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UPDATE: Transnational and Comparative Family Law: Harmonization and Implementation

 

By Marylin Johnson Raisch

 

Marylin Johnson Raisch is the Associate Law 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. She holds degrees in English literature from Smith College and St. Hugh's College, Oxford. She received her M.L.S. degree from Columbia University School of Library Service. Marylin is the author, co-author, or editor of several articles, reviews, and web guides on international and foreign legal research, including the current ASIL European Union Research Guide; the annual book and web surveys for the Journal of International Economic LawCode and Hypertext: The Intertextuality of International and Comparative Law, 35 Syracuse J. Int’l L. & Com. 309 (2008), and most recently “Shaping Electronic Collections in Foreign, Comparative and International Law,” in  IALL Handbook on International Legal Research, (Richard Danner and Jules Winterton, eds.), Ashgate, 2011. Marylin has served as moderator or panelist in several continuing education programs at the annual meetings of the American Association of Law Libraries and is past Chair of its Foreign, International, and Comparative Law Special Interest Section.  She is currently Secretary of the International Legal Research Interest Group of the American Society of International Law.

 

Published August 2013
(Previously updated in July 2009)

The Archive Version

 

Table of Contents

1.     Introduction

2.     Major international agreements

2.1. The Hague  Conference of Private International Law

2.1.1.      International Protection of Children, Family, and Property Relations

2.1.2.     Status of Hague family law treaties

2.1.2.1.           Note on United States practice

2.1.2.1.1.                Regarding the Hague convention on the Civil Aspects of International   Child Abduction, Oct. 24 1980

2.1.2.1.2.                General note on treaty interpretation and the Explanatory Reports

2.2.  The United Nations

2.2.1.     Rights of Women

2.2.2.     Rights of the Child

2.2.3.      Marriage

2.2.4.      Nationality, Statelessness, Asylum, and Refugees

2.3.   Council of Europe

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

2.4.1.     U.S. Department of State International Child Support Enforcement

2.4.2.      InterCountry Adoption, Office of the Department of State

2.5.   The Organization of American States

2.5.1.     Inter-American Children’s Institute

2.5.2.     Inter-American Commission of Women

2.5.3.      Office of International Law, Private Law

2.6.   The African Union

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

3.     Civil and common law approaches

4.     An illustrative list of national constitutions and legal sources for family law

4.1. Same-Sex Marriage: A Selected Bibliography

5.     A selection of recent relevant articles and books

5.1. Inheritance and succession; social security

5.2.   Marriage and Marital Rights

5.3.   Children’s Issues

5.4.   Religious law, general family law, and legal theory

 

1.     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. The purpose of this guide is to indicate how these international conventions are implemented in selected jurisdictions with some indication of how to locate substantive national law under these same international regimes.

2.     Major international agreements by sponsor or region

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.

 

2.1.   The Hague Conference on Private International Law

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. The conference has developed an International Child Abduction Database (INCADAT) (treaties covered in the database are indicated below by an asterisk*), in English, French, and Spanish to support the implementation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction; the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Inter-country  Adoption; and the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (texts linked below).  Its features include a case law search template and database for use by judges, Central Authorities, and lawyers which can be accessed by state party, legal issue, treaty article, or level of court.

 

2.1.1.   International Protection of Children, Family and Property Relations

International Protection of Children

·       Protection of Children (1996)*

·       Child Abduction (1980) *

·       Adoption - Co-operation (1993)*

·       Maintenance Obligations (Applicable Law) (1973)

·       Protocol on the Law Applicable to Maintenance Obligations (2007). Note that Art. 2, Universal Application, states that the Protocol “Protocol applies even if the applicable law is that of a non-Contracting State.” Repeated below under Marriage; applies also to child support (Art. 1).

·       Maintenance Obligations (Enforcement) (1973)

·       Maintenance Obligations- Children (Applicable Law) (1956)

·       Maintenance Obligations - Children (Enforcement) (1958)

·       Protection of Minors (1961)

·       Adoption (1965)

·       The International Recovery of Child Support and Other Forms of Family Maintenance (2007)

International Protection of Adults

·       Protection of Adults (2000)

Relations between (Former) Spouses

·       Marriage (1978)

·       Divorce (1970)

·       Matrimonial Property Regimes (1978)

·       Maintenance Obligations (Applicable Law) (1973)

·       Maintenance Obligations (Enforcement) (1973)

·       Protocol on the Law Applicable to Maintenance Obligations (2007)

Wills, Trusts and Estates

·       Form of Wills (1961)

·       Administration of Estates (1973)

·       Succession to Estates (1989)

·       Trusts (1985)

 

2.1.2.   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?].

