Any study of European Union law must be set within a theoretical framework. Accordingly, the aim of this and the following chapter is to establish just such a framework, laying the foundations for the subsequent examination of the concept of family and emerging family law of the Union. This chapter begins by offering a brief sketch of recent jurisprudential debates regarding the nature and future of European legal integration. This is an essential precursor to the subsequent section which proposes a human rights foundation for analysing concepts of family and as a basis for the Union's family law.

Positivism, pluralism and the jurisprudence of the European Union

During the previous decade or more, the impact of European integration on established jurisprudential paradigms has become ever more apparent. In simple terms, nothing really seems to fit any more. On the one hand, classical legal positivism, so dependent upon conceptions of unitary sovereignty, coherent systems, hierarchies and rules, suddenly appears to be hopelessly arcane. On the other, the more radical postmodern critique, whilst celebrating this apparent incoherence, rarely seems capable of answering the more pressing policy questions.

The aim of this section is to suggest that the way forward lies between these extremes, with a system of rules that is better able to address the questions of particularity and ‘otherness’ that underpin the postmodern critique and which moves away from the paradigms of positivism. This is a solution which caters to reality. The new Europe is very much a legalistic Europe.

The ‘dominant ideology of the family’ is that of a white, heterosexual, married couple, with children, all living under the same roof, where the husband is the main breadwinner and the wife the primary carer of children and other dependants. In other terminology, this is, of course, the traditional nuclear family. This is ‘the family’ which frames debates on families and family law and it is the ideal against which other family forms and practices are measured. It is also ‘the family’ which bears little comparison to the realities of family life in Europe today, yet it continues to exert significant force over judicial reasoning and legislative activity. This chapter examines, first, the dominant ideology of the family, before going on to outline the realities of family life, the new sociological explanations for changes in family practices and the new and emerging ideals of family life. It is argued that the European Union must embrace a more diverse, pluralist concept of family which should then form the basis for its regulation of families and emerging family law.

The dominant ideology of the family

The dominant ideology of the family reproduces stereotypes and norms for women, men and families, which may not reflect reality, but which frame discussion of issues and against which the legitimacy of individual claims are judged. As Diana Gittins suggests, the ideology of ‘the family’ has ‘influenced, and continues to influence, social policy and the ways in which laws are formulated and implemented for the population overall’.

When this book was first conceived, my aim was to analyse the concept of family employed in a number of different areas of substantive Community law. The thought of writing a book which also included a detailed discussion of the family law of the European Union never entered my head. If it had, I should have thought it would be a very short book indeed. However, in the late 1990s, when carrying out research for an article on the developing concept of family in European Union law, I came across references to family law in discussions regarding the prospects for a European civil code. The deeper I delved, the more astonished I became. Not only was there already a Matrimonial Convention, but also a proposal to Communitarise it in the form of a regulation. I was very surprised that I had not come across this material before then. Where was the discussion of these extremely important, and potentially very controversial matters, not just in the academy but in public debates more generally? While academic scholarship has caught up with these developments, public debate remains scandalously absent. Indeed, in reality, it is only scholarship in common law countries and in the English language that has ‘caught up’; there has been a long and detailed discussion of family law harmonisation in other European jurisdictions.

When writing, then, in 1999, about the possible creation of a family law for the European Union, I feared I was being too conspiratorial in suggesting such developments.

Unity and diversity. That is indeed what Europe has been and should be about. At present, however, there is a grand debate taking place within the Union over just this theme. To be specific, the question is whether or not we should unify the private laws of Europe, effectively erasing the present diversity and pluralism. That is the extreme end of the debate, with more nuanced approaches focusing on harmonisation, as distinct from unification, and some speaking of a reform of ‘legal science’ such that harmonisation and perhaps unification will come about organically through the work of scholars, teachers and judges. While these debates were initially confined to the fields of tort, contract and commercial law, they are now a feature of family law discussions.

