This contribution addresses recent proposals for legislating an area of family law that has so far been neglected by many national legislatures. It focuses on the relationship of couples who are neither married nor in a registered partnership with each other. More than 20 years ago, John Eekelaar dealt with the topic in great detail. Therefore, his publications in this field of family law should be honoured first, before subsequently introducing and comparing recent proposals. The proposals stem from two regional organisations in Europe and the US, and at the national level from a Law Commission, an advisory committee and a political party. In addition, a brief overview will be provided of those European jurisdictions which, in recent years, have legislated certain aspects of de facto relationships. The overall question is whether a trend towards the legal recognition of these relationships through legislation can be discerned.

Before following the described path, a conceptual issue should be clarified. The term ‘cohabitation’ is still used by many organisations and authors. In the opinion of this author, this term is somewhat outdated and old-fashioned. Other terms, such as informal and non-formalised or non-conjugal relationships, have been used in the legal discourse. The Commission on European Family Law has recently decided to use the term ‘de facto union’ in its new set of principles. It does not need further discussion to understand that the different terms refer to the same form of living together, as a couple who have not formalised their relationship either in the form of marriage or a registered partnership. Therefore, the various terms will be used interchangeably in the context of the various legislative projects.

1. JOHN EEKELAAR ON UNMARRIED COHABITATION

In 2001, John Eekelaar acted as chief editor of a special issue, ‘Unmarried Cohabitation in Europe’, of the International Journal of Law, Policy and the Family. In accordance with the interdisciplinary outlook of the journal, the topic was approached from different angles. Of the nine contributions, eight were written by social and political scientists and demographers, reporting on various studies undertaken in Great Britain, Spain, Germany, Norway, France, Sweden, the US and Western Europe, the last-mentioned being based on the Eurobarometer surveys. Only one contribution analysed several European jurisdictions from a comparative law perspective.

INTRODUCTION

The Commission on European Family Law (CEFL) has reached its 19th year of existence. Established in 2001, the CEFL has drafted five sets of Principles of European Family Law in the field of divorce, maintenance between former spouses, parental responsibilities, property relations between spouses and de facto unions. They can be considered as model laws for national legislators in their quest to reform their family law systems. In turn, new family law legislation inspired by the European Family Law Principles contributes to the further harmonisation of family law in Europe. This contribution provides information about the various activities of the CEFL, its organisation, working method, results, finances and impact so far. Finally, the question of the next steps to be taken will be answered.

ORGANISATION, COMPOSITION AND MEETINGS

The CEFL is a foundation under Dutch law. The CEFL consists of two groups: the Organising Committee and the Expert Group. The Organising Committee set up the Expert Group and prepared and coordinated the work of the Commission as a whole. The members of the Organising Committee are at the same time members of the Expert Group. Over the years the composition of the Organising Committee has hardly changed. Frédérique Ferrand (Lyon), Nigel Lowe (Cardiff), Dieter Martiny (Frankfurt (Oder), later Hamburg) and this author (Utrecht, later Hamburg) were the founding members, together with Walter Pintens (Leuven) and Dieter Schwab (Regensburg). The latter left in 2003 and two new members joined the Organising Committee in that same year: Cristina González Beilfuss (Barcelona) and Maarit Jänterä -Jareborg (Uppsala). Only in 2013 was Walter Pintens replaced by Velina Todorova (Sofia).

The Expert Group is comprised of specialists in the field of family and comparative law from most of the European Union Member States, with the involvement of experts from other European countries, such as Norway, Russia and Switzerland. Over the years, the number of experts has increased. For each specific working field, they were invited to contribute by drafting a national report and taking part in Expert Meetings. Some of them have accompanied us over the years, others have been replaced by new experts, and still others have only joined the group for the latest working field.

INTRODUCTION

At the 6th CEFL Conference on Plurality and Diversity of Family Relations in Europe, the draft of the Principles of European Family Law Regarding the Property, Maintenance and Successions Rights of Couples in de facto Unions was presented. The day before the conference, this draft had been discussed at great length with CEFL's Expert Group, whose members had prepared the national reports. In the following we will provide a brief overview of the draft.

THE GENERAL APPROACH

2.1. METHOD

Based upon a questionnaire containing 74 questions, CEFL's experts drafted 29 national reports. The questions addressed a few general issues (legal sources, historical developments and law reforms), statistics and estimations, issues that arise during the relationship, separation and death, as well as agreements between the partners and, finally, disputes. The comparative material was compiled in a book that was published in 2014. The drafting of the Principles took place at eight meetings of CEFL's Organising Committee, comprising seven members, four of whom are the authors of this contribution, plus Frédé rique Ferrand (Lyon), Maarit Jänterä -Jareborg (Uppsala) and Velina Todorova (Sofia). At these meetings the Principles were formulated, the relevant international and European instruments were analysed, the comparative overviews with references to all national reports were drafted and the comments which explain the Principles were designed and discussed.

2.2. STRUCTURE

The fifth set of CEFL's Principles of European Family Law consists of 27 Principles contained in seven chapters. The structure of the new set of Principles is comparable with previous sets of Principles. They start with a Preamble, followed by the first chapter on definitions and the scope of application. General rights and duties are then addressed. Agreements, property and debts, separation, death and disputes are the titles of the subsequent chapters.

2.3. TERMINOLOGY

During the drafting process of the Principles the terminology was changed. Initially, in the questionnaire and the publication of the national reports, the term ‘informal relationship’ was used. The term ‘informal’, however, is just the opposite of ‘formal’, which indicates marriage and registered partnerships and the like. More importantly the term ‘informal’ suggests that there is a lesser commitment by the persons involved, which, however, cannot be assumed.

Uppsala (2002), Trier (2011), Hamburg (2016): synonyms for three international conferences organised by the Academy of European Law (ERA) on legal recognition of same-sex relationships, followed by the conference proceedings in the European Family Law Series and each with a different focus and direction. The first edition consisted of the very few national laws granting the right to enter a registered partnership; marriage for same-sex partners was at that time only allowed in the Netherlands. The second presented a picturesque landscape of different national registration schemes including same-sex marriage in numerous countries, and initiated the debate on legal aspects of cross-border surrogacy. The present edition, anchored in the recent Hamburg conference of 18 – 19 April 2016, organised by ERA in cooperation with Bucerius Law School, has considerably broadened the horizon and includes the topic of gender identity. In social networks people can now choose from among more than 50 gender options, mirroring a reality which needs to be addressed in any legal debate.

The opening section of the book describes the current state of play in all EU Member States (and beyond) when formalising a same-sex relationship, steady progress being the keyword in describing the developments in many countries (with the exception of six Eastern European states that object to legislation in this field). The second part concentrates on parenthood and children's rights, notably adoption, surrogacy, multiple parenting and the range of parenting rights for same-sex couples and transsexuals. The third part on gender identity and human rights discusses the legal aft ermath of the European Court of Human Rights’ judgment in Oliari condemning Italy for failing to protect homosexuals’ right to family life. Furthermore, it explains EU legislation against discrimination on grounds of sexual orientation and the challenges lesbians, gays, bisexual and transgender applicants are confronted with when reaching Europe as refugees. The book ends with a lively debate on the right to change one's legal sex and raises the fundamental question whether we still need sex as a legal category: gender matters in the EU – or does it?

The editors express their thanks to the authors for contributing to this volume, and to Professor Karsten Thorn for co-organising the Hamburg conference.