 

2.1.2.1.    Note on United States practice:

 

2.1.2.1.1. Regarding the Hague convention on the Civil Aspects of International Child Abduction, Oct. 24 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11:

 

As a party to this treaty, the United States has implemented it through the International Child Abduction Remedies Act, Pub. L. No. 100-300, 102 Stat. 437, codified at 42 U.S.C. §§ 11601 et seq. In Abbott v. Abbott, 130 S.Ct. 1983 (2010), The U.S. Supreme Court ruled that a particular jurisdiction’s grant of a ne exeat right to a parent (in this case, under Chilean law), even if that parent was not awarded primary custody of the minor child, conveys “a right of custody” under which the non-custodial parent may apply for return. The court related it to “the care of the person of the child” (Abbott at 1990). Most significant, however, is that the court recognized “an emerging international consensus that ne exeat rights are rights of custody” (Abbott at 1994). Note that ne exeat refers to the non-custodial parent’s right to consent to a child’s travel to another jurisdiction. There has been some subsequent negative treatment in the U.S., and see also other issues discussed in Paul B. Stephan, “Abbott v. Abbott: A New Take on Treaty Interpretation by the Supreme Court,” ASIL Insight, Volume 14, Issue 24, August 4, 2010.

 

For a summary of recent European developments alongside Abbott see Linda J. Silberman, “The Hague Convention on Child Abduction and unilateral relocations by custodial parents: a perspective from the United States and Europe - Abbott, Neulinger, Zarraga,” 63 Oklahoma Law Review 733 (2011).

  

2.1.2.1.2.   General note on treaty interpretation and the Explanatory Reports:

Elisa Perez-Vera, Explanatory Report, 3 Acts and Documents of the Fourteenth Session of the Hague Conference on Private International Law, 426 (1982) has been recognized as an official commentary, but is prepared from process-verbaux and the reporter’s notes and not approved by the Conference. See this Report at 427-238. The nature and use of certain Special Commission documents for INCADAT and the Child Abduction Convention have been questioned, see Carol S, Bruch and Margaret M. Durkin, “The Hague’s Online Child Abduction Materials: A Trap for the Unwary,” 44 Family Law Quarterly 65 (2010-2011).  

 

There is a general sense that the Explanatory Reports of the Hague Conference on Private International Law have been regarded by many jurisdictions, and more generally the United States, and a type of travaux preparatoires although there are disclaimers such as that of rapporteur Perez-Vera above. While the United States is not party to the 1969 Vienna Convention on the Law of Treaties, its article 32 provides for “supplementary means of interpretation.

 

2.2.     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), 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. Links to the status of treaties for the United Nations Treaty Series now include a link to full text by clicking on the U.N.T.S. volume number.

The Universal Human Rights Index now integrates the documents of the treaty bodies, periodic reporting, and jurisprudence where applicable in a complaints procedure, and alternative reports. This applies more significantly to the rights of women and of the child, below. 

2.2.1.    Rights of Women

·       Declaration on the Elimination of All Forms of Discrimination against Women , G.A. Res. 2263(XXII), U.N. Doc. A/RES/2263(XXII), (Nov. 7, 1967).

·       Convention on the Elimination of All Forms of Discrimination against Women , Dec. 18, 1979, 1249 U.N.T.S. 13; 19 I.L.M. 33 (1980).

·       Optional Protocol to the Convention on the Elimination of Discrimination against Women , Dec.10, 1999, 2131 U.N.T.S. 83 (2000).

·       Declaration on the Elimination of Violence against Women , G.A. Res. 48/104, U.N.Doc. A/RES/48/104(Dec. 20, 1993).

·       Declaration on the Protection of Women and Children in Emergency and Armed Conflict , G.A. Res. 3318(XXIX), U.N. Doc. A/RES/3318(XXIX) (Dec. 14, 1974).

