Lecture 1
Who is included in the family?
Who is included in your family?
Why did you include some people and not others?
What is a “family”?
● Mother, father, sister, bother
● Nieces, cousins, grandparents (extended family)
● Limited in the legal sense of the concept family
○ We may include people in our family even though the law doesn’t
○ Having lived with someone and you regard that person as part of
the family
○ Raised by someone who is not legally part of your family but for you
is (no legal bond)
● It can have a personal meaning
● Legal meaning
● Religious meaning
● Symbolic meaning
● Political meaning
● It can vary from person to person
Why are these issues necessary?
● Because the law needs to know who to gives rights, benefits and
obligations to
● Why is this legal meaning necessary
○ Concept of taxes
○ If married → joint taxes and filing benefits together
○ In order to gain access to do so
■ One needs to know if they're married and this is a family law
concept
○ Concept of immigrations is also an example
○ Functionalism, formalism, idealism, policy-driven
Notions of Family
1. Bromley's Family Law
● Nuclear family
● Husband and wide or two persons living together in a manner similar to
spouses
● Parents living with children
● Brothers, sisters or others related by blood or marriage
● If there were people who were not included in this definition but on your
piece of paper
○ You will feel the denial of rights given to your family
,Issues of Family law:
● Marriage
● Divorce
● Unmarried cohabitation
● Names: surnames and first names
● Parentage: maternity and paternity
● Parental responsibility
● Child support: maintenance
● Matrimonial property law
● Inheritance Law
● Immigration
○ Public law concept
○ Uses family law concept in order to give grounds to immigration
rights
Which societal trend?
● Societal trend = Unequal rights of women (Western world showed an
equalization of women rights)
○ Family law deals with issues and trends
○ How do we deal with a woman who has given up her career to take
care of her children during a marriage
○ If that marriage is terminated and hasn’t had a career and little
opportunity how can she support herself?
● Societal trend = increase in divorce
○ Across the EU there is an increase of marriages ending in divorce
○ Increase in the need to deal with children whose parents are
divorcing
○ Contentious divorces = cause huge trauma for children
● Societal trend = bisexuality, gay, and alternative forms of sexual
orientation and gender (more acceptance)
○ Criminalizing certain areas
○ Removing certain protections offered to homosexual couples
○ Equalization of these
● Societal trend = increase of people giving birth to children outside of
marriage
○ A trend that the law can’t deny
Summary of trends in family law
1.Rise in births outside marriage
2.Custody awards are becoming gender neutral
3.Co-parenting
4.Status of children within family law
5.Same-sex couples in Europe: more rights in more countries
,6.Alternative dispute resolution - non-confrontational approach to family
problems
Definitions of Family - conceptual
1. A family is a married, civil partnered or cohabiting couple with or without
children, or a lone parent, with at least one child, who live at the same
address
2. A family is a group of people who are related to each other, especially
parents and their children
a. Blood relatives
b. Group of relatives with the same name
In 2014 the US Census Bureau began including same-sex marriages in their
counts of families. Prior to this, they were counted as cohabiting partners and
thus not considered to form a family
Family law = definition
● Legal regulation of adult relationships and parent-child relationships,
together with the financial aspects of such relationships
● Dutch: personen- en familierecht
● English: the law of persons and family law
● “Regardless of whether globalization is to be applauded or condemned, it
has had the undeniable effect of bringing more people and cultures
together, the result for the family law practitioner is a world of new and
challenging legal issues as well as new possibilities prompted by the cross
fertilization of legal ideas” - D. Blair & M. Weiner, Family Law in the World
Community
Comparative Family Law International Family Law
1. Focuses on developments with 1. Entails the rules for
its great variety of family law cross-border family relations on
systems the one hand and
2. Comprises a general, instructive 2. The body of international and
and pointed comparison of the (European) instruments and
American and European Family decisions of supranational
law systems and eventually take courts, which regulate family
into account - as far as this has relationships, on the other
been possible - al family law
systems in the world
Legislative framework
National Level - every country
- Legislation: constitution, civil code and statute
- Case law
, - Regional level - European Union / Intern - American
Human Rights
- Convention for the Protection of Human Rights and Fundamental
Freedoms
- Case Law - the practical application of Article 8 thereof developed by the
European Court of Human Rights
- Regulation 2201/2003 - few definitions regarding parental responsibility and
the rules of jurisdiction
International Level
- Cross border family law / private international law
Global Level
- United Nations - UN convention on the Rights of the Child (UNCRC) /
human rights treaty which sets out the civil, political, economic, social,
health and cultural rights of children
- Hague Convention of May 29 1993 on Protection of Children and
Co-operation in Respect of Intercountry Adoption (Hague Adoption
Convention)
The Role of the Public Policy
● A doctrine, which addresses the principles typical for certain country or
region that underpin the operation of the legal system
● Affects the whole population
● It concerns values, that change and evolve with the time
● The law in general is most effective when it corresponds the general social
norms
European convention on Human Rights
● Convention for the Protection of Human Rights and Fundamental
Freedoms
● Opened for signature in Rome on 4 November 1950 and came into force in
1953
● The first instrument to give effect to certain of the rights state in the
Universal Declaration of Human Rights and make them binding
Articles to be studied
Article 8 - Right to respect for private and family life
● Article 8 ECHR
● Right to respect for private and family life
○ 1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
○ 2. There shall be no interference by a public authority with the
xcept such as is in accordance with the law
exercise of this right e
and is necessary in a democratic society in the interests of national
security, public safety or the economic wellbeing of the country, for
Who is included in the family?
