INTRODUCTION

Private international law is that field of the law that regulates the interaction between the private law systems of different States. It is an often forgotten field of law, also in comparative law projects.

In the area of family law the European Union (EU) legislator has been very active over the past 15 years. Many aspects of private international law have been unified. There is EU legislation on divorce, parental responsibility, maintenance, matrimonial property, and the property consequences of registered partnerships. On the international level, the Hague Conference on Private International Law has concluded conventions on child protection (including parental responsibility), the civil aspects of international child abduction, inter-country adoption and maintenance.

The area of the establishment of parenthood is still governed by national private international law rules. As is clear from the national reports in this volume, the rules of substantive law are diverse. Where substantive laws are diverse, it is difficult to agree on common private international rules. Even in the fields where the EU has legislated, the most recent efforts did not result in common private international law instruments throughout the EU, but only in instruments of enhanced cooperation. This is the case for divorce (applicable law), matrimonial property and the property consequences of registered partnerships. The EU has not yet endeavoured to take initiative in the field of parenthood. The International Commission on Civil Status has in the past tackled this issue, but their Conventions deal mainly with children born out of wedlock. They are old and have not been broadly ratified. They do not establish common private international rules, but oblige Contracting States to recognise certain aspects of parenthood from abroad. Since 2015, the Hague Conference on Private International Law has been working on a project on parentage and surrogacy. The work is currently done by an Expert Group and it is as yet unknown what the outcome will be.

INTRODUCTION

In 2004 Belgium codified its private international law. This Code of Private International Law (PIL Code) encompasses the three pillars of private international law: (1) rules on international jurisdiction, (2) rules on the applicable law, and (3) rules on the recognition and enforcement in Belgium of foreign judgments and authentic acts.

With support from the Flanders Research Foundation (FWO-Vlaanderen), I conducted research into the concrete application of the PIL Code in the field of family law. I examined whether or not the objectives set out by the Belgian legislator have been achieved in practice and whether or not the Belgian PIL Code is a sufficiently adequate instrument to deal with ‘real-life’ international family law matters. For this study I had access to a vast amount of empirical sources which offered a clear picture of how courts and (local) authorities apply the PIL rules.

My field-test research revealed several discrepancies between the legislative ambitions and the practice of the courts and administrations, some of which can be attributed to the context within which private international law functions. At the national level, for instance, migration policy exerts considerable pressure on international family law. The research demonstrates a true instrumentalisation of private international law by migration (law) policies, leading, amongst other things, to all kinds of limping family law relationships (limping names, limping fatherhoods, limping marriages and divorces, etc.).

This contribution first outlines the empirical research method (section 2) and briefly illustrates the added value of empirical research in legal studies (section 3). It then reflects a few of the research findings: the nexus between private international law and migration law and their different normative approaches to identical family situations (section 4.1) and the issue of party autonomy which is not used though possible in certain fields of family law and not possible though useful in other areas of family law (section 4.2).

EMPIRICAL RESEARCH IN THE FIELD OF PRIVATE INTERNATIONAL LAW

The research was divided into two consecutive phases. Firstly, I focused on the objectives and choices of the Belgian legislator in drafting the PIL Code provisions in the field of family law. In a second phase these legislative objectives were compared to the actual practice of judicial and administrative authorities.