FAMILY LAW and FAMILY VALUES Oñati International Series in Law and Society
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FAMILY LAW AND FAMILY VALUES Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW General Editors William L F Felstiner Johannes Feest Board of General Editors Rosemary Hunter, Griffiths University, Australia Carlos Lugo, Hostos Law School, Puerto Rico David Nelken, Macerata University, Italy Jacek Kurczewski, Warsaw University, Poland Marie Claire Foblets, Leuven University, Belgium Roderick Macdonald, McGill University, Canada Titles in this Series Social Dynamics of Crime and Control: New Theories for a World in Transition edited by Susannah Karstedt and Kai Bussmann Criminal Policy in Transition edited by Andrew Rutherford and Penny Green Making Law for Families edited by Mavis Maclean Poverty and the Law edited by Peter Robson and Asbjørn Kjønstad Adapting Legal Cultures edited by Johannes Feest and David Nelken Rethinking Law Society and Governance: Foucault's Bequest edited by Gary Wickham and George Pavlich Rules and Networks edited by Richard Appelbaum, Bill Felstiner and Volkmar Gessner Women in the World's Legal Professions edited by Ulrike Schultz and Gisela Shaw Healing the Wounds edited by Marie-Claire Foblets and Trutz von Trotha Imaginary Boundaries of Justice edited by Ronnie Lippens Family Law and Family Values Edited by Mavis Maclean Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW OXFORD AND PORTLAND, OREGON 2005 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213–3644 USA © Oñati IISL 2005 Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 WEBSITE: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1–84113–547–X (cloth) ISBN 1–84113–548–8 (paper) Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by Biddles Ltd, www.biddles.co.uk ACKNOWLEDGEMENTS The International Institute for the Sociology of Law in Oñati has enabled this group of scholars who share an interest in family law and family poli- cy, but come from a variety of academic disciplines and countries, to meet, to argue and to develop their ideas over almost a decade. We are grateful for this opportunity and proud to present our third volume of essays. This follows on from our first volume, Family Law and Family Policy in the New Europe, published in 1997, which looked at the development of fam- ily law in a period of rapid transition in Eastern Europe when norms and values were re-examined and a great deal of legislative activity was taking place. This led us in our second volume, Making Law for Families, pub- lished in 2000, to look closely at the law-making process, with which some of us had become closely involved. Looking at this process and at the strug- gle of law reformers to respond to changing family forms has brought us full circle to look again at the purposes and values underlying family law, and at the relationship between ‘Family Law and Family Values’. We are particularly grateful to Malen Gordoa for her impeccable organ- isation of the meeting and to Jenny Dix for her editing skills. CONTENTS Acknowledgements v Contributors ix Introduction 1 MAVIS MACLEAN Part I Framing Family Law 1 Personal Obligations JOHN EEKELAAR 9 2 Basic Values and Family Law in Recent Judgments of the Federal Constitutional Court of Germany WOLFGANG VOEGELI 27 3 Family Values, Friendship Values: Opposition or Continuity? MALGORZATA FUSZARA and JACEK KURCZEWSKI 45 4 The Changing Context for the Obligation to Care and to Earn JANE LEWIS 59 Part II Regulating New Forms of Relationship Between Adults and Children 5 Changing Ways, New Technologies and the Devaluation of the Genetic Connection to Children JULIE SHAPIRO 81 6 Can Co-Parenting be Enforced? Family Law Reform and Family Life in France LAURA CARDIA VONÈCHE and BENOIT BASTARD 95 7 Supporting Conflicted Post-Divorce Parenting KATRIN MUELLER-JOHNSON 107 8 Litigation in the Shadow of Mediation: Supporting Children in Sweden JOHANNA SCHIRATZKI 123 9 Changing Commitments: A Study of Close Kin after Divorce in England CAROL SMART 137 Part III Regulating New Forms of Relationships Between Adults 10 Targeting the Exclusionary Impact of Family Law LISA GLENNON 157 11 Registered Partnerships for Same-Sex Couples in Switzerland: Constructing a New Model of Family Relationships MICHELLE COTTIER 181 viii Contents 12 Same-Sex Relationships in Italy VALERIA MAZZOTTA 201 13 Cohabitation: The Ideological Debate in Spain TERESA PICONTÓ NOVALES 221 Part IV. A Regulating the Relationships Between Adult Children and Elderly Parents 14 Maintenance of the Aged by their Adult Children: an Adequate Legal Institution? JEAN VAN HOUTTE and JEF BREDA 243 15 Obligations of Grown-Up Children to their Elderly Parents: Bulgarian Legislation and Practice VELINA TODOROVA 257 Part IV. B