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22 Child & Fam. L. Q. 397 (2010)
Harmonisation of Substantive Family Law in Europe: Myths and Reality

handle is hein.journals/chilflq22 and id is 405 raw text is: 397 Harmonisation of substantive family law in Europe: myths and reality Masha Antokolskaia* Since the Commission on European Family Law was established in 2001, harmonisation of substantive family law in Europe has been the subject of heated debate. The impossibility and undesirability of harmonising family law was long taken for granted. This scepticism was rooted in what was referred to as the 'cultural constraints argument', which states that differences between national family laws are embedded in unique and cherished national cultural heritages, that this cultural and historical diversity is unbridgeable and that, therefore, family laws do not converge spontaneously and cannot be harmonised deliberately Only since the late 1990s has the attitude towards harmonisation of family law gradually become more positive. This article addresses three issues. First, the merits of the basic assumptions of the cultural constraints argument - the embedment of family law in a unique, homogeneous and unchangeable national culture - will be analysed on the basis of the development of family law in Europe since the Enlightenment. Secondly attention will be devoted to existing European family law - an incoherent body of binding rules developed ad hoc through international conventions, EU legislation and European Court of Human Rights (ECtHR) and European Court of Justice (ECJ) case law. Last but not least, the harmonisation activities of the CEFL aimed at developing a more coherent body of European family law will be discussed using the Principles on Divorce as an example. In conclusion some speculations regarding the future outlook for harmonisation of family law in Europe will be made. INTRODUCTION Since the Commission on European Family Law was established in 2001, harmonisation of substantive family law in Europe has been the subject of heated debate. Peculiarly enough, harmonisation seems to owe its popularity more to its opponents than to its proponents. While the proponents are mostly rather modest and sober about the prospects for and effects of such harmonisation,' the opponents often ascribe to it a sweeping, perilous impact.2 The idea of harmonising family law does not stand alone. Academic interest in the issue of harmonising private law in Europe has been evolving from the start of the 1980s, since when various international projects Professor of Private and Family Law at the VU University Amsterdam, Netherlands, and a member of the Commission on European Family Law. A version of this paper was delivered at the Agenda-Setting Workshop on Family, Regulation and Society funded by the AHRC, ESRC, Nuffield Foundation and Family Law Bar Association, organised by the Universities of Exeter, Bath, Bristol and Cardiff and held on 15-16 March 2010 at the Nuffield Foundation, London. See, for instance, K. Boele-Woelki, 'The principles of European family law: aims and prospects' (2005) 2 Utrecht Law Review 160 (hrrp://www/utrechtlawreview.org >Volume 1> issue 2 (December) 2005). 2 See, for instance, P Legrand, Against a European Civil Code' (1997) Modern Law Review 44.

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