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7719 results in Intersentia

Page 329 of 386

  • Chapter 3 - Testing the Alleged Lack of Federalism

  • Carlos Gómez-Jara Díez
  • Book:
    European Federal Criminal Law
    Published by:
    Intersentia
    Published online:
    26 November 2017
    Print publication:
    12 October 2015, pp 137-174

  • Summary

    INTRODUCTION

    The preceding chapters have shown the gradual establishment of a federal dimension in the area of EU criminal law. Still, many would argue that this approach reads too much into the Lisbon Treaty provisions and the recent communications of the EU institutions. It is true that only recently have EU authorities used the word “federal” to refer to actual developments regarding criminal law. Therefore, it is worth examining whether current, routinely applied European instruments contain federalizing elements. The aim, as throughout the book, is to call attention to the fact that the more reluctant the EU is to clearly acknowledge existing European federal interests that deserve EU federal criminal law protection, the more an ineffective federalization will be taking place.

    The analysis starts by examining the hallmark of EU criminal law: the European Arrest Warrant. Initially devised to simply replace existing extradition proceedings between Member States, it has a far broader impact. A comparative approach shows that this instrument is truly federal in nature. Moreover, the current EU system is more federal (in horizontal federalism terms) than its US counterpart, interstate extradition. The mandatory nature and the extensive catalogue of offenses to which the EAW applies stands in contrast to the US system. Reluctance to acknowledge the federal nature of this EU instrument reduces the possibility for a transparent discussion on the rationale for establishing such a system.

    Similarly, the EU currently has a powerful (horizontal) federal institution related to the well known principle of double jeopardy. Article 54 of the Schengen Treaty bars EU Member States from prosecuting the same facts and offender in their own jurisdiction after acquittal, dismissal or conviction by another EU Member State. On the contrary, the dual sovereignty exception in the US system enables other states and the federal government to prosecute the same facts and offender in their respective jurisdiction, regardless of any outcome in another jurisdiction. The horizontal federalization throughout the EU of the decision reached by one EU Member State thus provides for a harmonization across borders which goes far beyond the US system.

    Finally, the harmonization of both substantive and procedural law taking place in the EU is reviewed.

European Federal Criminal Law
  • The Federal Dimension of EU Criminal Law
  • Carlos Gómez-Jara Díez
  • Published by:
    Intersentia
    Published online:
    26 November 2017
    Print publication:
    12 October 2015
  • For decades, the EU has developed a system of criminal justice consistent with the mixed (sometimes contradictory) tendencies embedded in its very own structure. The Lisbon Treaty consolidated some federal elements that have an impact on the future development of this area of law. The sovereign debt crisis of 2010 and its progeny have, if anything, consolidated the need for the federal protection of EU financial interests at the EU level. This book aims to provide new insights in the federal dimension of these developments. Beginning with an analysis of the current state of affairs, the book also tackles the federalizing elements contained in such issues as the creation of a European banking supervision authority, the establishment of the European Prosecutor Office or the enactment of a EU regulation containing the grounds rules of its functioning. Throughout the chapters the reader will find constant references to the most efficient system of federal criminal law, i.e. the US system. This comparative law note serves the purpose of confirming the federal nature of what has been achieved so far at the EU level and providing guidelines for its future development. The basic contention of this book is that such regulation and its enforcement at the EU level is a fundamental tool to achieve the goals that the EU has already set forth in the upcoming agenda. In a nutshell: although the EU is not a federal state, it has the same problems as if it were. '[T]he book's content is readily accessible even for non-specialists in EU or US law, thanks to the author's clear writing style. All the foundational concepts of both systems are explained and a very useful bibliography with the major reference books is included. The reasoning is clear and always follows the original dichotomy between horizontal and vertical federalism, even if the structuring of the chapters may be surprising [...] worth reading the whole book to truly appreciate the quality of this research that opens new perspectives about the evolution of European Criminal Law [...]' Louise Seiler in New Journal of European Criminal Law (2016) 495'[the] book deserves a lot of attention for its insight and novelty, especially from those constitutional/EU lawyers who are not yet fully aware of this branch of EU law.' Massimo Fichera in Common Market Law Review (2107) 967

  • Chapter 4 - The Legal Position of the Surviving Cohabitant

  • John Asland, Margareta Brattström, Goran Lind, Ingrid Lund-Anderse, Anna Singer, Tone Sverdru
  • Book:
    Nordic Cohabitation Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    22 September 2015, pp 161-210

  • Summary

    INTRODUCTION: THE DEVELOPMENT OF THE LEGAL POSITION OF THE URVIVING COHABITANT

    Different legal systems provide different answers to the question of whether cohabitants should receive protection in inheritance law, and the way in which any protection should be given. The perspectives of Nordic legislators in this context are accounted for in Chapter 1 and section 4.10 of this book.