Who is included in your family?
Why did you include some people and not others?
What is a “family”?
● Mother, father, sister, bother
● Nieces, cousins, grandparents (extended family)
● Limited in the legal sense of the concept family
○ We may include people in our family even though the law doesn’t
○ Having lived with someone and you regard that person as part of
the family
○ Raised by someone who is not legally part of your family but for you
is (no legal bond)
● It can have a personal meaning
● Legal meaning
● Religious meaning
● Symbolic meaning
● Political meaning
● It can vary from person to person
Why are these issues necessary?
● Because the law needs to know who to gives rights, benefits and
obligations to
● Why is this legal meaning necessary
○ Concept of taxes
○ If married → joint taxes and filing benefits together
○ In order to gain access to do so
■ One needs to know if they're married and this is a family law
concept
○ Concept of immigrations is also an example
○ Functionalism, formalism, idealism, policy-driven
Notions of Family
1. Bromley's Family Law
● Nuclear family
● Husband and wide or two persons living together in a manner similar to
spouses
● Parents living with children
● Brothers, sisters or others related by blood or marriage
● If there were people who were not included in this definition but on your
piece of paper
○ You will feel the denial of rights given to your family
,Issues of Family law:
● Marriage
● Divorce
● Unmarried cohabitation
● Names: surnames and first names
● Parentage: maternity and paternity
● Parental responsibility
● Child support: maintenance
● Matrimonial property law
● Inheritance Law
● Immigration
○ Public law concept
○ Uses family law concept in order to give grounds to immigration
rights
Which societal trend?
● Societal trend = Unequal rights of women (Western world showed an
equalization of women rights)
○ Family law deals with issues and trends
○ How do we deal with a woman who has given up her career to take
care of her children during a marriage
○ If that marriage is terminated and hasn’t had a career and little
opportunity how can she support herself?
● Societal trend = increase in divorce
○ Across the EU there is an increase of marriages ending in divorce
○ Increase in the need to deal with children whose parents are
divorcing
○ Contentious divorces = cause huge trauma for children
● Societal trend = bisexuality, gay, and alternative forms of sexual
orientation and gender (more acceptance)
○ Criminalizing certain areas
○ Removing certain protections offered to homosexual couples
○ Equalization of these
● Societal trend = increase of people giving birth to children outside of
marriage
○ A trend that the law can’t deny
Summary of trends in family law
1.Rise in births outside marriage
2.Custody awards are becoming gender neutral
3.Co-parenting
4.Status of children within family law
5.Same-sex couples in Europe: more rights in more countries
,6.Alternative dispute resolution - non-confrontational approach to family
problems
Definitions of Family - conceptual
1. A family is a married, civil partnered or cohabiting couple with or without
children, or a lone parent, with at least one child, who live at the same
address
2. A family is a group of people who are related to each other, especially
parents and their children
a. Blood relatives
b. Group of relatives with the same name
In 2014 the US Census Bureau began including same-sex marriages in their
counts of families. Prior to this, they were counted as cohabiting partners and
thus not considered to form a family
Family law = definition
● Legal regulation of adult relationships and parent-child relationships,
together with the financial aspects of such relationships
● Dutch: personen- en familierecht
● English: the law of persons and family law
● “Regardless of whether globalization is to be applauded or condemned, it
has had the undeniable effect of bringing more people and cultures
together, the result for the family law practitioner is a world of new and
challenging legal issues as well as new possibilities prompted by the cross
fertilization of legal ideas” - D. Blair & M. Weiner, Family Law in the World
Community
Comparative Family Law International Family Law
1. Focuses on developments with 1. Entails the rules for
its great variety of family law cross-border family relations on
systems the one hand and
2. Comprises a general, instructive 2. The body of international and
and pointed comparison of the (European) instruments and
American and European Family decisions of supranational
law systems and eventually take courts, which regulate family
into account - as far as this has relationships, on the other
been possible - al family law
systems in the world
Legislative framework
National Level - every country
- Legislation: constitution, civil code and statute
- Case law
, - Regional level - European Union / Intern - American
Human Rights
- Convention for the Protection of Human Rights and Fundamental
Freedoms
- Case Law - the practical application of Article 8 thereof developed by the
European Court of Human Rights
- Regulation 2201/2003 - few definitions regarding parental responsibility and
the rules of jurisdiction
International Level
- Cross border family law / private international law
Global Level
- United Nations - UN convention on the Rights of the Child (UNCRC) /
human rights treaty which sets out the civil, political, economic, social,
health and cultural rights of children
- Hague Convention of May 29 1993 on Protection of Children and
Co-operation in Respect of Intercountry Adoption (Hague Adoption
Convention)
The Role of the Public Policy
● A doctrine, which addresses the principles typical for certain country or
region that underpin the operation of the legal system
● Affects the whole population
● It concerns values, that change and evolve with the time
● The law in general is most effective when it corresponds the general social
norms
European convention on Human Rights
● Convention for the Protection of Human Rights and Fundamental
Freedoms
● Opened for signature in Rome on 4 November 1950 and came into force in
1953
● The first instrument to give effect to certain of the rights state in the
Universal Declaration of Human Rights and make them binding
Articles to be studied
Article 8 - Right to respect for private and family life
● Article 8 ECHR
● Right to respect for private and family life
○ 1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
○ 2. There shall be no interference by a public authority with the
xcept such as is in accordance with the law
exercise of this right e
and is necessary in a democratic society in the interests of national
security, public safety or the economic wellbeing of the country, for
