The fifth conference of the Commission on European Family Law (CEFL) on ‘Family Law and Culture in Europe: Developments, Challenges and Opportunities’ was held in Bonn in August 2013 in collaboration with the University of Bonn and the Käte Hamburger Center for Advanced Study in the Humanities ‘Law as Culture’, which aims to contribute to an understanding of the cultural dimension of law and the promotion of the research on law from the perspective of the humanities. The participation of more than 200 participants from around 33 countries made the conference a valuable experience and fostered a stimulating discussion during the three conference days.

The discussions were introduced by eminent conference speakers from all over Europe. Additionally, twelve young researchers from eight different countries were selected after a call for papers. They presented their research in four parallel working groups which addressed Cross-Border Family Relationships, Transnational Families, The (Un-)Wanted Child, and the Relationship Breakup. Their papers are also included in this volume.

The book consists of five parts. It starts with four presentations of the CEFL Principles on Property Relations between Spouses. Part 2 examines the breakup of (non-)formalized relationships with special reference to unmarried cohabitation and the current debate on its legislation. It also addresses alternative instruments of conflict resolution in family law like the Irish collaborative law approach. Part 3 analyses the interdependence between legal, social and biological parenthood. It also deals with the problems of cross-border surrogacy as well as mechanisms for the anonymous relinquishment of children and baby boxes. It ends with a contribution on legal issues concerning stepfamilies. Part 4 addresses the legal aspects on international family relationships and contains a critical view on the 2011 Proposal for a Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. It also analyses the notion of ‘habitual residence’ in European family law and refers to the criteria of nationality and domicile as a connecting factor for private international law questions regarding same-sex relationships. Finally, Part 5 reveals interesting aspects of transnational families such as the EU citizenship.

INTRODUCTION AND OVERVIEW: WHY FAMILY LAW SHOULD BE LINKED TO THE CULTURAL BASICS OF SOCIETY

The aim of my article is to apply the ‘law as culture perspective’ of the Käte Hamburger Center for Advanced Study in the Humanities named ‘Law as Culture’ to questions of family law. I will start with the fundamental question of why culture should matter at all in family law affairs. I shall do this even though the burden of proof seems like it ought to be the other way around, that is one should have to explain why in matters so deeply related to tradition, religion and the nation as family structures and their regulations, culture should not matter at all (section 2). This is indeed not a completely innocent kind of inquiry because there is or has been at least an important debate about the ‘cultural restraints argument’. To answer this question is of crucial importance for the basic orientation of our centre.

All this presupposes that we are talking about the same subject, that is to say that we are treating family – not its normative regulation but the conception of what ‘family’ means – as identical across different times and different civilisations. A look at family semantics in the world could reveal a wide range of differences.

Next I want to remind you of the importance family law had for the founding fathers, sons, nephews and grandchildren of the discipline I try to stand for: sociology. Especially in Durkheim's writings, the analysis of family law is a privileged methodological tool to grasp by way of the law the structures of family life (section 3).

I then have to mention the difference of law in the books and the living law approach in order to foresee what contemporary debates in European family law may mean for this fundamental distinction. We cannot avoid taking a look at the concept of law used in this context. The more we project culture into the concept of law, by way of including symbolic and ritual elements of the force of law, the easier it becomes to retrace the cultural traits of family law as well, without necessarily calling it a constraint (section 4).