Harmonisation of Law and Diversity: the Fit Between Family Law and Family Values 16 Ethnicity and Expectations Concerning Family Law and Family Values in Bulgaria STEFKA NAOUMOVA 277 17 Family Values and the Harmonisation of Family Law MASHA ANTOKOLSKAIA 295 18 Family Law and Family Values in Portugal MARIA JOÃO ROMÃO CARREIRO VAZ TOMÉ 311 CONTRIBUTORS Masha Antokolskaia taught private law at the Moscow State Law Academy from 1989 to 1998 and from 1993 to 1995 was a member of the drafting team elaborating the New Russian Family Code (in force since 1996). From 1998, Dr Antokolskaia was a research fellow at the Molengraaff Institute of Private Law, University of Utrecht, studying Perspectives for the Harmonisation of Family Law in Europe. She is now Professor of Family Law at the Vrije University, Amsterdam and is a member of the Commis- sion on European Family Law. Benoit Bastard is Directeur de Recherche at the Centre de Sociologie des Organisations, Centre National de la Recherche Scientifique, Paris. Jef Breda assists Professor van Houtte at the University of Antwerp (Universitaire Faculteiten Sint-Ignatius Antwerpen). Laura Cardia Vonèche is a Senior Researcher at the Institute for Public Health, University of Geneva. Michelle Cottier is a research assistant and PhD student at the Faculty of Law at the University of Basel, Switzerland. She is a former student of the Oñati Masters Programme in the Sociology of Law. Her current research interests are transsexualism and the law, same-sex partnerships, secrecy in adoption, child protection and juvenile penal law. John Eekelaar FBA is a Fellow of Pembroke College, Oxford, and Reader in Law at the University of Oxford. Malgorzata Fuszara teaches at the Institute for Applied Social Studies at the University of Warsaw. She is a Board Member of the IISL, Oñati. Lisa Glennon is a Lecturer in Law at Queen’s University, Belfast. Her main research interest is family law, in particular the legal definition of the family in the light of contemporary societal trends, the legal regulation of gender and sexuality, and the distribution of property and income on rela- tionship breakdown. Jacek Kurczewski is Professor of Sociology of Custom and Law at the University of Warsaw. From 1991 to 1993 he was Deputy Speaker and member of the Polish Parliament, and from 1997 to 1998 he was Director of the International Institute for Sociology of Law in Oñati, Spain. He is the author of Conflict and ‘Solidarnosc’ (Warsaw, 1981), Resurrection of Rights in Poland (Oxford, 1993), Deputies and Public Opinion (Warsaw, 1999) and co-editor of Corruption in Social Life (Warsaw, 2000). x Contributors Jane Lewis is Professor of Social Policy at the London School of Economics. Her most recent book is The End of Marriage? Individualism and Intimate Relations (Cheltenham, Edward Elgar, 2001). Mavis Maclean CBE is Director of the Oxford Centre for Family Law and Policy in the Department of Social Policy and Social Work, University of Oxford, and a Senior Research Fellow in the Faculty of Law. She is former President of the RCSL, a Fellow of the IISL, and Academic Adviser to the Department for Constitutional Affairs. Valeria Mazzotta is a lawyer practising in civil and family law, and assistant to Professor Sesta in the Department of Private and Family Law, University of Bologna. She is a co-founding member of the Observatory on Family Law, District of Treviso. Her special interests are ‘extra legal’ relationships and new trends in family law. Katrin Mueller-Johnson is a graduate of the Free University of Berlin and Oxford University. She is currently a PhD student at the Department of Human Development at Cornell University and an international associate of the Oxford Centre for Family Law and Policy. Her current research focuses on two distinct areas: the facilitation of post-divorce parental contact through child contact centres, and the suggestibility of vulnerable witnesses, such as children and the elderly. On completion of her PhD she will be taking up a post at the Institute of Criminology, Cambridge University. Stefka Naoumova is a Professor of Law at the Institute for State and Law, University of Sofia. Teresa Picontó Novales teaches at the University of Zaragoza in Spain. She has published a number of books about family law and family policies. These include La Protección de la Infancia: Aspectos Sociales y Juridicos (Zaragoza, Egido, 1996) and En las Fronteras del Derecho: Estudio de Casos y Reflexiones Generales (Madrid, Dykinson, 2000). Johanna Schiratzki is an Associate Professor in the Faculty of Law, Stockholm University. She was a visiting fellow of the Centre for Socio- Legal Studies, Wolfson College, Oxford in 2000 and is now Director of the Stockholm University Institute of Social Civil Law.