Oxford University Comparative Law Forum

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Oxford University Comparative Law Forum

Convergence in Family Law: Mirrors, Transplants and Political Economy

by David Bradley1

(2001) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

(Originally published in (1999) 6 Maastricht Journal of European and Comparative Law 127-150)

Table of content

1. Introduction

Pressure for convergence of family laws appears to be intensifying. An impetus for greater uniformity in this sphere is apparent as part of the general project of European unification. The Council of Europe's record of its ‘achievements in the field of law' now includes initiatives relating to family law.2

International instruments reinforce impressions of a centralizing influence in this area of legal policy - the most prominent are the European Convention on Human Rights and United Nations Conventions on the Elimination of Discrimination Against Women and the Rights of the Child. Moreover, the range of European conventions is increasing.3

The prospect of further enlargement of the European Union, with extension of rights to free movement and residence, must reinforce arguments that private international law solutions for problems posed by domestic relationships will prove increasingly inadequate.4 The European Parliament has also shown little reticence in tackling the most fundamental, or at least high profile, contemporary challenge to traditional values in family law in advocating a marital or quasi-marital status and also rights to foster and adopt children for same-sex partners.5

A spectrum of academic opinion complements these developments and argues for cross-cultural convergence of family laws, or implies that this does not involve particular difficulties. Mirror theories of comparative law present an alternative view. From this standpoint, legal policy applied to domestic relationships, as in other spheres, has an intimate association with - is a reflection of - the environment in which it has developed.

The importance attributed to political and institutional factors indicates the distance between these opposing positions. One interpretation of mirror theories is that family laws are unique to political cultures. At the other extreme, a particular version of Watson's transplants thesis does not merely disregard political constraints on the adoption of legal models from other jurisdictions, but explicitly rejects this type of influence as irrelevant.6

This article reviews mirror and convergence theories and their application to a range of contemporary issues, including the status of same-sex relationships, abortion regulation and marital capacity, divorce and marital property laws. The objective is to consider the extent to which institutional factors are a determinant of legal policy and limit the scope for convergence. In particular, the article examines an argument which underpins the transplants thesis. This is the assertion that theories based on the idea of a close relationship between law and society must be untenable as similar laws operate in very different cultures and different laws also operate in very similar cultures. In conclusion, the perspective developed in this article is applied to comparative family law as an academic discipline.

2. Comparative Family Law: Mirror and Transplant Theories

There is a long standing view that family law presents particular difficulties for comparatists.7 Glendon has in fact asked: ‘[c]an there be comparative family law?'.8 This pessimism may be explained by the fact that her question introduced a lecture on abortion and divorce in the Republic of Ireland which, inter alia, considered comparative analysis as an aid to law reform.

Legal policy in this area was integral to Montesquieu's perspective of the spirit of the laws peculiar to a particular people, influenced by factors such as climate. (Thus for Montesquieu: ‘[i]n northern climates, the physical aspect of love has scarcely enough strength to make itself felt ... in hotter climates, one likes love for itself; it is the sole cause of happiness; it is life'.9) Kahn-Freund, writing in the early 1970's, noted an extensive migration of laws relating to the family,10 but concluded his analysis of ‘uses and misuses of comparative law' with the warning that:

"... we cannot take for granted that rules or institutions are transplantable. The criteria answering the question whether or how far they are, have changed since Montesquieu's day, but any attempt to use a pattern of law outside the environment of its origin continues to entail the risk of rejection. The consciousness of this risk will not, I hope, deter legislators in this or any other country from using the comparative method. All I have wanted to suggest is that its use requires a knowledge not only of the foreign law, but also of its social, and above all its political, context."11

These caveats appear particularly appropriate for the development of family law, if regulation in this sphere is seen as establishing principles of social organization, rather than simply rights of parties inter se. From a contemporary standpoint, legal policy applied to domestic relationships could constitute a line of defence for opponents of European imperialism such as Legrand, who argue that legal cultures should not and will not converge.12 In fact, the concept of a European family law, it has been suggested, depends at present on ‘fragmentary principles of disparate nature', with the prospect of continuing diversity between individual jurisdictions.13 Moreover, family and inheritance laws have been seen as unsuitable for incorporation in a European Civil Code.14

Set against ‘mirror theories', so called,15 is a body of opinion which assumes that closer harmonization of family laws does not pose problems. For example, although Glendon was sufficiently troubled in her lecture on Irish abortion law, noted above, to question the whole enterprise of comparative family law, she had no difficulty in advocating abortion legislation from Europe for the United States.16 (The introduction of divorce and shift on abortion rights in Ireland since the lecture referred to above can also be noted.17) And Markesinis, a proponent of the view that there is a ‘gradual convergence' of laws,18 has urged the introduction in England of a marital property regime based on the German Zugewinngemeinschaft or New Zealand Matrimonial Property Act 1976. The extensive discretion exercised by English courts on divorce would therefore be replaced by a system for which the starting point is fixed entitlements.19

Common trends - ‘the development of liberty, equality and secularity'20 - have been identified in the development of laws relating to the family. This evolution is reflected in Glendon's assessment of the liberalization of marital capacity laws21 and Friedmann's earlier identification of an individualistic ethic in divorce reform.22 Particular jurisdictions have been seen as adopting a pioneering role in this transition. Zweigert and Kötz refer (with some reservations) to Nordic co-operation as a model for Europe.23 An image of uniform development is carried in their assessment that:

"[i]n the field of family law ... many questions on which reform was proposed in Continental Europe only after the Second World War were raised or even solved in Scandinavian law much earlier: one may mention the equality of husband and wife [and] the abandonment of the principle of fault in divorce law ..."24

Beyond all this is Watson's controversial legal transplants thesis.25 One conclusion drawn from this is that construction of a uniform private law for the West, with power to derogate to provide the illusion of security for individual jurisdictions, would be relatively easy, although not a particularly useful exercise.26 ‘Frequent revision of the basic code in the light of national modifications would in a short period result in a virtually unitary legal system'.27 Although it is not an objective here to undertake a comprehensive review of Watson's perspective on comparative law, it is important to consider propositions which locate ‘strong' versions of the transplants thesis at the extreme end of convergence theories. The fact that this thesis is presented in different, ‘weak' and ‘strong' forms,28 also makes it important to quote verbatim in some cases below.

Salient points in Watson's argument are that transplantation, i.e. the adoption or imitation of external models, has been a ubiquitous feature of the development of private law.29 Objections that family laws present special difficulties for this process are dismissed,30 as are notions of a simple relationship between a country and its laws of the type indicated by Montesquieu.31 Watson concludes that:

"[i]f law on a large scale was borrowed from a very different place and survived to a very different time, it could scarcely be regarded generally as ‘the spirit of the people'. And if fundamental rules and principles and structures survived in very different economic, social, and political conditions, they could hardly reflect in any adequate way the power or economic base. If ... the same set of rules, say of matrimonial property, existed in very different societies as a result of borrowing (from the Visigoths to become the law of the Iberian Peninsula in general, migrating then from Spain to California, from California to other states in the western United States), then theories based on the idea of a close relationship between law and society, which explained the rationale of the rules of one society without considering the same rules elsewhere and at other times, were suspect. Similarly puzzling were very different rules, say again of matrimonial property, in neighboring and very similar communities in, for example, medieval Germany or 19th-century cantonal Switzerland."32

Finally, Watson asserts that transplantation itself has frequently been the product of legal conservatism and legal autonomy and of little concern to rulers and legislatures. In a ‘strong' form his argument is that:

"[t]he lesson of history, in fact, is that over most of the field of law, and especially of private law, in most political and economic circumstances, political rulers need have no interest in determining what the rules of law are or should be (provided always, of course, that revenues roll in and that the public peace is kept). Rulers and their immediate underlings can be, and often have been and are, indifferent to the nature of the legal rules in operation."33

3. Convergence and the Politics of Family Law

Watson's critics have themselves been criticized for making a priori assumptions about the relationship of law and society.34 To meet this objection, the range of advocates and influences promoting harmonization, noted above, can be re-considered to test the application of the transplants thesis to family law.