Despite the differences, what remains common to each of these approaches is the belief that some form of greater commonality, on a continuum from harmonisation to unification, is to be encouraged and welcomed. Existing shared norms, in the form of universal human rights principles, are not enough, but are indeed merely the basis, and for some the rationale, for greater assimilation.

The concept of parenthood, the nature of parenting, even who is a parent, are all contested ideas. Many disciplines are grappling with changing realities in relation to parenting, attempting to map developments, contextualise them and examine their effects; the prospects for the future are analysed and prophecies made. In the context of European Union law, however, such rigorous and complex theoretical analyses are largely absent. Partly this is due to the limited competence of the Union to act in the controversial terrain of parenthood. Mostly, however, it is due to a fundamental theoretical failing, to an ignorance of the wider panoply of contexts and circumstances which affect parenthood today. Thus, to the extent that the concept of parenthood, and particularly ideas about motherhood, have come within the competence of Union law and before the Court of Justice, a remarkably narrow and traditional approach has been taken, premised on the ‘dominant ideology of the family’ discussed in chapter 2.

It is imperative that a reconsideration of this limited, atheoretical and apolitical approach to parenthood takes place. The Union must move away from a traditional ideology of motherhood and fatherhood. For law and policy to reproduce, legitimise and promote gender distinctiveness in parenting is to entrench existing patterns which are often discriminatory. The Union must embrace more modern approaches to parenting based on principles of gender neutrality.

In 2000, the European Union adopted its first measure in the field of family law. This was an historic moment. The European Union had crossed the Rubicon: a legal measure had been adopted in a field of law so precious to individuals, families, politicians and so significant in terms of national power and sovereignty. Yet there was no fanfare, nor public protest. Indeed, hardly anyone knew this had happened, even family lawyers. This probably remains the case, even amongst scholars of European Union law. Why? This was because Regulation 1347/2000 on the recognition and enforcement of judgments in matrimonial matters had been adopted as part of a raft of measures designed to facilitate ‘judicial co-operation’ between states in an effort to create an ‘area of freedom, justice and security’. It sounds as anodyne as it was portrayed. While the focus – the fanfares and the protests – are on the immigration and asylum measures of the area of freedom, justice and security, the supposedly more technical field of judicial co-operation gets little attention. This is a terrible error.

The adoption of the Regulation, known as Brussels II, was only the first of a number of family law measures, and for some it represents the first step towards a harmonised or even unified family law for the member states of the European Union.

The European Union has yet to create a fully fledged children's policy. It is, at present, a policy of ‘bits and pieces’ with no cohering theme or approach. Indeed, there has been little reflective thinking about children at all. In this policy vacuum, it is perhaps not surprising that the dominant ideology of the family, and children's roles within ‘the family’, has thoughtlessly shaped Union law and policy. Nonetheless, novel and more progressive ways of thinking about children, and their rights and interests, are beginning to be reflected in Union law. This chapter considers first these newer ways of thinking about children's rights and interests, before going on to examine the Union's laws and policies relating to children. The final section examines how the Union's Charter of Fundamental Rights and a rights-based approach to children's law and policy provide the most appropriate way forward for the Union.

Family ideology and children's rights

The dominant ideology of the family prescribes specific familial roles not just for men and women, but also for children. This is the hierarchical, private family in which the concept of parental autonomy affords parents sole charge over their children. In such a conceptualisation, the Enlightenment view of the child, as ‘becoming’ an adult, rather than simply ‘being’ a child, remains dominant. The paradigmatic child is the dependent child, shielded from the public realm by rightfully protective parents: they are projects for adults to shape.

This chapter offers a vision of negotiation and compromise in domestic relations litigation, and especially in child support matters, that is drawn from my own experience as the Chief Justice of the Michigan Supreme Court from 2001–2004. In that capacity, I shared with our governor the administrative oversight responsibility for Michigan's child support enforcement system.

