Principles of a Modern Family Law from a Comparative Perspective - 10.1628/003372507782419444 - Mohr Siebeck

Ingeborg Schwenzer

Principles of a Modern Family Law from a Comparative Perspective

Grundlinien eines modernen Familienrechts aus rechtsvergleichender Sicht

Jahrgang 71 () / Heft 4, S. 705-728 (24)

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In the last forty years, fundamental changes in values and attitudes to marriage and family have taken place and have led to revolutionary socio-demographic developments. Lawmakers in individual states have heeded these developments by reforming all areas of family law, such that »family law« can no longer be understood according to its original meaning; a new meaning has taken its place. From a comparative law perspective, three basic principles can be derived from modern family law: the principle of non-interference of the state, the principle that no one can escape responsibility, and the primacy of the best interests of the child. Through consistently implementing these principles, this present text develops a new family law.With respect to partnerships, a clear distancing from all notions of status can be observed, namely in placing marriages and partnerships of a certain duration and stability on equal footing. Furthermore, it follows from the principle of non-interference of the state not only that marriage must be opened for same-sex couples, but also that married couples are entitled to make decisions concerning the continuation, or otherwise, of their marriage. Regarding the dissolution of partnerships, partnership-related benefits and detriments are to be divided within the scope of an overarching concept of »financial relief«; compensatory payments will only be made where exceptional circumstances are shown to exist.In the law of parent and child, status has nowadays similarly ceased to play a role. Legal parentage is increasingly developing towards a notion of »intentional parentage«. Furthermore, adoption is also becoming increasingly distanced from notions of status. Parental responsibility is exclusively associated with the best interests of the child and can also be exercised by third parties. Finally, changes can be observed in the areas of child and family maintenance.

Ingeborg Schwenzer ist o. Professorin für Privatrecht an der Universität Basel.