A. Same-Sex Relationships

The European Parliament's goal of a legal status for same-sex relationships and rights to foster and adopt children has been referred to above.35 The swift passage in the United States of the Defence of Marriage Act (sic), in response to developments in Hawaii,36 demonstrates the type of obstacle to be overcome, if this to be achieved. And the decision of the European Court of Justice in Grant v South-West Trains37 highlights the limited protection at present afforded to homosexual partners in individual jurisdictions in Europe. Moreover, this itself was seen by the European Court as grounds for limiting rights under European Union law.38

The lengthy project in France for the introduction of the ‘pacte civil de solidarité' (PACS),39 indicates that, contrary to predictions in the transplants thesis, construction of a unitary legal system in this area of private law will not be entirely trouble free.40 The PACS appears to have been a somewhat insecure symbol for the left-wing coalition at present in power.41 Its adoption by the National Assembly provoked a clear division on party lines.42 In Germany, the Federal Constitutional Court has rejected marital capacity for homosexuals, but intimated that some other form of protection might be appropriate.43 The political saliency of this issue is indicated by the response of the former Christian Democrat government to a motion in the Bundesrat calling for registered partnerships. This, it was said, would send out ‘the wrong signal'.44 The defeat of this centre-right administration in the 1998 federal election raised the prospect of change. The Social Democrats have indicated support for a status comparable to marriage on the lines of registered partnership legislation. The Greens favour a more extensive approach and have endorsed same-sex marriage and also adoption.45

In England, developments in this area also have constitutional implications. In 1998, the House of Lords defeated a proposal (passed by the House of Commons) to equalize the age of consent for homosexuals and heterosexuals. It was forecast that equalization was ‘the thin end of the wedge. It will lead to a demand for gay and lesbian marriages and for the right for such couples to adopt children'.46 However, abolition of the House of Lords in its present form has now been placed firmly on the political agenda by the present (Labour) Government.47 And the proposal to reduce the age of consent has again been passed by the House of Commons.48 Government Ministers noted pressure from the European Court of Human Rights on this issue,49 but on the question of a status in private law for same-sex partnerships, the Government itself appears cautious. It has indicated its ‘support for all families', but also emphasized the importance of marriage, not least as ‘the most reliable framework for raising children'.50

B. Abortion

Glendon's position on abortion law in the United States, noted above, urges adoption by state legislatures of the political compromise achieved in European legislation.51 The dominant model in European jurisdictions combines ‘soft' grounds for abortion with denial of the right to terminate a pregnancy.52 However, her prediction that the abortion controversy in the United States would abate, if the constraints of Roe v Wade53 were removed, has been challenged.54 The forecast that individual states would opt for compromise regulation may also be over-optimistic.

Contemporary European developments indicate the extent to which abortion regimes are conditioned by institutional considerations in particular jurisdictions. The formation of a conservative led coalition in Spain in 1996 appears to have frustrated the attempt by its socialist predecessor to extend a restrictive abortion law introduced in the post-Franco era.55 In 1998, the centre-right government and its allies narrowly defeated an initiative from the Socialist Party, which would have had introduced liberal grounds for abortion: in effect permitting first trimester abortion on request without formally conceding this.56 In Great Britain, Labour's Minister of Health has indicated support for a modest liberalization of existing abortion law but this, it appears, will prove too sensitive for the government to introduce. If, as appears likely, the precedent of the Abortion Act 1967 is followed, reform will be treated as a matter of conscience - i.e. as a ‘moral' issue - and presented as a Private Member's measure.57

In Germany, it might have been thought that the protracted dispute over abortion, which spanned unification, had been settled with a 1995 law which introduced a liberal regime, but withheld funding and mandated counselling to encourage a pregnancy to be carried to term.58 The subsequent row over participation of Catholic agencies in counselling was seen as promoting abortion as an election issue and as involving a new Kulturkampf.59 At the same time as the delicate balance on abortion was struck in the German legislature, the egalitarian ethic in Swedish social democracy was apparent in the enactment of legislation which abolished existing mandatory counselling requirements.60 State funded abortion is therefore available in Sweden on request until the 18th week. A further indication of the political sensitivity of the abortion issue is provided by the situation in Finland. Notwithstanding a common legal heritage and close ties with Sweden, it has been decided in Finland's more conservative culture to preserve the mixed rights, indicator model for abortion law introduced in 1970, despite the fact that a general revision of the Penal Code has been in progress.61

C. Marital Capacity and Divorce

Assessments of the liberalization and secularization of family laws, indicated above,62 are reinforced by provisions such as Article 12 of the European Convention on Human Rights, which guarantees a right to marry. However, there are at present significant differences in European family laws, notwithstanding the general relaxation of restrictions on marital capacity, identified by Glendon. For example, Sweden pioneered legislation in 1972 which, inter alia, recognized transsexual marriage. Its enactment complemented a radical secularization of family law which reflected the values and hegemony of Swedish social democracy.63 At the opposite extreme, governments in the United Kingdom have, to date, consistently maintained uniformity with the Church in opposing marital capacity for transsexuals.64 And in the latest decision involving transsexual marriage, the European Court of Human Rights has re-iterated that attachment to a traditional concept of marriage, based on biological criteria for determining sex, does not involve breach of the Convention.65

Harmonization on issues such as marital capacity for transsexuals will be achieved over time, if at all, and will be influenced by domestic political considerations. There is in fact some prospect of a change of position under the new Labour administration in the United Kingdom. Human rights legislation has now been enacted66 and the status of transsexuals is under consideration in the Lord Chancellor's Department.67 However, policy on other aspects of marital capacity, such as prohibited degrees of affinity, will continue to be informed by religious values - for the present at least. The desirability of maintaining links between Church and State, in relation to degrees of affinity, has in the past been made explicitly by Bishops of the Church of England in the House of Lords and the approach to reform has been cautious.68 Although, as noted above, constitutional reform is in prospect, what emerges is a sharp contrast with Swedish family law and political culture. In Sweden, affinity restrictions have been abolished and restrictions on marriage between consanguines have also been drastically curtailed.69

So far as divorce reform is concerned, the introduction of no-fault laws, noted by Zweigert and Kötz, as one example of ‘progressive' Scandinavia, is now a general phenomenon.70 In England, the Family Law Act 1996 abolished fault grounds for dissolution of marriage. Moreover, the English Law Commission's consideration of foreign models in its investigation of options for reform included an examination of Swedish law.71 However, the English Family Law Act 1996 was introduced by a Conservative Government; travaux préparatoires included references to the Bible by the Lord Chancellor;72 and an element of ‘family fundamentalism'73 formed the background to the legislation itself. By way of contrast, the Swedish divorce reform of 1973, now incorporated in a new Marriage Code, has been compared to Bolshevik family law.74

As substantive law and procedure have consistently presented divorce as a serious social problem in England,75 it is not surprising that transplantation of particular provisions of the Swedish system received little support from the English Law Commission. Thus in Sweden, divorce is permitted without grounds or waiting periods for childless couples who are in agreement. In England, the Law Commission viewed this as an abdication by the state of its responsibility for determining whether divorce should be granted.76

Swedish law does require a six month period of consideration where there are children or if divorce is opposed. This model was in fact adapted by the English Law Commission.77 However, the result is a divorce regime which is vastly more onerous and restrictive than Swedish law. The centrepiece of the Family Law Act 1996 is the system of divorce over time. This satisfies objectives of firm control over the divorce process and was endorsed by a Conservative Government. The provenance of the English legislation is confirmed by its opening provision. This refers explicitly to supporting the institution of marriage, saving marriages and saving costs.78 A gulf therefore separates English and Swedish divorce law. Uniformity in this area of family law (and many others) in these two jurisdictions would seem to be a distant if not unattainable objective.

