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
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
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
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
"... 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
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
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
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
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
(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
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
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
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
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
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,
of Europe. Achievements in the field of law: family law, (Council of
3 See, for example,
European Convention on the Exercise of Children's Rights (1996).
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:  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
9 AM Cohler et
al. (eds.), The Spirit of the Laws, (Cambridge UP, 1989), 233-4.
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
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,
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.),
Survey of Family Law: 1995, (Martinus Nijhoff, 1997), 287 at 288-297.
Learning from Europe and Learning in Europe, in BS Markesinis (ed.),
Gradual Convergence, (Clarendon Press, 1994), 1.
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
21 MA Glendon,
Law and Family, (North Holland, 1977), 25.
22 W Friedmann,
in a Changing Society, (Penguin Books, 1972), 239.
23 K Zweigert
and H Kötz, An Introduction to Comparative Law, (Clarendon
Press, 1992), 294.
25 A Watson, Legal
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.
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
 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 Africas 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
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
Monde 1/2/1998 for public opposition.
43 BVerfG, 47
Juristische Wochenschrift (1993), 3058.
44 The Guardian
45 The Economist
46 Baroness Young:
Parliamentary Debates: Lords (1998), Vol. 592 col. 939.
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,
Families, (The Stationery Office, 1998), 30.
51 MA Glendon,
and Divorce in Western Law, 40.
52 Ibid., 14.
53 410 US 113
54 MA Graber,
Abortion, (Princeton UP, 1996), 126.
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.
57 One proposal
is for only one doctor to certify abortion, but support among Labour MPs
and some Conservative MPs 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
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
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,
Law and Political Culture, (Sweet & Maxwell, 1996), 64-74.
64 Rees v UK
 9 E.H.R.R. 56; Cossey v UK  13 E.H.R.R. 622.
and Horsham v UK  27 E.H.R.R. 163.
66 Human Rights
67 Family Policy
Division Newsletter (No 1), 4.
68 See Parliamentary
Debates: Lords (1977-80), Vol. 400 col. 733; and § 5, paragraph
69 Bradley, Family
Law and Political Culture, 67.
70 See §
2, paragraphs 6 and 7, above.
71 Law Commission,
the Future: A Discussion Paper on the Ground for Divorce, (HMSO,
1988), Part IV.
72 Lord Chancellors
Department, Looking to the Future, (HMSO, 1993), v; Lord Chancellors
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,
the Future: A Discussion Paper on the Ground for Divorce, (1988),
77 Ibid.; Law
Commission, Family Law: The Ground for Divorce, (HMSO, 1990), 16-20.
78 S1 Family Law
79 See §
2, paragraph 5, above.
80 W Holdsworth,
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.
History of English Law, Vol. 3 at 525.
83 Ibid., 524.
84 AWB Simpson,
History of the Land Law, (Clarendon Press, 1986), 3.
85 JV Beckett,
English Aristocracy, (Blackwell, 1986), Chap. 2.
86 E Spring, Law,
Land, & Family, (University of North Carolina Press, 1993), 144.
The Reform of the Land Law, in AL Goodhart & HG Hanbury (eds.), Essays
in Law and History, (Clarendon Press, 1946), 112-3; 121.
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),
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.
Debates: Commons, (1968-9), Vol. 776 cols. 831-9; 894-6.
94 Law Commission,
Law: Family Property Law, (Law Commission, 1971), Part V.
95 Law Commission,
Report on Family Property, (HMSO, 1973), 18-19.
Debates: Lords, (1982-3), Vol. 437 col. 661.
97 Law Commission,
Law: Matrimonial Property, (HMSO, 1988); Law Commission,
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.
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, Childrens 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.), Childrens Rights: A Comparative
Perspective, (Dartmouth, 1996), 93.
102 See §
2, paragraph 10, above.
103 See ibid.
104 WG Wagner,
Property and Law in Late Imperial Russia, (Clarendon Press, 1994),
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.
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,
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,
The New Codification of Russian Law, in J Eekelaar and T Nhlapo (eds.),
Changing Family, (Hart Publishing, 1998), 73 at 74.
9 Journal of Legal History (1988), 96.
113 R Phillips,
Asunder, (Cambridge UP, 1988), 531.
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
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.
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
120 See generally
Bradley, Family Law and Political Culture, 258-261. Note also that
comprehensive legislation on transsexualism was enacted in the Netherlands
The Netherlands, in Rolston and Eggert (eds.), Abortion in the New
Europe, 173 at 180-1.
On the Art of Flying Backwards with Dignity, in SR Graubard (ed.),
Nordern: The Passion for Equality, (NUP,1986), 65 at 72.
in FG Castles (ed.), The Comparative History of Public Policy, 205
in Rolston and Eggert (eds.), Abortion in the New Europe, 180.
in FG Castles (ed.), The Comparative History of Public Policy, 216,
126 Ibid., 204-217.
in Rolston and Eggert (eds.), Abortion in the New Europe, 183.
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,
130 Ketting ibid.;
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
132 See §
2, paragraph 10, above.
Legal Transplants, Chap. 11.
136 BD Inglis,
Law, (Sweet & Maxwell, 1968), 5.
The Law Commission Reports on the Financial Consequences of Divorce,
42 Modern Law Review (1982), 420 at 420.
138 Inglis, Family
139 AG v Family
Court in Otahuhu  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  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,
New Cambridge Modern History, (Cambridge UP, 1958), Vol. II Chap. VII.
144 See JH Baker,
Introduction to English Legal History, (Butterworths, 1990), 564-567;
Phillips, Putting Asunder, 77-84; 133-95; 227-241; 412-422.
145 See WR Cornish,
and Society in England, (Sweet & Maxwell, 1989), 384; CS Gibson,
Dissolving Wedlock, (Routledge, 1994), Chaps 3 and 4; and also AH Manchester,
Legal History, (Butterworths, 1980), 377-9.
146 Cretney and
Masson, Principles of Family Law, 312-7.
147 Law Commission,
Law: The Ground for Divorce, 16-20.
148 S7 Family
Law Act 1996.
149 Law Commission,
of the Grounds of Divorce, (HMSO, 1966), 18-20.
Live Births in 1988, 57 Population Trends (1989), 20 at 24.
151 PRH Webb
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
153 Bridge, Reallocation
of Property after Marriage Breakdown, in M Henaghan and B Atkin (eds.),
Law Policy in New Zealand, (OUP, 1992), 231 at 231.
154 The Guardian
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 governments initial response, see
Home Office, Supporting Families, (The Stationery Office, 1998),
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
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,
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.),
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 Burns 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 Chancellors
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,
Models of Welfare, (Almqvist & Wicksell, 1989), 1,2.
165 Ibid., 37.
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-Freunds 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.
37 Modern Law Review (1974), 12-13.
173 See Cohler
al. (eds.), The Spirit of the Laws, 8.
174 See §
2, paragraph 10, above.
175 See §
2, paragraphs 11-12, above for Watsons 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-Freunds point,
noted in § 2, paragraph 3, above, about knowledge of institutional
factors, rather than the importance of those factors themselves.
Legal Irritants: Good Faith in British Law, 61 Modern Law Review
(1998), 11 at 22.
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
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
of Pennsylvania Law Review (1995), 1189 at 1938-9.
182 Ewald, 43
Journal of Comparative Law (1995), 490.
183 Ewald, 143
of Pennsylvania Law Review (1995), 1896-7, 1947-51, 2143.
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