UPDATE: Transnational and Comparative Family Law: Harmonization and Implementation

 

By Marylin Johnson Raisch

 

Marylin Johnson Raisch is the Associate Director for Research and Collection Development at 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, and editor of several articles, reviews, and web guides on international and foreign legal research. Such include the current ASIL European Union Research Guide; the annual book and web surveys for the Journal of International Economic Law; Code and Hypertext: The Intertextuality of International and Comparative Law, 35 Syracuse J. Int’l L. & Com. 309 (2008); and chapters on UK Legal Research and UK implementation of EU law (in Legal Research Handbook [D.T. MacEllven], Neil A. Campbell and John N. Davis, eds., 6th ed., LexisNexis Canada, 2013). 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.

 

Published April 2017

(Previously updated in July 2009 and July 2013)

See 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.   Multicultural Jurisdictions, General Family Law, Selected Jurisdictions

 

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. An excellent resource on this topic is the Encyclopedia of Private International Law (Jürgen Basedow, et al., eds), Edward Elgar Publishing, 2017. It includes article/entries on the topics dealt with most often in international family law: adoption, child abduction, divorce, marriage, and trusts.

 

2.     Major International Agreements by Sponsor or Region

In the family law area, treaties that 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 website 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 ‘*’. Sources in the database are available 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

International Protection of Adults

 

Relations between (Former) Spouses

 

Wills, Trusts and Estates

 

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 these charts, available by instrument (right navigation bar under “status table”) as well as in an overview PDF showing member of the conference as well as non-member states. In the Governance section of the site, one can also find indication of 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 UNICITRL 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, available at here.

 

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

 

2.2.2. Rights of the Child

 

2.2.3. Marriage

 

2.2.4. Nationality, Statelessness, Asylum and Refugees

 

2.3. Council of Europe

·      European Social Charter Database - Searches: sex equality, maternity, mothers and children, workers with family responsibilities, housing. Uses the same structure and format of the other more well-known HUDOC database for decisions and judgments of the European Court of Human Rights.

·      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:

 

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".

 

 

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

 

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 was 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. 

 

4. An Illustrative List of National Constitutions and Legal Sources for Family Law

For links to the constitutions of the world in a reliable internet source, and with a superb comparative chart feature for areas of constitutional law to view parallel topics as treated in two different countries’ constitutions, the best current source is Constitute, or the Constitute Project produced by the Comparative Constitutions Project at the University of Texas at Austin. In the concept filters, expand Rights and Duties to find Civil and Political Rights and listed are “right to found a family”, “right to marry”, and “rights of children”. Under Equality, Gender and Minority Rights will be found “equality of sexual orientation” and “provision for matrimonial equality”.

 

HeinOnline publishes the database World Constitutions Illustrated, and this is the best fee-based service, incorporating historic constitutions along with classic commentary and a vast digital library of related treatises.

 

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).

 

The Law Library of Congress maintains family law entries for the free Global Legal Monitor, including judicial interpretations of family law, tracking latest developments. Topics phrases include same sex marriage, marriage and family status, child custody, child support and children’s rights. Specific countries’ laws are cited and summarized.

 

The Law Library of Congress also maintains an excellent blog, In Custodia Legis, updating legal developments in specific countries, authored by a legal specialist responsible for monitoring updates for countries in a particular region or language group, and many of these deal with family law.

 

The best source to update the information for countries below and for the family law conventions to which they may be a party is also from the Law Library of Congress: The Comprehensive Index of Legal Reports. These update treaties and legislation on legal topics; relevant to family law are Adoption, Custody, and Parentage, Education, Family, and Children's Rights, Marriage, Divorce, and Estates, Minority and Human Rights, and Immigration, Nationality, and Citizenship.

 

Links below are to constitutions and general areas of family law for selected jurisdictions. Please use the Global Legal Monitor and the Comprehensive Index of Legal Reports cited above to supplement and update the countries listed below, as well as non-Hague-member countries, for some areas, such as Provisions on Child Abduction.

 

Afghanistan

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

 

Argentina

 

Australia

 

Austria

 

Bangladesh:

 

Bolivia

 

Bosnia and Herzegovina

 

Brazil

 

Cambodia

 

Canada

 

China PRC

 

Colombia

 

Democratic Republic of the Congo

 

Costa Rica

 

Ethiopia

 

Finland

 

France

 

Germany

 

India

 

Indonesia

 

Iran

 

Iraq

 

Israel

 

Italy

 

Japan

 

Kenya

 

Korea (South)

 

Lebanon

 

Liberia

 

Mexico

 

Netherlands

 

Nigeria

 

Pakistan

 

Philippines

 

Poland

 

Russian Federation

 

Saudi Arabia

 

South Africa

 

Spain

 

Thailand [omitted family law reference]

 

Turkey

 

United Kingdom (no written modern constitution; 1215 rev. to 2013 to cover Judicature and Constitutional Reform acts, establishment of a Supreme Court)

 

4.1. Same-Sex Marriage

 

A Selected Bibliography of the Legal Literature

 

 

Marriage recognized and rights given as such (information from Global Legal Monitor cited above) and LGBT Rights by Country or Territory:

 

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

 

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.

 

Also useful: Human Rights Watch, Non-Discrimination in Civil Marriage: Perspectives from International Human Rights Law and Practice.

 

5. A Selection of Recent 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):

 

Major reference work: Jürgen Basedow, Giesela Rühl, Franco Ferrari, Pedro de Miguel Asensiom eds. Encyclopedia of Private International Law. 4 vols. Cheltenham, UK: Edward Elgar, 2017. Covers topics in family and personal law among the many other topics of private international law, with relevant entries for this area from adoption to transsexuals

 

5.1. Inheritance and Succession; Social Security

 

5.2. Marriage and Marital Rights

 

5.3. Children's Issues

·       Michael Freeman, ed. Children's health and children's rights. Leiden; Boston: Martinus Nijhoff Publishers, 2006.

 

5.4. Multicultural Jurisdictions, General Family Law, Selected Jurisdictions