    Compulsory or declaratory protection; the international trend: Protection in inheritance law may require cohabitants to actively seek such protection, for example through registration, an agreement, a will or a declaration. The protection however may also be declaratory, so that the initiative lies with those cohabitants who do not wish to be covered. Specific factual criteria must oft en be fulfilled before such arrangements apply. The factual criteria may be that they have children together or have cohabited for a certain duration. Although there exist different forms of protection for the surviving cohabitant around the world, and the scope of the protection varies, the international trend is for the rules to make less of a distinction between spouses and cohabitants.

    Former Yugoslavia: Inheritance law has protected cohabitants in the former Yugoslavia since the 1970s. Croatia and Slovenia currently provide inheritance rights to cohabitants who have lived together for at least three years, or who have children together. These inheritance rights do not require registration of the relationship. There must not however be any legal obstacles to cohabitants marrying (age, civil status, kinship, etc.). Kosovo also provides a form of inheritance rights to surviving cohabitants.

    Autonomous Spanish regions: Cohabitants enjoy inheritance rights in most of the autonomous regions of Spain, but the Spanish Civil Code, which applies to the rest of Spain, does not grant cohabitants inheritance rights. Cohabitants have the same inheritance rights as spouses in Catalonia, Navarre, the Basque Country, Galicia and the Balearic Islands. According to Catalan law, which is based on the most recent legislation on inheritance law in Spain, cohabitants receive inheritance rights after two years of cohabitation. These rights may also come into effect however before two years have elapsed if the cohabitants have a child together or make a declaration to a notary public that they are cohabitants.

  • Preface

  • John Asland, Margareta Brattström, Goran Lind, Ingrid Lund-Anderse, Anna Singer, Tone Sverdru
  • Book:
    Nordic Cohabitation Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    22 September 2015, pp v-vi

  • Summary

    Cohabitation is now widely and socially accepted in the Nordic countries. Legal distinctions between spouses and cohabitants are less and less frequent. This development has probably enticed some cohabitants to believe that they have a legal protection in a similar way as spouses – but they don't. With the exception of Sweden, and to a certain extent Finland, the regulation of cohabitation in the Nordic countries is characterised by non-statutory law and discretionary compensation rules. Litigation in the wake of dissolved cohabitation testifies to a complex and oft en unclear legal situation, where some cohabitants risk leaving a long-term relationship empty-handed.

    This book gives an account of the rules on cohabitation in all five Nordic countries. It describes inter alia the regulation concerning property law during cohabitation and on the financial settlement after the dissolution of cohabitation as well as the main features of inheritance law and child rights legislation for cohabitants. The legal developments towards the current state of the law are also described. Against this background the questions is raised whether the current rules in the Nordic countries are capable of solving the problems that arise in this legal context. In a final chapter the book includes suggestions for legal principles for the regulation of cohabitation.

    The aim of the book is twofold. It gives an overall legal representation of the rules of cohabitation which can be useful both for lawyers, judges and other legal practitioners. But the discussion of legal policy and suggestions for solutions could be of interest for politicians and lawmakers interested in the Nordic region. Since legal culture and demographics are fairly uniform in the Nordic countries, it is possible to draw fruitful parallels between countries – in this field of law the Nordic countries can learn from each other, but others can also learn from us. The Nordic countries could actually be seen as a test case for different approaches to regulation of cohabitation.

    The book is written by a group of Nordic professors including John Asland, University of Oslo; Margareta Brattström, Uppsala University; Göran Lind, Örebro University; Ingrid Lund-Andersen, University of Copenhagen; Anna Singer, Uppsala University; and Tone Sverdrup, University of Oslo. Professor Urpo Kangas, University of Helsinki and Professor Hrefna Friðriksdóttir, University of Iceland have made important contributions to the description of, respectively, Finnish and Icelandic law.