D. Marital Property

Initiatives of the type prompted by Markesinis, for the introduction in England of community property in some form,79 have encountered formidable opposition in the past. The roots of separate property in this jurisdiction have been traced back to the 13th century.80 In France, community property was first established among lower social strata.81 In England, ‘the law of the smaller folk'82 disappeared: ‘the common law made the law of the nobles the law for all'.83 England's comprehensive feudal system was the foundation for the development of great estates in the 17th Century.84 Separate property, combined with freedom of testation, facilitated accumulation of landed wealth and capital85 and accommodated the ‘patrilineal, primogenitive and patriarchal' strict settlement.86 At the end of the 18th century, land law met the needs of landed interests, it has been suggested, and resistance to change in this quarter proved durable.87 In the 19th century, as in the reign of Edward I, English property law could be imbued with notions of the national good and was considered superior to foreign systems.88

Incorporation of the concept of the separate estate in the Married Women's Property Acts of the late 19th Century avoided a revolution in family life: this legislation merely institutionalized what equity and marriage settlements had achieved before.89 Dicey's observation was that (once again), ‘in England, the law for the great men has a tendency to become the law for all men.'90 His broader assessment at the beginning of the 20th century was of a land law,

"admirably suited for an aristocratic and plutocratic society ... natural to a country which has inherited the traditions and idea of feudalism and combined them with the sentiments and habits natural to merchants and men of business."91

This long tradition of separate property was relied on by a Royal Commission in 1956 as one argument against adoption of a community system. Moreover, the Royal Commission considered that non-intervention in the family, so far as possible, was essential.92 In the late 1960's, Parliament expressed strong support for an acquests system, but the Government was more cautious.93 The Law Commission subsequently considered models from other jurisdictions in its investigation of marital property.94 It was attracted by regimes such as the German Zugewinngemeinschaft, but eventually concluded that there was an overriding need for extensive judicial powers to re-allocate property.95 The result was a system compatible with the values reflected in the commitment to individualism and separate property, in that the judiciary could be relied on to limit costs for the state on divorce and, in addition, to protect those with substantial assets. A subsequent proposal for a co-ownership regime restricted to the matrimonial home was opposed by a Conservative Lord Chancellor (once again) on the grounds that intervention in the private realm of the family was undesirable.96 More recently, recommendations for other forms of community property have been simply rejected by a Conservative administration.97

As Zweigert and Kötz have indicated,98 emancipation of married women is now axiomatic in European family laws. However, the range of marital property systems reflects different concepts of equality and different institutional considerations. At one end of the spectrum, English law at present combines separate property during marriage with virtually unrestricted powers for the judiciary to re-allocate assets on divorce and death. At the other extreme from the English approach, the marital property regimes of the Nordic welfare states involve wide-ranging intervention in the family, but limit judicial discretion and recourse to the family as a source of housing and support on divorce. In the Federal Republic of Germany, the Law on Equality of Men and Women of 1957 rejected separate property. This is consistent with the concept of equality and the property regime originally constructed in the BGB - ‘a far cry', it has been suggested, from England's Married Women's Property legislation, but compatible with a society in which women were limited to ‘children, church and kitchen'.99 Swedish (and other) transplants were also considered in Germany, but egalitarianism and interventionism did not extend this far: the less extensive Zugewinngemeinschaft was eventually adopted.100

So far as the unifying impact of the Convention on Elimination of Discrimination Against Women is concerned, the Initial Report from the United Kingdom under the Convention, itself demonstrates that different marital property regimes can be presented as meeting the objective of sexual equality. This Report cites the different property models established by the Matrimonial Causes Act 1973 (England) and Family Law (Scotland) Act 1985 as satisfying the requirement in Article 16 of the Convention for non-discrimination within marriage.101

4. Legal Policy and Political Economy

If it is accepted that laws regulating domestic relationships are a matter of concern rather than indifference for governments and legislatures, this leaves the point, relied on in the transplants thesis, that similar laws can exist in ‘very different societies' (adopting Watson's terminology102). As noted above, this is taken to refute theories of comparative law based on the idea of a close relationship between law and society.103 However, this argument can be countered by demonstrating that similar laws can meet dissimilar - even opposing - institutional objectives. The essential consideration is that legal policy is compatible with the political economy of which it forms part. Three examples illustrate the point.

The first involves adherence to separate property in Russia after the October Revolution. Separation was in fact the marital system under the Tsarist regime,104 but the speed and sense of pride with which other post-Revolutionary family laws were introduced, indicates that its retention was not simply the result of some time lag.105 Community property was expressly excluded from the RSFSR Code on Acts of Civil Status, Marriage, Family and Guardianship of 1918.106 One suggestion is that the Bolsheviks intended to avoid mistakes made in the French Revolution in relation to sexual equality.107 At any rate, domestic relationships were to remain uncontaminated by material concerns. Consequently, the system in England's Married Women's Property Acts, which epitomized individualism, Victorian values and ‘the law of the nobles',108 also satisfied collectivist ideals, ideological attachment to the demise of the family (as well as the state and law) and antipathy to private property in post-Revolutionary Russia.109

(In the event, libertarian ideology provided inadequate protection for women: community property principles were applied by the courts in the early 1920's and incorporated in a new codification in 1926.110 Significantly, the right to vary this regime was restricted; marriage contracts had already been identified, alongside other ‘bourgeois' laws, as a ‘survival of the past' and this perspective would continue to distinguish Soviet marital property law from other community systems.111)

Divorce reform provides a second example of similar family laws operating as components of distinct, in fact fundamentally different, political systems. In Bolshevik Russia, the removal of restrictions on divorce was a means of consolidating communism.112 In certain jurisdictions of the United States, the introduction of liberal divorce laws after World War I heralded a ‘veritable divorce trade war'.113 Here divorce reform promoted capitalism. ‘Legal fees, court costs, travel, accommodation, and subsistence, all brought in millions of dollars annually for the state governments and local lawyers and businesses'.114

The issue of a quasi-marital or marital status for same-sex relationships provides a third, contemporary illustration of similar legal policies satisfying different institutional objectives. The registered partnership systems introduced in Denmark, Norway and Sweden reflect priorities of Scandinavian social democracy. In Hawaii, concessions on same-sex relationships at first instance in Baehr v Lewin and Baehr v Miike115 can be set in the context of a strong Democratic Party affiliation and also assessments of financial incentives for the first state to recognize homosexual marriage - in excess of $4 billion on some estimates.116 These differences are apparent in the minutiae of legal policy: the prescription of residence and nationality requirements in Scandinavian legislation indicates that partnership tourism is unwelcome.