·       Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime, Nov. 15, 2000, 2237 U.N.T.S. 319.

·       IMPOWR Database on Women’s Rights- profiles of jurisdictions, treaties, legal system

2.2.2.    Rights of the Child

·       Convention on the Rights of the Child (CRC) , Nov. 20, 1989, 1577 U.N.T.S. 3; 28 I.L.M. 1456.

·       Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (CRC-OPSC), May 25, 2000, U.N. Doc. A/RES/54/263.

·       Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (CRC-OPAC) , May 25, 2000, U.N. Doc.A/RES/54/263 (2002).

·       Minimum Age Convention, June 26, 1973 (No. 138) ILOLEX NORMLEX

·       Worst Forms of Child Labour Convention, 1999 (No. 182), June 17, 1999, ILO via ILOLEX NORMLEX

·       Declaration on the Rights of the Child, G.A. Res1386 (XIV), U.N. Doc. A/RES/1386 (XIV) (Nov. 20, 1959).

·       Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally G.A. Res. 41/85, U.N. Doc A/RES/41/85 (Dec. 3, 1986) (see also 1993 Hague convention on inter-country adoption and the 1980 Hague convention on child abduction, cited in the section above)

·       Child Rights Information Network (CRIN) contains all major past and present documentation on children’s rights and the conventions. It included a case-law database for cases under the CRC from member states. There is a section providing an overview of all regional mechanisms.

·       Children’s Rights: International and National Law and Practices (from the Law Library of Congress)

·       U.S. Department of State, International Parental Child Abduction

 

2.2.3.   Marriage   

 

·       Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, Dec. 10, 1962, 521 U.N.T.S. 231 (1964).

 

2.2.4.    Nationality, Statelessness, Asylum and Refugees

·       Convention on the Nationality of Married Women, Feb. 20, 1957, 309 U.N.T.S.  65 (1958).

 

2.3.    Council of Europe

·       European Social Charter Database

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

·       Council of Europe Human Rights Equality between men and women

 

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

2.4.1.  U.S. Department of State International Child Support Enforcement

2.4.2.  InterCountry Adoption, Office of the Department of State:                                    

Excellent database of statistics, the adoption process, country-by-country information, and the operation of the Hague treaty.

 

2.5.      The Organization of American States

(Note: most conventions are linked under the treaties and conventions section of the OAS site without specific URLs)

 

2.5.1.   Inter-American Children’s Institute

Inter-American Children's Institute contains information and documents on implementation in

OAS member states of the U.N. Convention on the Rights of the Child

 

2.5.2.    Inter-American Commission of Women

The 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)

 

2.5.3.     Office of International Law, Private International Law

The 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. Montevideo, Uruguay, 1989

Inter-American Convention on Conflict of Laws concerning the Adoption of Minors. La Paz, Bolivia, 1984

Inter-American Convention on Support Obligations. Montevideo, Uruguay, 1989

Inter-American Convention on International Traffic in Minors, Mexico City, Mexico, 1994

 

The INCADAT database on Child Abduction for the Hague Conference on Private International Law includes and Inter-American Convention section for the Inter-American Convention on the International Return of Children of 15 July 1989.

 

 

2.6.       The African Union

 

·       Protocol to The African Charter on Human and Peoples' Rights on the Rights of Women in Africa

·       African Charter on the Rights and Welfare of the Child

·       The status of treaties sponsored by the African Union is provided in a chart and list of links to full text is available online.

 

2.7.     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 Marylin J. Raisch, Religious Legal Systems, GlobaLex, 2013.

 

3.     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).

·       International Journal of Law, Policy and the Family. Oxford, UK: Oxford University Press, 1996- .

4. An illustrative list of national constitutions and legal sources for family law

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 a family law entry for each issue of the free Global Legal Monitor, including judicial interpretations of family law, tracking latest developments.

 

Afghanistan

·       Constitution, and civil code:

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

·       Constitution; there is also a family code as of 2003 and civil code in English available.