  • Chapter 7 - Discussion of Legal Policy: Principles for Regulating Cohabitation Relationships

  • John Asland, Margareta Brattström, Goran Lind, Ingrid Lund-Anderse, Anna Singer, Tone Sverdru
  • Book:
    Nordic Cohabitation Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    22 September 2015, pp 267-282

  • Summary

    INTRODUCTION

    Nordic cooperation: There is a long tradition of trying to harmonise family law throughout the Nordic region. Nordic cooperation is based on two factors: a common culture, religion and social structures that go back many hundreds of years; and the Scandinavian languages that have great similarities.

    Cooperation on family law: The first meeting of Nordic lawyers took place in 1872. Since then lawyers have met regularly to discuss how legal cooperation between the Nordic countries can be developed and can give inspiration to their neighbour countries. Cooperation in the field of family law was especially intense when new legislation on marriage was being drafted at the beginning of the twentieth century. This led to Denmark, Iceland, Norway and Sweden introducing deferred community of property (gift orättsgods) as a matrimonial property regime at approximately the same time.

    Harmonisation of the legal status of homosexual couples: In recent years there has been a high degree of harmonisation of the legal status of homosexual couples. In 1989 Denmark was the first country in the world to introduce legislation on registered partnerships, and the other Nordic countries have since introduced similar legislation: Norway in 1993; Sweden in 1994; Iceland in 1996; and Finland in 2001. But the development has not stopped there. Many in the Western world wanted same-sex couples to be given full equality with heterosexual couples, and this led to homosexual couples being given the right to marry in the Netherlands in 2001 and in Belgium in 2003. In the Nordic region Norway was the first country to adopt unified legislation for couples of the same sex and of different sexes in 2008. Sweden and Iceland followed soon after in 2009 and 2010 respectively, followed by Denmark in 2012. Finally, on 20 February 2015 the Finnish president signed a law allowing gender-neutral marriage. While legislation in the Nordic countries may have moved at different speeds, it has clearly moved in the same direction. Harmonisation has led to there being an almost identical legal situation throughout the Nordic region as regards homosexual couples.

    Development of the legal status of unmarried cohabiting couples: In this book we have described how the legal status of unmarried cohabiting couples in the Nordic countries has developed. There are two clear aspects to this. First, the legal development has proceeded in a very different way than for couples of the same sex.

  • Chapter 5 - The Relevance of Cohabitation for Parental Rights

  • John Asland, Margareta Brattström, Goran Lind, Ingrid Lund-Anderse, Anna Singer, Tone Sverdru
  • Book:
    Nordic Cohabitation Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    22 September 2015, pp 211-240

  • Summary

    INTRODUCTION – EQUAL OR UNEQUAL

    In the 1960s as unmarried cohabitation increased in frequency throughout the Nordic countries, it became evident that there was a growing need to legally regulate these families. Initially most of the legislative attention focused on cohabiting couples concerned public law matters. Society's economic responsibility for the individual was expanding as the modern welfare state developed and as citizens gradually gained rights and access to various forms of social benefits. The fact that no legal status was afforded cohabitation, unlike marriage, meant that social benefits aimed at single people whose finances were not sufficient to permit them to maintain an acceptable standard of living, were also accessible to individuals who were in reality sharing their living expenses with a cohabitant. Married and unmarried couples thus came to be treated differently by virtue of the fact that unmarried cohabiting couples were able to take advantage of benefits designed for single people. For this reason it was deemed necessary to review and adjust the rules to reflect the contemporary situation on the ground.

    Review of the rules was however motivated not solely by economic considerations. For other reasons, too, it was considered necessary to look at cohabitants’ reciprocal legal positions. In particular, changing attitudes to various forms of family life and cohabitation – as well as, for many, a desire to distance themselves from the idea of marriage as an institution rooted in the Church – has contributed to an ambition to place cohabitants on an equal footing with spouses in their relations with society. One issue that had attracted attention many years before, as far back as the beginning of the 20th century, was the relationship between a child and the child's parents where they were not married to each other. As it became increasingly common for children to have parents who were not married it was deemed appropriate to end any remaining discrimination in the treatment of children dependant on whether the parents were married or simply living together, for example in matters of custody and parental responsibility.

    In all the Nordic countries most of the legal differences between married parents and unmarried cohabiting parents have now been removed. There are however still some situations where the legal position of cohabiting parents and their obligations within the family differ from those that apply to parents in families that are founded on formal marriage.