Policy in the Netherlands provides a variation on this contentious issue and a further example of differences in political culture. In addition to the enactment of registered partnership legislation in the Netherlands, a commission has investigated full civil marriage for same-sex partners.117 Although the government decided against this early in 1998, majority opinion in the Dutch Parliament has been in favour; support for full marriage has been growing in the political parties; joint custody of children in homosexual relationships is now possible; and adoption by same sex-partners has also been approved in principle.118

So far as the basis for this development in the Netherlands is concerned, high levels of welfare expenditure prompt comparisons with the political economy of Swedish social democracy.119 In both jurisdictions the welfare state, rather than the traditional family, constitutes a basis for social order.120 Alongside policy on homosexuality, abortion regulation - that other leitmotif of contemporary political processes - is a further indicator of liberal Dutch attitudes. A law of 1984, which formalized existing practice in relation to abortion, gave women autonomy and, in particular, priority over the medical profession. State funding for abortion has also been accepted.121

However, in contrast to Sweden's organic state, which has produced a ‘guardian society' and ‘nation of restrictions',122 the Dutch state has been comparatively weak.123 Social engineering has been less in evidence here. For example, although a liberal abortion law has been enacted in the Netherlands, its structure differs significantly from Swedish law. The Dutch legislation of 1984, unlike Swedish abortion law, does not affirm abortion as a right, but requires a ‘situation of emergency' - albeit determined by the pregnant woman - with a five day waiting period imposed between her decision and termination of pregnancy.124 Moreover, on issues such as pensions, policy has been ‘patriarchally sexist' and, in marked contrast to the Swedish approach, ‘patriarchy has kept women in the home'.125

Confessionalism and ‘pillarization' have been dominant traits of political culture in the Netherlands.126 This has involved mutual tolerance by interest groups in Dutch society - ‘let my neighbour do it his or her way, and let me do it my way'127 - which has subsequently coalesced in the construction of the welfare state.128 (This process has not been entirely altruistic: demands have been made against the state in fields such as education and, in the past, commerce has also been at stake.129) Willingness in the Netherlands to confront directly full marital status for same-sex partners, alongside the perhaps more problematic issues of joint custody and adoption, confirms assessments that public attitudes on homosexuality and those of many MP's are already extremely liberal here.130 A somewhat different climate is apparent in Sweden. Here progress on issues such as joint custody has been slower and there has been a strong emphasis on changing public opinion in legal policy relating to homosexuality.131

5. Legal Transplants and the Quantification of Cultural Differences

If similar legal policies relating to the family can meet different objectives in the jurisdictions in which they operate, there remains Watson's conundrum, relied on to reject mirror theories, that different laws can operate in ‘very similar' communities (again adopting his terminology132). But what does it mean to say that societies or communities are ‘very similar' or ‘very different'? What criteria are applied in this quantification of cultural attributes?

Are England and New Zealand ‘very similar' or ‘very different' or just different or similar? Selection of these two jurisdictions is appropriate, as their association is seen by Watson as supporting the transplants thesis.133 In passing, he suggests that New Zealand has always been ‘the most English' of the British countries overseas.134 Watson's principal point is that ‘[t]he most striking feature of New Zealand law to an outsider is how similar it has remained to English law. Statutory changes in one are often (or even usually) mirrored in the other, even if only after a lapse of time'.135

In contrast to this evaluation, an alternative view from within New Zealand itself, not far from Watson's time frame, is that:

"[f]amily law in New Zealand naturally has its origins in England, but the divergence between English and New Zealand law since 1840 has become so pronounced in many fields that any resemblance there may be between the two is largely superficial. This is one branch of law in which the New Zealand legislature has shown itself at its most progressive; and with the protection and fostering of the stability of the family as its stated objective, it has never been in the least reluctant to experiment in statutory innovations."136

In England, by way of comparison, it has been suggested that ‘[i]t seems to be the destiny of ... family law reform to proceed in piece-meal fashion'.137 In fact, if Watson's assessment, noted above, of striking similarity between these jurisdictions is examined more closely, a distinct line of development is discernible. The process of secularization of family law, reflected in areas such as marital capacity and divorce reform and acceptance of children born outside marriage, has been consistently faster in New Zealand than in England.138

This is apparent in contemporary legal policy. For example, in contrast to the sustained resistance to transsexual marriage in the United Kingdom, marital capacity has now been extended to transsexuals in New Zealand. The separation of Church and State in New Zealand was explicitly recognized in this decision and it was considered inappropriate that the Christian concept of marriage should determine legal policy.139 A further indication of the secularization of this sphere of legal policy in New Zealand is provided by abolition of the category of voidable marriages and of non-consummation as a ground for annulment. These remnants of a religious concept of marriage have, to date, been retained in England. In addition, legislation allowing dispensations from prohibited degrees of affinity was enacted in New Zealand in 1955; in England a somewhat less flexible system was introduced in 1986.140

So far as divorce is concerned, England finally abandoned the matrimonial offence doctrine with the enactment of the Family Law Act 1996. The fact that this step had already been taken in New Zealand, in the Family Proceedings Act 1980, is consistent with the earlier progress of divorce reform.141 England's entrenched, and in comparative terms, restrictive approach to divorce can be traced back to the Reformation. Watson queries this conservative tradition.142 However, in England the break with Rome was a political rather than a religious development.143 In contrast to other Protestant countries, divorce was not introduced, although a compromise of sorts was established in due course: dissolution of marriage by Private Act of Parliament was made available for those who could afford this procedure.144 Introduction of judicial divorce in 1857 could be presented as preserving continuity with the Parliamentary procedure and, in addition, divorce continued to be restricted to certain income groups.145

In the 20th Century, all major changes to substantive divorce law, prior to the Family Law Act 1996, originated in Private Members Bills. Reform was too sensitive to be taken up by government. (On this point, it can be noted that the Family Law Act 1996 was more restrictive than the divorce law which it replaced, notwithstanding the abandonment of fault.146) In constructing the Family Law Act 1996, the Law Commission considered transplants from New Zealand and Australia; in particular the adoption of a period of separation, prior to the commencement of proceedings, as a ground for divorce. However, the Law Commission, unlike the draftsman in New Zealand and Australia, was troubled by the prospect of divorcing spouses circumventing a separation ground. In the event, as noted above, the system of divorce over time was preferred.147

The fact that the Family Law Act 1996 (England) specifies a shorter period for ‘reflection and consideration',148 than the two years separation which is the basis for divorce in the Family Proceedings Act 1980 (New Zealand), need not necessarily indicate a more conservative approach. Limiting restrictions on divorce in order to limit ‘illicit unions' was a factor in divorce reform in England in the 1960's149 and this seems likely to have been a consideration more recently. By the late 1980's England had one of the highest extra-marital birth rates in Europe outside Scandinavia.150 In fact, legal policy in this area also has been more progressive in New Zealand. The objective of the Status of Children Act 1969 (New Zealand) was to eliminate discrimination against children born outside marriage.151 A comparable measure was not introduced in England until 1987.

There is now some prospect of assimilating English and New Zealand law relating to property on divorce. The sustained commitment to separate property in England, outlined above, appears to have weakened. An impetus for the introduction of community principles in some form has recently gathered pace in the Lord Chancellor's Department.152 If there is a development on the lines of New Zealand's Matrimonial Property Act 1976, this would no doubt be seen from the transplants perspective as yet another indication of ties between these two jurisdictions. However, the fact that the principle of equal division was accepted in New Zealand over twenty years ago points to different priorities.

