No. 35




The Sagrada Familia or a glass house: What is the future of international family law?

08 June 2017


RiTo No. 35, 2017

  • Kristi Joamets

    Kristi Joamets

    Tallinn University of Technology, Institute of Law, Lecturer

The legislation must take into account the changing nature of the society.

Family law is a great example of this. Today, the national family law of every Member State can no longer develop separately from the others. Different values can no longer justify the differences in Member States’ family law. The society has changed and the common European values have become more important than the Member States’ previous perceived values. Family law is being harmonised by developing cooperation between Member States, since cross-border family relations require harmonised norms. The rulings of the European Court of Justice and the European Court of Human Rights also give a certain stimulus for that. It has become clear on the European level that family law is moving gradually towards the core of the EU law. The national features of family law have been partially replaced by international principles. In particular, the European family law is seen as the family law of the Member State. Moreover, the European family law refers, in this context, to the values enshrined in the EU primary law rather than the norms adopted by a specific EU institution through relevant legal acts. The question of refugees has brought new focus to the questions of multiculturalism, human rights, values and religion, as well as to the relations between these. This has led to an understanding that the fragmentation between the values of individual states is a weakness. Moreover, the development of technology absolutely demands a change in the values. The legislation has to accommodate the types of social relations that will exist in the future. The confines of family law are changing. It is no longer merely a part of civil law, but tightly interwoven with different branches of law and institutions, including the public ones. International private law is no longer enough to determine the national policies. Relations based on family law should be treated differently than ordinary obligations. If international family law is seen as part of international law which is governed both by the general principles of international law as well as certain branch specific principles, any experienced legal practitioner will understand what it means for achieving a suitable applicable norm in practice. Different principles and norms will inevitably integrate. Therefore, the EU family law can be described as a glass house. The walls of the house reflect the faces of the Member States, but these can only be seen from a very short distance. From afar, it just looks like a solid glass wall. The reflection of a face is no longer important for the external observer. Only the Member State itself cherishes the reflection as a memory of something significant.