Nordic Cohabitation Law
  • John Asland, Margareta Brattström, Goran Lind, Ingrid Lund-Anderse, Anna Singer, Tone Sverdru
  • Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    22 September 2015
  • This book describes and analyses the different legal approaches and policy discussion regarding cohabitation in the Nordic countries (Iceland, Denmark, Norway, Sweden and Finland). It looks at historical developments, general private law principles, division of property on separation or death of one cohabitant, inheritance, and the regulations concerning children born to cohabitants. It concludes by proposing principles for the regulation of the financial circumstances of cohabitants.

  • Chapter 6 - The Distinctive Legal Nature of Cohabitation Relationships and the Need for Legislation

  • John Asland, Margareta Brattström, Goran Lind, Ingrid Lund-Anderse, Anna Singer, Tone Sverdru
  • Book:
    Nordic Cohabitation Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    22 September 2015, pp 241-266

  • Summary

    POINT OF DEPARTURE

    The Nordic countries have long pursued a policy of equalising the differences between women and men in working life. This gender equality policy has been successful in many areas. The combination of high labour force participation by women and a relatively high fertility rate is characteristic of the Nordic countries. The life-long full-time housewife is virtually a thing of the past, and fathers have increased the part they play in looking after children and in house work. Full equality is still a long way off, however. On average just under 40 per cent of working-age women in the Nordic countries work part-time, while only a small percentage of men do. Women still spend more time undertaking childcare than men, although the difference is less pronounced than before.

    Unequal asset accumulation: An unequal distribution of work may easily translate into an unequal accumulation of assets during a cohabitation relationship. The person who undertakes more than their share of the family's ‘unprofitable tasks’, i.e. childcare and the meeting of living expenses, often risks being left without any capital assets, even after a long period of cohabitation. The two cohabitants’ total work input at home and outside may be equal at any given point in time, but the differences are generated over time in that the first partner's work input vanishes (it is consumed), while the other's endures.

    In Sweden some housing assets may be divided when a relationship terminates, but in the other Nordic countries the financial settlement is based on property law, with some room left for awards of compensation; see Chapters 2 and 3. In Norway, cohabitants who have children together also enjoy a right to inherit from one another and to assume undivided possession of the estate; see Chapter 4. A settlement based on property law may lead to one cohabitant being left with most of the assets on termination of even a long-term relationship. It is difficult to know how widely this occurs, but an unequal division of expenses and work is typical of the many judgments we have seen addressing settlements following cohabitation relationships.

  • Chapter 3 - Financial Settlements on Termination of Cohabitation

  • John Asland, Margareta Brattström, Goran Lind, Ingrid Lund-Anderse, Anna Singer, Tone Sverdru
  • Book:
    Nordic Cohabitation Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    22 September 2015, pp 109-160

  • Summary

    INTRODUCTION: THE MAIN FEATURE OF THE LEGAL STATUS OF COHABITANTS

    Statement of assets and liabilities: When a cohabitation relationship ends, the starting point is that each party retains their own assets and liabilities. This applies in all Nordic countries and is directly laid down in section 5 of the Finnish Act on the Dissolution of the Household of Cohabiting Partners (Lagen om upplösning av sambors gemensamma hushåll). When cohabitation is terminated or when one of the parties dies, it is necessary to draw up a statement of what each party owns, whether there is a shared debt, and whether one party has a claim against the other. If the parties own property jointly, each can request the joint ownership to be terminated.

    Reciprocal claims: If one of the parties in a cohabitation relationship has transferred an amount to the other, there can arise a question of whether it is possible to make a claim on the grounds of such transfer. A claim will be dismissed if the amount transferred is regarded as a contribution to the shared household expenses or a gift. On the other hand it may be recognised as a normal claim under property law, such as a claim based on the doctrine of unjust enrichment or a claim for the repayment of a loan. However, it is more usual for the financially worse off cohabitant to seek an amount under the rules on the financial circumstances of cohabitants or as a special kind of claim which the courts have recognised within the context of cohabitation relationships. This may be because an asset is regarded as being jointly owned by the parties from a particular family property law perspective, or as a claim for compensation, consideration or reimbursement. Each of the Nordic countries has its own legal solutions which differ materially. What is common to them is that these cases are often subject to a special assessment because of the closeness of the couple's relationship. While each country pursues the overall aim of ensuring the reasonable division of property when cohabitation comes to an end, the resulting divisions can be surprisingly different.