The motivation for the Matrimonial Property Act 1976 (New Zealand), it has been suggested, was to promote equality and justice in recognizing the contributions of both parties to a marriage.153 In England, the primary consideration in relation to equal division of assets will be the reduction of legal aid expenditure in the operation of the new divorce law - the figure of £300 million has been mentioned.154 Nor is reform assured in England: there has been strong resistance from senior judges to a measure which would limit their discretion and authority.155 A recent seminar, attended by English and Scottish judges, which examined the principle of equal division of assets in the Family Law (Scotland) Act 1985, provides a revealing insight. Thorpe LJ, addressing his Scottish colleagues from the English side, suggested that:

"[i]t seems to me the social policy involved in this Act depends on the composition of the society in which it operates. How often do you deal with cases in excess of £100 million?"156

This association between lawyers and established wealth, as a factor conditioning legal policy, represents a continuation of existing traditions. It also answers a point in the transplants thesis. Watson has referred to Maitland's assessment that English law relating to husband and wife was in the past ‘an awful mess', and queries how this could serve particular interests in society.157 However, Pollock and Maitland noted the extent to which legal policy in this area accommodated upper classes and saw this trait perpetuated in the Married Women's Property Acts of the 19th Century.158 Maitland also suggested that ‘our whole constitutional law seems at times to be but an appendix to the law of real property'.159 Individualism underpins core concepts of English law - the trust, seisin and doctrine of estates.160 Lawyers and their clients have in the past forged a symbiotic alliance, in which both parties stood to gain from incremental reform: the former from the complexity and fragmentation of land law and the latter from maintaining established institutions.161 Current interest in new marital property systems as a means of saving costs, complements other contemporary initiatives to economize on legal aid (billed as ‘modernising justice') and indicates that the traditional influence of the legal profession is weakening.162

Finally, it can be noted that if there is some shift to community principles in English law (and it will be interesting to identify any divergence with the New Zealand system), differences will remain in other areas of marital property law. The somewhat bleak protection which English law affords domestic interests vis-à-vis creditors, is a further indicator of a market ethic and contrasts with the more benevolent approach to family property in New Zealand's homestead legislation.163

In contrast to English conservatism, innovation in New Zealand's family law has been matched in other spheres. New Zealand has maintained a leading position in relation to social security expenditure and has also been depicted as the ‘social laboratory of the world' in particular periods.164 Political development has been characterized by two traits - egalitarianism and conservatism - the former derived from early settlers from England with expectations of a more just society; the latter a product of colonialism, but with the absence of a traditional elite and integrated upper class.165 New Zealand's education system, it has been suggested, has acted as a powerful equalizing force and income differentials have remained among the lowest in the world.166

The process of reform and structure of family law in England and New Zealand are compatible with differences in political culture and institutions. Quantification of these differences and similarities may provide a rationalization for the transplants thesis, but analysis of political economy will establish the potential for assimilation of legal policy.

6. Conclusion: An Institutional Perspective on Comparative Family Law

The evolution of family laws in developed countries has been linked to changes in social and economic structure.167 Watson cites the assessment that ‘[s]ocieties largely invent their constitutions, their political and administrative systems, even in these days their economies; but their private law is nearly always taken from others'.168 Without denying the impact of factors such as industrialization or the imitation of foreign models in law reform,169 the argument in this article is that political priorities and ideology exert a significant influence on transplantation and convergence in the field of family law.170

There is no shortage of evidence to support Kahn-Freund's proposition, noted above, that ‘any attempt to use a pattern of law outside the environment of its origin continues to entail the risk of rejection'.171 However, narrow versions of mirror theories must be qualified, in that a particular law can operate effectively in different political environments. In addition, Kahn-Freund's assertion that knowledge of the ‘power structure' of one jurisdiction, if a similar law is to be imitated or adopted elsewhere, also appears misconceived.172

If the necessity for exceptional circumstances - Montesquieu's ‘grand hasard'173 - to enable the same law to operate in different systems is questionable, so also are strong versions of the transplants thesis. If the same legal policy can accommodate radically different institutional concerns, Watson's conundrum of similar laws in ‘very different'174 societies is solved. The fallacy appears to be that this phenomenon of similar laws is taken to exclude political influences on legal policy.175 In addition, it would appear that quantifying similarities and differences between societies contributes little to an understanding of the process of family law reform.

A recent analysis of comparative law from the standpoint of systems theory maintains that political considerations have become less important with developments such as the demise of totalitarian regimes.176 (Political and other social systems are differentiated in this analysis.177) Notwithstanding forecasts of the end of history, predictions of the end of politics may be premature. The position in the present article is that there is ample scope for laws applied to the family to reflect different principles of social organization, despite factors such as the fall of communism, European integration and the development of a global economy.

None of this should imply a normative position or comparative variant of the (perhaps now somewhat dated) critical legal studies school. The argument that English family law should adopt liberal solutions introduced elsewhere has, for example, been made in relation to same-sex relationships.178 From another source, it has been urged that the divorce debate should be ‘rooted firmly in the English context'.179 If this type of approach is to have any validity as an academic exercise, it must at least involve some examination of influences on, and implications, of what are essentially political positions.

One further perspective on comparative law as an academic subject can be noted in conclusion. This is the call for a ‘comparative jurisprudence' linked to ‘weak' versions of the transplants thesis.180 Once again, the phenomenon of similar laws in different cultures is noted, and once again there is the demotion of political institutions as a focus for investigation.181

"If legal rules can be readily transported from society to society; if the very same rules of contract can operate in the worlds of Julius Caesar and the mediaeval Popes, of Louis XIV, of Bismarck, and of the twentieth-century welfare state; if law changes, not in response to external pressures, but to the internal requirements of the legal system itself, then the idea of a Grand External Theory of Law - the idea of law reduced to sociology or economics or class politics - must be a fata morgana ..."182

From this position, the primary task for the comparatist is to examine the internal logic and philosophical content of another legal system so that there can be understanding of, and effective communication with, that system.183 The perspective on comparative family law outlined in the present article is more mundane. Laws regulating domestic relationships constitute systems of social organization. Legal theory must warrant consideration as a factor influencing the development of legal policy in this sphere, but so also must institutional interests, reinforced by a particular ideology and conditioned by social experience. Comparative family law as an academic discipline requires an analysis of political economy and institutions.


1 Reader in Law, London School of Economics and Political Science.

2 Council of Europe, Council of Europe. Achievements in the field of law: family law, (Council of Europe, 1997).

3 See, for example, European Convention on the Exercise of Children's Rights (1996).

4 Boele-Woelki,‘The Road Towards a European Family Law’, 1 Electronic Journal of Comparative Law (1997), 1 at 12. <http://law.kub.nl/ejcl/11/art11-1.html>

5 Resolution of 8/2/1994: [1994] O.J. C61/40-43. See R Wintemute, Sexual Orientation and Human Rights, (Clarendon Press, 1995), 134.

6 A Watson, Legal Transplants: An Approach to Comparative Law, (University of Georgia Press. 2nd ed., 1993). For ‘weak’ and ‘strong’ versions of the transplants thesis, see § 2, paragraphs 8, 11 and 12 below.

7 See, for example, HC Gutteridge, Comparative Law, (Cambridge UP, 1949), 31-32.

8 Glendon, ‘Irish Family Law in Comparative Perspective’, 9 Dublin University Law Journal (1987), 1.

9 AM Cohler et al. (eds.), The Spirit of the Laws, (Cambridge UP, 1989), 233-4.

10 Kahn-Freund, ‘Uses and Misuses of Comparative Law’, 37 Modern Law Review (1974), 1 at 13-17.

11 Ibid., 27.

12 Legrand, ‘European Legal Systems are not Converging’, 45 International and Comparative Law Quarterly (1996), 52; Legrand, ‘Against a European Civil Code’, 60 Modern Law Review (1997), 44.

13 Martiny, ‘Is Unification of Family Law Feasible or even Desirable?’, in A Hartkamp et al. (eds.), Towards a European Civil Code, (Kluwer , 2nd edn. 1998), Chap. 10 at 170.

14 Hondius, ‘Towards a European Civil Code’, in AS Hartkamp et al. (eds.), Towards a European Civil Code, (Martinus Nijhoff. 1st edn, 1994), Chap. 1 at 4.

15 Ewald, ‘Comparative Jurisprudence (II): The Logic of Legal Transplants’, 43 American Journal of Comparative Law (1995), 489 at 492. And see LM Friedman, A History of American Law, (Simon & Schuster, 1973), 595: ‘[i]f by law one means an organised system of social control, any society of any size and complexity has law. ... The law is a mirror held up against life. It is order: it is justice; it is also fear, insecurity, and emptiness; it is whatever results from the scheming, plotting, and striving of people and groups, with and against each other’.

