Zwischen Konvergenz und Divergenz: Die CEFL-Prinzipien zum europäischen Familienrecht
Jahrgang 73 (2009) / Heft 2, S. 241-268 (28)
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Between Convergence and Divergence: The CEFL Principles of European Family Law Comparative law is an instrument to realise certain aims. Also in the case of the Commission of European Family Law (CEFL), the comparative research that has been undertaken since 2001 serves a specific purpose. The main objective of the CEFL, which represents 22 European jurisdictions, is the creation of a set of Principles of European Family Law that are thought to be the most suitable for the harmonisation of family law in Europe. CEFL's work is purely academic and involves finding, analysing and comparing rules and then formulating and presenting non-binding Principles. In doing so, the CEFL assists legislatures in their efforts to modernise family law legislation. This contribution starts with some preliminary remarks regarding the terminology which is used. Then CEFL's working method is briefly addressed by providing an explanation of the »six-step method« and the »five approaches«. In this respect, there is a connection to the working method of the international and regional organisations, especially the European Commission, that adopt international or regional instruments which are aimed at unifying or harmonising the law. These organisations also face the same problems which must be addressed by the CEFL in the drafting of its Principles. In that sense the work of organisations having legislative competence is comparable with the CEFL project. Subsequently, the main body of the article provides information as to how the CEFL built further upon convergence and how it coped with divergence in its Principles of European Family Law in the field of Divorce and Maintenance between Former Spouses (2004) and Parental Responsibilities (2007). It goes without saying that comparative research requires scientific precision. In this respect the CEFL has tried to meet the necessary standards. In particular, a great deal of consideration has been given to the explanation as to why a certain Principle has been adopted. In this process, differences have been directly confronted rather than being disregarded. It is for outside observers to determine whether the CEFL has succeeded in this endeavour. In doing so, it should be kept in mind that its Principles are not part of an institutional design, nor do they claim to produce anything beyond a frame of reference.