    Legislation of the assessment of the property of cohabitants: For many years Sweden was the only Nordic country with special legislation on the financial circumstances of cohabitants on the termination of cohabitation. The Swedish Cohabitation Act (Sambolagen) 1987 was revised in 2003.

  • Chapter 2 - Property Issues in Cohabitation Relationships

  • John Asland, Margareta Brattström, Goran Lind, Ingrid Lund-Anderse, Anna Singer, Tone Sverdru
  • Book:
    Nordic Cohabitation Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    22 September 2015, pp 57-108

  • Summary

    INTRODUCTION

    In the Nordic countries, there are few specific provisions in law that regulate property issues for couples in permanent or long-term cohabitation relationships. The opposite is the case for married couples. Marital law contains an entire system of regulations relating to property which governs both relations between spouses and relations between individual spouses and third parties. Since there are frequently no rules governing cohabitation relationships the general principles of the law of property are applied to property issues that affect cohabitants. At first glance the difference between cohabitants and spouses would appear to have few practical consequences as general property law applies to both categories. For both cohabitants and spouses, the main rules are that:

  • – each individual owns his or her own property and has liberty to dispose of it;

  • – each individual is liable for his or her own debts but not for the other party's debts; and

  • – couples are entitled to enter into agreements with one another in respect of the law of property.

    • Cohabitants composed with spouses: It must be assumed that in many respects there are general similarities between the ways in which cohabitants and married couples organise their lives. Yet despite this, the view thus far has been that family law rules governing spouses should not be applied analogously to cohabitants; they must at any rate be applied with great care. One argument in favour of the current system is that there is a clear formal requirement, in order for a marriage to exist, in the form of a valid marriage ceremony. Cohabitants have not manifested their relationship in a similar manner. That they have not married may be because they do not wish the legal rules that apply to marriage to be applied to their relationship, or as they have quite simply not decided whether they want their relationship to be governed by law. Expanding the application of the rules that apply to spouses to include cohabitants should, therefore, according to current thinking, require legislation. This has already occurred to some extent, but primarily where issues other than property issues in cohabitation relationships have been concerned. There are, however, examples from case law where property issues between cohabitants have been settled on the basis of considerations that more closely resemble the particular principles that apply between spouses than the general principles of the law of property.

  • Chapter 1 - The Development of Cohabitation and Cohabitation Law in the Nordic Countries

  • John Asland, Margareta Brattström, Goran Lind, Ingrid Lund-Anderse, Anna Singer, Tone Sverdru
  • Book:
    Nordic Cohabitation Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    22 September 2015, pp 1-56

  • Summary

    INTRODUCTION

    Historic background: Cohabitation has a long history in Nordic law. While the historic evolution of cohabitation is not the subject of this book, it is interesting to note that, prior to the legal requirement introduced in the Nordic countries in the 17th and 18th centuries for marriages to be conducted in church, informal relationships were recognised as marriage. This had its basis in the canon law of the Catholic Church, which in turn was inspired by the free marriage that was a feature of Roman law. Since formal marriage ceremonies became compulsory in order to legally contract a marriage, there have always been couples who for various reasons have not wished or have been unable to marry and have therefore cohabited outside marriage. More than a hundred years ago, for example, in Sweden and Finland informal cohabitation was used by women instead of marriage to avoid being subjected to their partner's authority (målsmanskap) over her – a married woman was legally a minor – and even up to the present day same-sex couples have been barred from marriage and have therefore cohabited.

    The development of modern cohabitation, which will be discussed in this chapter, has its origin in the late 1960s when the number of marriages fell sharply while at the same time the number of cohabitation relationships and the number of children born outside marriage – now generally referred to as children born to single mothers – rose dramatically. It became more generally acceptable for couples to live together and to start a family without being married. Attitudes to same-sex relationships also changed and they became more widely accepted.

    These trends presented Nordic courts and legislators with some serious challenges and sparked much discussion concerning both the question of which rules of law were actually applicable to cohabitation relationships and whether there was a need to introduce special legislation governing such relationships (and if so, how it should be framed).

    Nordic cooperation: Unlike the fruitful Nordic cooperation that took place in the early 20th century in the area of family law and that gave rise to a large body of compatible legislation, in the past forty years Nordic legislators have, despite the existence of fairly similar general societal conditions and attitudes across their countries, sought in very different ways to meet the challenges that unmarried cohabitation presents.

Page 329 of 386