16 MA Glendon, Abortion and Divorce in Western Law, (Harvard UP, 1987), 14, 40.

17 Part II, Family Law (Divorce) Act 1996; Ward, ‘Republic of Ireland’, in A Bainham (ed.), International Survey of Family Law: 1995, (Martinus Nijhoff, 1997), 287 at 288-297.

18 Markesinis, ‘Learning from Europe and Learning in Europe’, in BS Markesinis (ed.), The Gradual Convergence, (Clarendon Press, 1994), 1.

19 Markesinis, ‘Comparative Law - A Subject in Search of an Audience’, 53 Modern Law Review (1990), 1 at 12-13, 19.

20 Clive, ‘Marriage: An Unnecessary Legal Concept?’, in J Eekelaar and S Katz (eds.), Marriage and Cohabitation in Contemporary Societies, (Butterworths, 1980), 71 at 73.

21 MA Glendon, State, Law and Family, (North Holland, 1977), 25.

22 W Friedmann, Law in a Changing Society, (Penguin Books, 1972), 239.

23 K Zweigert and H Kötz, An Introduction to Comparative Law, (Clarendon Press, 1992), 294.

24 Ibid.

25 A Watson, Legal Transplants.

26 Ibid. 100-1.

27 Ibid. 101.

28 See Ewald, 43 American Journal of Comparative Law (1995), 491 et seq. 

29 Watson, Legal Transplants, 95, 107-8.

30 Ibid. 98.

31 Ibid. 107-8.

32 Ibid.

33 A Watson, Roman Law and Comparative Law, (University of Georgia Press, 1991), 97.

34 Watson, ‘Legal Change: Sources of Law and Legal Culture’, 131 University of Pennsylvania Law Review (1983), 1121 at 1135, 1138; Ewald, 43 American Journal of Comparative Law (1995), 508.

35 See § 1, paragraph 2.

36 See § 4, paragraph 5 below; Katz, ‘The United States’, in A Bainham (ed.), International Survey of Family Law 1996, (Kluwer, 1998) 487 at 501-2.

37 Case C-249/96 [1998] ECR I-621.

38 See however, Art. 13 EC, as amended by the Treaty of Amsterdam, which provides for elimination of discrimination on the grounds of sexual orientation. The potential for development in South Africa’s post-apartheid (1996) Constitution can also be noted. Art. 9(3) provides: ‘The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including ... sexual orientation ...’.

39 See Rubellin-Devichi, ‘France’, 30 Journal of Family Law (1991-2), 319 at 322; Dreyfus, ‘La Ve République et la Famille’, in R Ganghofer (ed.), Le Droit de la Famille en Europe, (Presses Universitaires de Strasbourg, 1992), 203 at 210.

40 See § 2, paragraph 8, above.

41 The Economist 23/11/1998; 9/1/1999.

42 Of 314 deputies voting in favour, 249 were socialists, 35 communists, 29 from the Radical, Citizens and Green Group and 1 RPR. The 251 deputies who voted against, included 137 RPR, 68 UDF and 41 DL: Le Monde 11/12/1998. See also Le Monde 1/2/1998 for public opposition.

43 BVerfG, 47 Neue Juristische Wochenschrift (1993), 3058.

44 The Guardian 22/6/1998.

45 The Economist 9/1/1999.

46 Baroness Young: Parliamentary Debates: Lords (1998), Vol. 592 col. 939.

47 Parliamentary Debates: Commons (1999), Vol. 323 cols. 909-921.

48 Sexual Offences (Amendment) Bill: see Parliamentary Debates: Commons (1999), Vol. 324 col. 20.

49 Ibid., col.22.

50 Home Office, Supporting Families, (The Stationery Office, 1998), 30.

51 MA Glendon, Abortion and Divorce in Western Law, 40.

52 Ibid., 14.

53 410 US 113 (1973).

54 MA Graber, Rethinking Abortion, (Princeton UP, 1996), 126.

55 González, ‘Spain’, in B Rolston and A Eggert (eds.), Abortion in the New Europe, (Greenwood Press, 1994), 230 at 235; Picontó-Novales, ‘Family Law and Family Policy in Spain’, in J Kurczewski and M Maclean (eds.), Family Law and Family Policy in the New Europe, (Dartmouth, 1997), 109 at 117-8. For the 1985 abortion reform, see 12 Annual Review of Population Law (1988), 37-8.

56 Financial Times 23/9/1998.

57 One proposal is for only one doctor to certify abortion, but support among Labour MP’s and some Conservative MP’s for abortion on request has been noted: The Times 20/1/1996; The Guardian 20/1/1996.

58 Schlegel, ‘Landmark in German Abortion Law’, 11 International Journal of Law, Policy and the Family (1997), 36 at 45-8.

59 The European 2/2/1998; Der Spiegel 26/1/1998.

60 Ministry of Health and Social Affairs, The Swedish Abortion Act (Ministry of Health and Social Affairs, 1995); SOU 1989:57 (English Summary), 125-131 at 130.

61 Bradley, ‘Equality and Patriarchy: Family Law and State Feminism in Finland’, 26 International Journal of the Sociology of Law (1998), 197 at 211.

62 See § 2, paragraph 6, above.

63 D. Bradley, Family Law and Political Culture, (Sweet & Maxwell, 1996), 64-74.

64 Rees v UK [1987] 9 E.H.R.R. 56; Cossey v UK [1991] 13 E.H.R.R. 622.

65 Sheffield and Horsham v UK [1999] 27 E.H.R.R. 163.

66 Human Rights Act 1998.

67 Family Policy Division Newsletter (No 1), 4.

68 See Parliamentary Debates: Lords (1977-80), Vol. 400 col. 733; and § 5, paragraph 6, below.

69 Bradley, Family Law and Political Culture, 67.

70 See § 2, paragraphs 6 and 7, above.

71 Law Commission, Facing the Future: A Discussion Paper on the Ground for Divorce, (HMSO, 1988), Part IV.

72 Lord Chancellor’s Department, Looking to the Future, (HMSO, 1993), v; Lord Chancellor’s Department, Looking to the Future, (HMSO, 1995), iii-iv.

73 Eekelaar, ‘The Family Law Bill’, 26 Family Law (1996), 45.

74 Sundberg, ‘Marriage or no Marriage’, 20 International and Comparative Law Quarterly (1971), 223; Sundberg, ‘Recent Changes in Family Law’, 23 American Journal of Comparative Law (1975), 34.

75 See § 5, paragraphs 6-8, below.

76 Law Commission, Facing the Future: A Discussion Paper on the Ground for Divorce, (1988), 32.

77 Ibid.; Law Commission, Family Law: The Ground for Divorce, (HMSO, 1990), 16-20.

78 S1 Family Law Act 1996.

79 See § 2, paragraph 5, above.

80 W Holdsworth, A History of English Law, (Methuen, 1942), Vol. 3 at 525.

81 F Pollock and FW Maitland, The History of English Law, (Cambridge UP, 1898), Vol. II at 402.

82 Holdsworth, A History of English Law, Vol. 3 at 525.

83 Ibid., 524.

84 AWB Simpson, A History of the Land Law, (Clarendon Press, 1986), 3.

85 JV Beckett, The English Aristocracy, (Blackwell, 1986), Chap. 2.

86 E Spring, Law, Land, & Family, (University of North Carolina Press, 1993), 144.

87 Holdsworth, ‘The Reform of the Land Law’, in AL Goodhart & HG Hanbury (eds.), Essays in Law and History, (Clarendon Press, 1946), 112-3; 121.

88 Holdsworth, A History of English Law, 173-4; First Report of the Real Property Commissioners, (Parliamentary Papers, 1829), Vol. X, 6,7.

