HARMONISATION OF FAMILY LAW IN EUROPE: A HISTORICAL PERSPECTIVE EUROPEAN FAMILY LAW SERIES Published by the Organising Committee of the Commission on European Family Law Prof. Katharina Boele-Woelki (Utrecht) Prof. Frédérique Ferrand (Lyon) Dr. Cristina González Beilfuss (Barcelona) Prof. Maarit Jänterä-Jareborg (Uppsala) Prof. Nigel Lowe (Cardiff) Prof. Dieter Martiny (Frankfurt/Oder) Prof. Walter Pintens (Leuven) HARMONISATION OF FAMILY LAW IN EUROPE: A HISTORICAL PERSPECTIVE A tale of two millennia MASHA ANTOKOLSKAIA Antwerpen – Oxford Distribution for the UK: Distribution for North America: Hart Publishing Gaunt Inc. Salter’s Boat Yard Gaunt Building Folly Bridge 3011 Gulf Drive Abingdon Road Holmes Beach Oxford OX1 4LB Florida 34217-2199 UK USA Tel: + 44 1865 24 55 33 Tel: + 1 941 778 5211 Fax: + 44 1865 79 48 82 Fax: + 1 941 778 5252 Distribution for Switzerland and Distribution for other countries: Germany: Intersentia Publishers Stämpfli Verlag AG Groenstraat 31 Wölflistrasse 1 BE-2640 Mortsel CH-3001 Bern Belgium Switzerland Tel: + 32 3 680 15 50 Tel: + 41 (0)31 300 63 18 Fax: + 32 3 658 71 21 Fax: + 41 (0)31 300 66 88 Harmonisation of Family Law in Europe: A Historical Perspective Masha Antokolskaia © 2006 Intersentia Antwerpen – Oxford http://www.intersentia.com © 2006 M.V. Antokolskaia ISBN-10: 90-5095-576-2 ISBN-13: 978-90-5095-576-8 D/2006/7849/62 NUR 822 and 828 No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher. For my mother ACKNOWLEDGEMENTS This research has been made possible by a fellowship from the Royal Netherlands Academy of Arts and Sciences. I am deeply indebted to the Royal Academy for supporting and financing this research. I am also deeply indebted to Katharina Boele- Woelki for granting me the opportunity to resume the thread of my academic activities in The Netherlands at the Molengraaff Instituut of Private Law of the University of Utrecht. I am very grateful to her for initiating, hosting and supporting this research, and for five years of most pleasant, fruitful and educative collaboration. A research covering such a time span and such a range of jurisdictions would be neither possible nor sensible without the invaluable help of a network of academic colleagues. I am very grateful to all those who assisted me, in particular to the colleagues who read large parts of the manuscript of this book and made helpful remarks and suggestions. Errors and conclusions are mine. Special thanks to Hans Ankum of the University of Amsterdam for commenting on the Chapter on Roman law, as well as Jan Hallebeek and Lieke Coenraad of the Vrije Universiteit Amsterdam and Chris Coppens of the University of Nijmegen for their comment on the historical chapters of this book. I owe a special dept to Katharina Boele-Woelki of the University of Utrecht, Dieter Martiny of the Europa Universität Viadrina (Frankfurt/Oder, Germany), Bente Braat of the University of Utrecht, Frédérique Ferrand of the Université Jean Moulin (Leon, France), David Bradley of the London School of Economics, Maarit Jänterä-Jareborg of the Uppsala University and Tone Sverdrup of the University of Oslo, for their remarks on the sections concerning German, French, English and Nordic law. I also owe much to the thought provoking discussions with Marie-Thérèse Meulders-Klein, University of Louvain de Neuve, Belgium, and with David Bradley. To my husband and colleague Arno Akkermans, who contributed to the coming into being of this book in many different ways, I owe more than words can say. I am also very grateful to the faculty of law of the Vrije Universiteit Amsterdam and to my colleagues there for enabling me to complete this project after I had gotten a chair there. I would like to thank Scott Curry-Sumner for revising my English and my student-assistant Naomi Spalter for helping me with the final technical touches and for her wonderful illustrations. Finally, I would like to thank my mother for her emotional support and my cat Murzik for being a most perfect anti-stress ball during the years that this research was carried out. Masha Antokolskaia Intersentia vii PREFACE The idea of this study first crossed my mind when I was asked to contribute to a report on the perspectives of the harmonisation of family law in Europe for the Netherlands Comparative Law Association.1 I was challenged by the idea of exploring the main objection to family law harmonisation, the so-called ‘cultural constraints argument’. This argument suggests that it is principally impossible to harmonise family law because the family laws of the different European countries are deeply embedded in their unique national cultures and history. The cultural constraints argument gives rise to two main questions. The first question, whether