, 2006.
  • Ralph C. Brashie, Successions And Donations: A Symposium: Protecting the Child From Disinheritance: Must Louisiana Stand Alone? 57 La. L. Rev. 1 (1996).
  • Marriage, sex, and family in Judaism / edited by Michael J. Broyde and Michael Ausubel. Lanham : Rowman & Littlefield Publishers, c2005.
  • Kathryn Venturatos Lorio , The Romanist Tradition In Louisiana: Legislation, Jurisprudence, And Doctrine: A Symposium: Roman Sources and Constitutional Mandates: The Alpha and Omega of Louisiana Laws on Concubinage and Natural Children, 56 La. L. Rev. 317 (1995).
  • Mary F. Radford, 2000, , The Inheritance Rights of Women Under Jewish and Islamic Law, 23 B.C. Int’l & Comp. L. Rev. 135 (2000).
  • Archana Sridhar, The Conflict Between Communal Religious Freedom and Women’s Equality: A Proposal for Reform of the Hindu Succession Act of 1956, 20 Berkeley J. Int’l L. 555 (2002).