Empowering Private Autonomy as a Means to Navigate the Patchwork of EU Regulations on Family Law

Summary

SETTING THE SCENE

Demographic developments and trends in Western society have resulted in a radical change in terms of how people shape their personal lives. In recent history, there has been no period in which there have been as many singleperson households as there are now. According to data from Eurostat, these households accounted for almost one-third of the private households in the 28 Member-States of the EU in 2016. Marriage rates generally declined, while at the same time divorce rates increased. Further, informal couple relationships have gained popularity among EU inhabitants. In particular, the proportion of children born outside marriage has increased over the years. The EU average centres around 40%, but there are various patterns for individual countries. In Denmark, Estonia, France, Iceland, the Netherlands, Norway, Portugal, Slovenia and Sweden, around or over 50% of children are born outside of marriage, with particularly high rates in Iceland (70%). In Greece, by contrast, less than 10% of children are born outside marriage The total fertility rate in Europe dropped from 2.7 children in 1950 to 1.6 live births per woman in 2017. Even though many of these changes have been observed across Europe, there nevertheless remain considerable differences between individual countries.

These figures are the result of complex interactions of societal, economic and technological developments influencing how society operates and how people make decisions on lifestyles, relationships and parenthood. These changes challenge the law, especially since the law has historically been focused on marriage, leaving little room for new ways of arranging family life.

This chapter examines the way in which the law reacts to these trends across the different European countries and what this might imply for future legal developments. Currently, there are numerous family law models organising the different types of relationships, ranging from models facilitating only marriage for opposite-sex couples to systems that accommodate almost all forms of couple relationships in domestic family law. This clearly has implications for couples in cross-border situations, which are the focus of attention in this chapter.