89 AV Dicey, Lectures on the relation between law and public opinion, (Macmillan, 1948), 388-9.

90 Ibid. 395.

91 Dicey, ‘The Paradox of the Land Law’, 21 The Law Quarterly Review (1905), 221-232.

92 Royal Commission on Marriage and Divorce, (HMSO, 1956), 176-7.

93 Parliamentary Debates: Commons, (1968-9), Vol. 776 cols. 831-9; 894-6.

94 Law Commission, Family Law: Family Property Law, (Law Commission, 1971), Part V.

95 Law Commission, First Report on Family Property, (HMSO, 1973), 18-19.

96 Parliamentary Debates: Lords, (1982-3), Vol. 437 col. 661.

97 Law Commission, Family Law: Matrimonial Property, (HMSO, 1988); Law Commission, Annual Report 1993, (HMSO, 1994), 46.

98 See § 2, paragraph 1, above.

99 Graue ‘German Law’, in A Kiralfy (ed.), Comparative Law of Matrimonial Property, (Sijthoff, 1972), 114 at 116.

100 Ibid.

101 Initial Report of the United Kingdom under the UN Convention on the Elimination of all forms of Discrimination Against Women, (Foreign and Commonwealth Office, 1987), 123, 126. For the Family Law (Scotland) Act 1985, see EM Clive, The Law of Husband and Wife in Scotland, (W Green, 1996), 443-4; also § 5, paragraphs 10-14, below. The scope for variation under the Convention on the Rights of the Child has also been noted in academic commentaries: see King, ‘Children’s Rights as Communication: Reflections on Autopoietic Theory and the United Nations Convention’, 57 Modern Law Review (1994), 385 at 395-398; Freeman ‘The Convention: An English Perspective’, in MDA Freeman (ed.), Children’s Rights: A Comparative Perspective, (Dartmouth, 1996), 93.

102 See § 2, paragraph 10, above.

103 See ibid.

104 WG Wagner, Marriage, Property and Law in Late Imperial Russia, (Clarendon Press, 1994), 66.

105 Semidyorkin, ‘Family Law Reform in Russia after the October Revolution’, 9 Journal of Legal History (1988), 87; AY Vyshinsky, The Law of the Soviet State, (Greenwood Press, 1948), 590.

106 Johnson, ‘Matrimonial Property in Soviet Law’, 16 International and Comparative Law Quarterly (1967), 1106 at 1107.

107 Hazard, ‘Matrimonial Property in the U.S.S.R.’, in WF Friedmann (ed.), Matrimonial Property Law, (Stevens, 1955), 210 at 210.

108 See § 3.D, paragraph 1, above.

109 WZ Goldman, Women, The State and Revolution, (Cambridge UP, 1993), Chap. 1; also Antokolskaya, ‘The 1995 Russian Family Code’, 22 Review of Central and East European Law (1996), 635 at 640.

110 Goldman ibid., 194-6; 213; Hazard, in WF Friedmann (ed.), Matrimonial Property Law, 211.

111 Khazova, ‘The New Codification of Russian Law,’ in J Eekelaar and T Nhlapo (eds.), The Changing Family, (Hart Publishing, 1998), 73 at 74.

112 Semidyorkin, 9 Journal of Legal History (1988), 96.

113 R Phillips, Putting Asunder, (Cambridge UP, 1988), 531.

114 Ibid.

115 852 P.2d 44 (Haw. 1993); 23 Family Law Reporter 2001 (10/10/1996).

116 Brown, ‘Competitive Federalism and Legislative Incentives to Recognise Same-Sex Marriage in the USA’, in W Bratton et al. (eds.), International Regulatory Competition and Co-ordination, (Clarendon Press, 1996), 257 at 257. Note, however, opposition to same-sex marriage on a motion in the 1998 Congressional Elections.

117 The registered partnership law in force on 1/1/1998 is not restricted to homosexuals and the method of conferring rights differs from the Scandinavian model: see Schrama, ‘Registered Partnership in the Netherlands - A solution for other (post-communist) legal systems’, (Unpublished paper: ISFL Conference, Prague 27-29 June 1998); also Heide-Jørgensen, ‘An Expansion of Fundamental Rights or an Erosion of Traditional Values? A Review Essay’, 3 Maastricht Journal of European and Comparative Law (1996), 184 at 193-6; Forder, ‘The Netherlands’, in A Bainham (ed.), International Survey of Family Law 1995, 359 at 360-1; Waaldjik, ‘The Legal Situation in the Member States’, in A Clapham (ed.), Homosexuality: A European Community Issue, (Martinus Nijhoff, 1993), 71 at 97.

118 The Dutch Commission reported in November 1997 with a majority in favour of civil marriage: the (then) government decided against this in February 1998, but approved in principle adoption of Dutch, but not foreign children: see Schrama ‘Registered Partnership in the Netherlands - A solution for other (post-communist) legal systems’, (Unpublished paper: ISFL Conference, Prague 27-29 June 1998), and for the possibility of further developments after the 1998 elections. I am also grateful to Paul Vlaardingerbroek, Tilburg University for information on recent developments.

119 Therborn,‘"Pillarization" and "Popular Movements"’, in FG Castles (ed.), The Comparative History of Public Policy, (Polity Press, 1989), 192; Davis, ‘Social Stratification in Europe’, in J Bailey (ed.), Social Europe, (Longman, 1992), 17 at 24.

120 See generally Bradley, Family Law and Political Culture, 258-261. Note also that comprehensive legislation on transsexualism was enacted in the Netherlands in 1985.

121 Ketting, ‘The Netherlands’, in Rolston and Eggert (eds.), Abortion in the New Europe, 173 at 180-1.

122 Enquist, ‘On the Art of Flying Backwards with Dignity’, in SR Graubard (ed.), Nordern: The Passion for Equality, (NUP,1986), 65 at 72.

123 Therborn, in FG Castles (ed.), The Comparative History of Public Policy, 205 et seq.

124 Ketting, in Rolston and Eggert (eds.), Abortion in the New Europe, 180.

125 Therborn, in FG Castles (ed.), The Comparative History of Public Policy, 216, 234.

126 Ibid., 204-217.

127 Ketting, in Rolston and Eggert (eds.), Abortion in the New Europe, 183.

128 Therborn, in FG Castles (ed.), The Comparative History of Public Policy, 219-227.

129 Ibid., 204; Ketting, in Rolston and Eggert (eds.), Abortion in the New Europe, 183.

130 Ketting ibid.; The Economist 24/1/1998.

131 Bradley, Family Law and Political Culture, 101-5. The 1997 Social Democratic Party Congress supported a review of legislation relating to parenthood and homosexuals and also supported same-sex adoption in principle. I am grateful to Martin Andreasson, Secretary RFSL for information. In Sweden, the abbreviated forms for civil marriage (in SFS 1987:1019) and partnership registration (in SFS 1994:1341) are largely identical, but the former provides: ‘The purpose of matrimony is the welfare of individuals and the perpetuation of society’; and the latter that ‘Registered partnership means that partners manifest to each other and the the surrounding world that they belong to each other... This registration grants you rights, but also entails obligations towards yourselves and society’. In addition, spouses are enjoined to ‘be mindful of your responsibility towards future generations’. For general developments in Scandinavia, see Lund-Andersen, ‘Cohabitation and Registered Partnership in Scandinavia’, in Eekelaar and Nhlapo (eds.), The Changing Family, 397-404.

132 See § 2, paragraph 10, above.

133 Watson, Legal Transplants, Chap. 11.

134 Ibid.74.

135 Ibid.

136 BD Inglis, Family Law, (Sweet & Maxwell, 1968), 5.

137 Eekelaar, ‘The Law Commission Reports on the Financial Consequences of Divorce’, 42 Modern Law Review (1982), 420 at 420.