 

Argentina

·       Constitution

·       Divorce provisions and civil code

·       Legislación Consejo Nacional de la Mujer (Legislation concerning the rights of women)

 

Australia

·       Constitution

·       Commonwealth of Australia’s Consolidated Acts

·       Tasmania’s Act Legalizing Civil Unions

 

Austria

·       Constitution (English;  current German version )

·       Austrian Legislation

 

Bangladesh:

·       Constitution amended through 2004; text amended through 2011 available via World Constitutions Illustrated (fee based)

·       Bangladesh Law Translation Project (includes family, children)

 

Bolivia

·       Constitutions

·       Nuevo Codigo del Menor (code for children minors, Spanish)

·       Ley contra la violencia en la familia o doméstica (Law against violence against the family or in the home)

 

Bosnia and Herzegovina

·       Constitution (1995)

 

Brazil

·       Constitution (1988 as amended to 2006),

·       Constitution pdf

·       Civil code (in Portuguese)

·       Statute of the Child and Adolescent, 1990

·       Brazilian Legislation (in Portuguese)

 

Cambodia

·       Constitution (2010)

·       Law on Marriage and Family

·       Cambodian Law Blog, section on family law

 

Canada

·       Constitution

·       Civil Marriage Act, 2005 (integrates same gender marriage)

·       Canadian Human Rights Act

 

China

·       Constitution (1982)

·       Family Law

 

Colombia

·       Constitution (1991)

·       Civil code (in Spanish)

·       Law on the Female Head of Household ( la mujer cabeza de familia) (1993)

·       Codigo del Minor (1989)

 

Democratic Republic of the Congo

·       Constitution (2006) (in French)

·       Laws of succession and others at CongoLegal (in French)

 

Costa Rica

·       Constitution (1949, 2003)

·       Civil code

·       Code for Children and Adolescents (1998) 

 

Ethiopia

·       Constitution (1994)

·       Family code (2000)

 

Finland

·       Constitution (2000)

·       Marriage act (2001)

 

France

·       Constitution (1958)

·       Civil code (in English)

·       Code de l'action sociale et des familles  (2010) 2010 (in French)

 

Germany

·       Constitution (1949, as at 2010)

·       Same-sex partnerships (2001)(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, but not all updated, at the German Law Archive.

·       Civil Code  

 

India

·       Constitution (1949, 2008) and constitutional amendment acts

·       Family and Inheritance Laws (vary by religious community affiliation, listed here)

 

Indonesia

·       Constitution (1945)

·       Civil code

 

Iran

·       Constitution (1979)

 

Iraq   

·       Constitution, (2005)

 

Israel

·       Explanation of absence of a Constitution (Basic Laws are in place)

·       Basic Law, Human Dignity and Liberty 1992

 

Italy

·       Constitution  (1947)

·       Civil code

 

Japan

·       Constitution (1946)

·       Basic Law for a Gender-Equal Society (1999) and Law for the Prevention of Spousal Violence (2008)   

·       Civil code (English)

 

Kenya

·       Constitution (2010)

·       Statutes, e.g. Age of Majority (1974); Children Act (2001), Marriage etc at Laws of Kenya database

 

Korea (South)

·       Constitution (1987)

·       Women’s rights promotion, trafficking

 

Lebanon

·       Constitution (1995)

·       Laws of Lebanon (Arabic)

 

Liberia

·       Constitution (1986)

 

Mexico

·       Constitution

·       Civil code, federal (district model) and states, updated through Dec. 6, 2006, via Lexadin, (in Spanish, some files are large via UNAM site).

 

Netherlands

·       Constitution (2002) at OSCE Legislationline)

·       Children and children’s rights, policies and documents

 

Nigeria

·       Constitution

 

Pakistan

·       Constitution

·       Child Marriage Restraint Act

·       Dissolutions of Muslim Marriages Act

·       Muslim Family Law Ordinance

·       The Punjab Marriage Functions at database

 

Philippines

·       Constitution (1987)

·       Family Code of the Philippines

·       Laws on human trafficking  

 

Poland

·       Constitution (1997)

   

Russian Federation

·       Constitution (1993)

·       Civil code (to 2003, in English)

 

Saudi Arabia

·       Constitution (Basic Law of Governance 1992, English)      

 

South Africa

·       Constitution (1996)

·       Matrimonial Property Act(1984)

·       Children’s Amendment Act 2007

·       Civil Union Act  (same gender marriage)

·       Recognition of Customary Marriages Act

 

Spain

·       Constitution (1978)

·       Marriage law (same sex)

 

Thailand [omitted family law reference]