family law has converged in the past and currently converges in the present, is in principle a historical-empirical one. The other question, whether convergence and the deliberate harmonisation of family law are possible at all, also seems empirical at first sight, but an analysis of the debate on this issue will reveal that the essence of the discord is on the theoretical, rather than the empirical level. The main purpose of this book is to suggest answers to these two questions through the analysis of convergence and divergence tendencies and the historical instances of deliberate harmonisation in the field of marriage, unmarried cohabitation, divorce, the position of extramarital children, and matrimonial property, in the majority of Europe throughout the last two millennia. In spite of the long span of time and the large geographical and institutional areas covered, this book has a rather limited scope. It does not deal with most of the issues involved in the contemporary debate surrounding the deliberate harmonisation of family law in Europe; such as whether such harmonisation is necessary or desirable, what methods should be employed to achieve it, which fields should be chosen, whether the EU has competence to harmonise family law, and so on. Save a single exception, neither does this book deal with the activities of the Commission on European Family Law (CEFL). The research for this book had already started before the CEFL was established in 2001. My inspiration for this research became all the stronger when, in 2001, I became a member of the CEFL Expert Group. This made me a ‘participating observer’ and allowed me to look into the ‘harmonisation kitchen’. However, this study neither follows the patterns of the CEFL’s work, nor comments on it. While the CEFL is primarily focussed on drafting activities – elaborating Principles of European Family 1 ANTOKOLSKAIA, M., DE HONDT, W., STEENHOFF, G., Naar een Europees Familierecht (1999). Intersentia ix Preface Law – the research presented in this book is entirely devoted to historical and theoretical issues. x Intersentia TABLE OF CONTENTS ACKNOWLEDGEMENTS ............................................vii PREFACE .......................................................... ix LIST OF ABBREVIATIONS .........................................xxvii PART I. INTRODUCTION CHAPTER 1. INTRODUCTION ....................................................3 1.1. The Harmonisation of Family Law and the Cultural Constraints Argument .....................................................3 1.2. Trying to Avoid Selection Bias ....................................9 1.2.1. Choice of Historical Periods. Why Two Millennia? ...........9 1.2.2. Choice of Fields of Family Law ..........................10 1.2.3. Choice of Jurisdictions .................................10 1.3. Method of Comparative Research ................................11 1.3.1. Law in Context, Law in the Books and Law in Action ........11 1.3.2. Combining Comparative and Historical Research ..........12 1.4. General Outline of this Book ....................................13 CHAPTER 2. THE CULTURAL CONSTRAINTS ARGUMENT, CONVERGENCE, AND HARMONISATION: THEORETICAL ASPECTS ....................15 2.1. Introduction ..................................................15 2.2. The Danger of Talking at Cross Purposes. The Conceptual Framework of this Book ........................................15 2.2.1. The Concepts of Convergence, Harmonisation, and Unification as Used in this Book .........................16 Harmonisation embraces unification .................16 Intersentia xi Table of Contents Different forms of harmonisation and the definition of convergence ....................................17 Top-down harmonisation ...........................17 Deliberate bottom-up harmonisation .................18 Spontaneous bottom-up harmonisation (convergence) . 21 2.2.2. Convergence and Evolution .............................23 2.3. Relativism, Universalism and Pluralism: Harmonisation as Part of the ‘Unfinished Modernity Project’ .............................27 2.3.1. Integrative and Contrastive Comparative Law ..............27 Looking for sameness or difference? ..................27 Historical roots of the integrative and contrastive approaches in comparative law ......................28 Philosophical roots of the integrative and the contrastive approach ...............................29 Harmonisation of law as a part of the ‘unfinished Modernity project’ .................................32 Post-modernist and Modernity arguments in the current comparative law debates .....................33 2.3.2. The Fallacy of the Extremes: The Need to Search for a Middle Way ..........................................36