138 Inglis, Family Law, 5-11.

139 AG v Family Court in Otahuhu [1995] 1 NZLR 603 at 612.

140 Compare S15 Marriage Act 1955 (New Zealand) and Marriage (Prohibited Degrees of Relationship) Act 1986 (England).

141 A divorce law similar to the Divorce and Matrimonial Causes Act 1857 (England) was introduced in New Zealand in 1867: for subsequent developments, compare the chronology in MJ McPherson, Divorce in New Zealand, (Massey University Social Policy Research Centre, 1995), Appendix One, with SM Cretney and J Masson, Principles of Family Law, (Sweet & Maxwell, 1997), 305-312. On the absence of cruelty as a ground in New Zealand; see Webb, ‘Breakdown versus Fault’, 14 International and Comparative Law Quarterly (1965), 194; Inglis, ‘The New Zealand Experiment in Divorce and Nullity’, 14 International and Comparative Law Quarterly (1965), 654. See also Scott v Scott [1913] AC 417 for the general principle that in England, matrimonial proceedings should be heard in public.

142 Watson, 131 University of Pennsylvania Law Review (1983), 1123.

143 GR Elton, The New Cambridge Modern History, (Cambridge UP, 1958), Vol. II Chap. VII.

144 See JH Baker, An Introduction to English Legal History, (Butterworths, 1990), 564-567; Phillips, Putting Asunder, 77-84; 133-95; 227-241; 412-422.

145 See WR Cornish, Law and Society in England, (Sweet & Maxwell, 1989), 384; CS Gibson, Dissolving Wedlock, (Routledge, 1994), Chaps 3 and 4; and also AH Manchester, Modern Legal History, (Butterworths, 1980), 377-9.

146 Cretney and Masson, Principles of Family Law, 312-7.

147 Law Commission, Family Law: The Ground for Divorce, 16-20.

148 S7 Family Law Act 1996.

149 Law Commission, Reform of the Grounds of Divorce, (HMSO, 1966), 18-20.

150 Dollamore, ‘Live Births in 1988’, 57 Population Trends (1989), 20 at 24.

151 PRH Webb et al., Family Law in New Zealand, (Butterworths. 1995), 667: compare the Family Law Reform Act 1987 (England).

152 See Barton, ‘Pre-marital Contracts and Equal Shares on Divorce’, 28 Family Law (1998), 423.

153 Bridge, ‘Reallocation of Property after Marriage Breakdown’, in M Henaghan and B Atkin (eds.), Family Law Policy in New Zealand, (OUP, 1992), 231 at 231.

154 The Guardian 2/2/1998.

155 Thorpe, ‘Dividing the Assets on Family Breakdown’, in R. Bailey-Harris (ed.), Dividing the Assets on Family Breakdown, (Jordan Publishing, 1998). See also Ancillary Relief Advisory Group Report to the Lord Chancellor (1998), Summary of Recommendations. For the government’s initial response, see Home Office, Supporting Families, (The Stationery Office, 1998), 37-38.

156 Ancillary Relief Advisory Group, Report to the Lord Chancellor, (1998), Appendix 3 at 20. Another reversal of long established principle is in prospect with recognition of marriage contracts. This would provide some protection for those with substantial assets: see Barton, 28 Family Law (1998).

157 Watson, 131 University of Pennsylvania Law Review (1983), 1140, quoting CHS Fifoot, Frederic William Maitland, (Harvard UP, 1971), 53.

158 Pollock and Maitland, The History of English Law, Vol. II at 402-3.

159 FW Maitland, The Constitutional History of England, (Cambridge UP, 1926), 538.

160 K Gray, Elements of Land Law, (Butterworths, 1993), 39, 62-3. And for the institutional significance of the doctrine of estates, see Gray, ‘The Idea of Property in Land,’ 15 at 28-30, in S Bright and J Dewar (eds.), Land Law: Themes and Perspectives, (OUP, 1998).

161 For commentary on and illustrations of this relationship, and of the success of lawyers in resisting reform, see Sugarman and Warrington, ‘Land law, citizenship and the invention of "Englishness"’, Chap.6, in J Brewer and S Staves (eds.), Early Modern Conceptions of Property, (Routledge, 1994), particularly 121-5; Spring, ‘Landowners, Lawyers and Land Law Reform in Nineteenth Century England’, 21 American Journal of Legal History (1977), 40; Dicey, 21 The Law Quarterly Review (1905), Cornish, Law and Society in England, Chap. 2 particularly 166-179; Offer, ‘The Origins of the Law of Property Acts 1920-5’, 40 Modern Law Review (1977), 505; also EH Burn (ed.), Cheshire and Burn’s Modern Law of Real Property, (Butterworths, 1994), 246-7 on the preservation of the statute De Donis Conditionalibus 1285. In addition, see the description of the lawyer, Tulkinghorn, in Charles Dickens, Bleak House.

162 Lord Chancellor’s Department, Modernising Justice, (1998).

163 Gray, Elements of Land Law, 604-6. Compare also developments in England and New Zealand in relation to trusts and unjust enrichment: ibid., 453-459.

164 A Davidson, Two Models of Welfare, (Almqvist & Wicksell, 1989), 1,2.

165 Ibid., 37.

166 Ibid.

167 Willekens, ‘Explaining Two Hundred Years of Family Law in Western Europe’, in H Willekens (ed.), Het gezinsrecht in de sociale wetenschappen, (Vuga uitgeverij B.V, 1997), 59.

168 Watson, Legal Transplants, 8, quoting SFC Milsom, Historical Foundations of the Common Law, (Butterworths. 1969), ix.

169 See Grossen, ‘The contribution of comparative law (or foreign law) studies to family law reform’, in G Hand and J McBride (eds.), Droit Sans Frontières: Essays in Honour of L. Neville Brown, (Birmingham, Holdsworth Club, 1991), 95 at 95-96.

170 See also Kahn-Freund’s review of Watson, Legal Transplants, 91 The Law Quarterly Review (1975), 292 at 293 on the application of the transplants thesis to public and criminal law; and Ewald, ‘The American Revolution and the Evolution of Law’, 42 American Journal of Comparative Law (1994) Supplement, 1-14 for its application to public law.

171 See § 2, paragraph 3, above.

172 Kahn-Freund, 37 Modern Law Review (1974), 12-13.

173 See Cohler et al. (eds.), The Spirit of the Laws, 8.

174 See § 2, paragraph 10, above.

175 See § 2, paragraphs 11-12, above for Watson’s ‘strong’ position on the influence of political factors on legal policy. The phenomenon of similar laws operating in different jurisdictions is examined in A Watson, Society and Legal Change, (Scottish Academic Press. 1977), at 106-111, primarily to refute narrow versions of mirror theories rather than acknowledge institutional influences. See also Watson, ‘Legal Transplants and Law Reform’, 92 Law Quarterly Review (1976), 79, which challenges Kahn-Freund’s point, noted in § 2, paragraph 3, above, about knowledge of institutional factors, rather than the importance of those factors themselves.

176 Teubner, ‘Legal Irritants: Good Faith in British Law’, 61 Modern Law Review (1998), 11 at 22.

177 Ibid.

178 Barton, ‘The Homosexual in the Family’, 26 Family Law (1996), 626 at 630.

179 Deech, ‘Divorce Law and Empirical Studies’, 106 Law Quarterly Review (1990), 229 at 243.

180 Ewald, ‘Comparative Jurisprudence (I): What was it Like to Try a Rat?’, 143 University of Pennsylvania Law Review (1995), 1189 at 1896, 1948; Ewald, 43 American Journal of Comparative Law (1995), 509.

181 Ewald, 143 University of Pennsylvania Law Review (1995), 1189 at 1938-9.

182 Ewald, 43 American Journal of Comparative Law (1995), 490.

183 Ewald, 143 University of Pennsylvania Law Review (1995), 1896-7, 1947-51, 2143.

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