·       Constitution (2007)

 

Turkey

·       Constitution (2001)

 

United Kingdom

·       Civil Partnership Act

 

 

4.1.     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, LGBT Rights by Country or Territory (note that Wikipedia, whatever its other faults, produces a more unbiased and usable result on this topic than Google, where political sites abound) :

 

·       Argentina

·       Belgium

·       Brazil

·       Canada

·       Denmark

·       France

·       Iceland

·       Mexico City

·       Netherlands

·       New Zealand

·       Norway

·       Portugal

·       South Africa (beginning December 1st, 2006)

·       Spain

·       Sweden

·       United States’ states: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, District of Columbia, New York, Washington, Maine, Maryland, Rhode Island, Delaware, Minnesota

 

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

·       Andorra,

·       Croatia,

·       Czech Republic,

·       Denmark,

·       Finland,

·       Germany,

·       Israel,

·       Luxembourg,

·       Mexico,

·       Slovenia,

·       Switzerland,

·       United Kingdom,

·       the Australian States of Tasmania and Western Australia

 

 

Note: some jurisdictions offer both civil unions and marriage; the lists above show which offer marriage “plus” and which just offer civil unions.

 

OECD and UN distinguish between same-sex and opposite-sex marriages in employees regarding benefits, 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

5.          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. The Library of Congress general heading is Domestic relations (international law):

 

5.1.       Inheritance and succession; social security

 

·       Miriam Anderson and Esther Arroyo i Amayuelas, eds. The law of succession: testamentary freedom: European perspectives. Groningen: Europa Law Publishing, 2011.

·       Probert, Rebecca, ed., Family life and the law: under one roof. Aldershot, England; Burlington, VT: Ashgate, 2007.

·       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 Widows 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).

 

5.2.       Marriage and marital rights

 

·       Katharina Boele-Woelki Angelika Fuchs, eds. Legal recognition of same-sex relationships in Europe: national, cross-border and European perspectives.

·       Europäische Rechtsakademie Trier. Conference (2011: Trier, Germany). Cambridge, UK; Portland. OR: Intersentia, 2012.

·       Jens M. Scherpe, ed. Marital agreements and private autonomy in comparative perspective. Oxford; Portland, OR Hart, 2012.

·       Caroline Sörgjerd. Reconstructing marriage: the legal status of relationships in a changing society.Cambridge, UK; Portland, OR: Intersentia, 2012.

·       Lynn Welchman. Women and Muslim family laws in Arab states: a comparative overview of textual development and advocacy. [Amsterdam]: Amsterdam University Press, 2007.

·       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).

 

 

 

5.3.       Children's issues

 

·       Clark Butler, ed. Child rights: the movement, international law, and opposition. West Lafayette, Ind.: Purdue University Press, 2012.

·       Farhad Malekian and Kerstin Nordlöf, eds. The sovereignty of children in law. Newcastle upon Tyne: Cambridge Scholars, 2012.

·       Commentary on the United Nations Convention on the Rights of the Child: multivolume series (various titles and authors per articles considered) Leiden; Boston: Martinus Nijhoff Publishers, 2006-(2008 and ongoing; vols. for 2012 include arts. 5, 17, 32  and 33).

·       Feria T Mónica, The landmark rulings of the Inter-American Court of Human Rights on the rights of the child: protecting the most vulnerable at the edge. Leiden; Boston: Martinus Nijhoff Publishers, 2008.

·       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.

·       Paul R. Beaumont and Peter E. McEleavy, The Hague Convention on International Child Abduction. Oxford; New York: Oxford University Press, 1999.

 

5.4.      Religious law, general family law and legal theory

 

·       Philip Alston and Ryan Goodman. International human rights: the successor to international human rights in context: law, politics and morals: text and materials. Oxford: Oxford University Press, 2013.

·       Anver M. Emon, Mark S Ellis, Benjamin Glahn, eds. Islamic law and international human rights law: searching for common ground? Oxford: Oxford University Press, 2012.

·       Rubya Mehdi, Werner Menski & Jørgen S. Nielsen, eds. Interpreting divorce laws in Islam. Copenhagen: DJØF Pub., 2012.

·       J. Meeusen [et al.] (eds.), International family law for the European Union. Antwerpen: Intersentia, 2007.

·       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).