I became Michigan's Chief Justice in January 2001. My own initial introduction to child support law was sudden and a bit frightening. The first day on my new job brought word from the state budget director that the Judiciary should expect significant budget cuts because the federal government had penalized Michigan $39 million for failing to comply with a federal mandate to create a statewide computerized child support enforcement system. Michigan, a state whose population barely tops 10 million, currently has more than 800,000 open cases involving children who are entitled to receive support from noncustodial parents pursuant to orders issued in divorce and paternity cases. The penalties for not complying with the federal mandate would have increased exponentially in subsequent fiscal years. Although we had many excuses and explanations, we had exhausted the federal government's patience and so faced crippling economic penalties if we did not create a functioning statewide system almost from scratch in just two years, by September 30, 2003.

We did it, and the federal certification authorities later dubbed our effort the “Michigan Miracle” because no other state had been able to create a certification-worthy system in so little time.

The Principles' child support provisions try to respect and give weight to the interests of the parents while minimizing damage to the child or children at issue. The result is an impressive, balanced treatment in an area fraught with difficulty. This chapter focuses on one specific issue which helps illustrate some of the competing interests and rationales which are involved when decisions about child support must be made – namely, the conditions under which the ALI and various jurisdictions in the United States believe income should be imputed to a stay-at-home parent.

A number of important, competing considerations are at issue when deciding income attribution questions. As a general matter, jurisdictions believe that children should not be put at a disadvantage merely because their parents are no longer living together. They also believe that where practicable all parents should maintain close relationships with and contribute to the support of their children. In many instances, these goals conflict and compromises must be reached. It is not surprising, then, that different jurisdictions reach different conclusions about how to weigh these sometimes competing considerations and thus have adopted different policies with respect to when income should be attributed to a stay-at-home parent.

One confusing aspect of the ALI proposal is that the reasons offered in support do not fit tightly with the drafters' recommendations. While sensible and legitimate, the considerations articulated by the drafters support both the policy proposed and a number of other policies.

This chapter analyzes Chapter 7 of the Principles, which deals with agreements. It contrasts the ALI's treatment of premarital, marital, and separation agreements with both current doctrine and arguments for respecting greater private ordering regarding marriage. While largely agreeing with the ALI's approach, this chapter urges an approach somewhat more respectful of party choice and more sensitive to the variety of marriage-related agreements.

The current treatment of premarital, marital, and separation agreements reflects a view that, in a world where entrance into marriage and exit from it is largely within the control of the partners, it seems consistent to allow the partners some choice regarding the nature of the marriage they decide to enter, or not to exit. Part I of this chapter deals with premarital agreements; Part II with marital agreements; and Part III with separation agreements. Each part begins with an overview of current law, followed by a summary of the Principles' position, and an evaluation of that position.

Premarital Agreements

Overview and Current Doctrine

Premarital agreements, also called “antenuptial” and “prenuptial” agreements, are entered into when marriage is imminent, to settle, create, or modify certain rights between the parties during their marriage, upon the death of one of the partners, or upon divorce. The following discussion focuses on premarital agreements meant to modify the rights of the spouses upon divorce.

This Chapter evaluates two law reform initiatives in North America: the Principles and the 2001 Canadian Law Commission's report entitled “Beyond Conjugality: Recognizing and Supporting Close Personal Relationships” (“Beyond Conjugality”). The Principles move “away from the idea that there can be public standards guiding marriage and parenthood. Instead it says that the central purpose of family law should be to protect and promote family diversity.” In particular, the Principles introduce rules pertaining to pre-marital agreements and domestic partnerships that undermine the very essence of marriage and present it as one of many equally valid family forms.

In this regard, the Principles follow in the footsteps of Beyond Conjugality, which proposes a revolutionary reconstitution of family law that would make State marriage laws superfluous. Beyond Conjugality promotes a registration scheme for all close adult relationships, which would include, for example, a person with disabilities and her care giver. Beyond Conjugality describes “the possibility of removing the state from the marriage business” as “worthwhile.” It models the registration scheme on marriage providing elements of both contract and status and then opens up registration to numerous types of relationships which are promoted as equally worthy of protection and assistance from the State.

The chapter is divided into three parts. Part I briefly sets the groundwork for a comparative analysis of the Principles and Beyond Conjugality.