ARTICLES

A TALE OF TWO FEDERAL SYSTEMS

Margaret Ryznar and Anna Stępień-Sporek*

TABLE OF CONTENTS

I. INTRODUCTION .............................................................................. 589 II. FAMILY LAW IN THE UNITED STATES ........................................ 591

A. American Matrimonial Property Regimes .................... 592 B. Methods of Harmonization .............................................. 595

III. FAMILY LAW IN THE EUROPEAN UNION .................................. 600 A. The History of the Harmonization of Family Law ....... 600 B. European Matrimonial Property Regimes..................... 604 C. Harmonization Efforts in Europe ................................... 610

IV. IMPLICATIONS OF THE HARMONIZATION OF FAMILY LAW .... 614 V. CONCLUSION ................................................................................. 617

I. INTRODUCTION

Family law is one of the most dynamic fields of American law, partly due to the various jurisdictions permitted by federalism. This characteristic of family law creates inconsistencies in the field, including the differences among states in matrimonial property regimes.1

* Margaret Ryznar is Associate Professor of Law at Indiana University Robert H. McKinney School of Law. Anna Stępień-Sporek is Assistant Professor of Law at University of Gdańsk School of Law in Gdańsk, Poland. The authors are grateful for the commentary of the participants at the International Society of Family Law’s North America Regional Conference at the University of Iowa on June 14-16, 2012, where this paper was presented.

While model legislation aims to influence states to pursue the same goals and methods in family law, federalism empowers states to retain significant control and promulgate divergent family laws.

1 See infra Part II.A.

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However, in another system resembling a federal one—the European Union2—one of the most dynamic areas of family law is the harmonization of the field, aimed at making it consistent across jurisdictions. Originally, family law was within the domain of member states, but over the last few years there has been a notable push to harmonize a particular and important subset of family law across countries: matrimonial property law that regulates how married couples hold property.3

The recent European harmonization efforts are noteworthy because of the depth and breadth of the inconsistencies in the family laws being harmonized. Specifically, there are many property regimes across the European Union, which vary by country, and the scope of harmonization will therefore have to be significant to achieve consistency in Europe’s family laws.

In the area of matrimonial property law—the focus of this Article—the most recent issue is whether European Union member countries can agree to a common property regime for married couples. Germany and France have begun cooperation by introducing a new regulation that permits spouses to contract into a common property regime.4

Although it may seem surprising, the road from the various property regimes in the Europe Union to a single common property regime may not be as long as was expected several years ago. For example, currently pending regulations drafted by the European Commission on jurisdiction, applicable law, and the recognition and enforcement of judicial decisions illustrate the solid steps taken toward harmonization. In fact, the idea of harmonization in Europe has changed completely in recent years, with the argument of cultural constraints being abandoned by

The remaining European Union countries must now determine whether they too are ready for the common property regime. Any resulting harmonization would be revolutionary in family law because the matrimonial property law is so fundamental to marriage, impacting the economic consequences of marriage for each spouse.

2 The European Union is not officially a federation. According to the German Constitutional Court, the EU is an association of sovereign states. However, it has the characteristics of a federal system and can therefore be referred to as a quasi-federal or federal-like system. 3 Also known as the “marital property system.” 4 See infra Part III.C.

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many academics.5

Harmonization success in Europe, however, prompts certain questions: whether harmonization is desirable in itself, and if so, how it could be achieved. There are many issues to consider in answering these questions, such as the role of jurisdictional autonomy, cultural relativism, and legal absolutes. These concerns are especially relevant in the field of family law, which regulates the intimacy of fundamental human relationships.

6

In considering these important questions, this Article examines the differences between the American and European approaches to family law and the issue of its harmonization, particularly in regard to marital property law. Part II considers American family law, while Part III considers family law in the European Union and harmonization efforts there. Finally, Part IV seeks to offer insights into the consequences of the initiatives undertaken in the European Union and the comparative lessons that can be drawn for the process, methods, and goals of harmonization of laws. The results will impact innumerable couples and how they hold property during their marriage, as well as the property consequences of divorce or death.

II. FAMILY LAW IN THE UNITED STATES

In the United States, a system of federalism permits American states to retain lawmaking power on issues not ceded to the Federal government.7 Many family law issues have remained in the domain of the states, including decisions regarding marital property regimes,8 which this Article addresses.9

5 See infra Part III.C.

The result is that

6 For example, same-sex marriage is legal in some states, but not others. See Nancy G. Maxwell, Unification and Harmonization of Family Law Principles: The United States Experience, PERSPECTIVES FOR THE UNIFICATION AND HARMONISATION OF FAMILY

LAW IN EUROPE (Katharina Boele-Woelki ed. 2003), available at http://washburnlaw.edu/faculty/maxwell-n-fulltext/2003-4cefl249.pdf. Furthermore, divorce is not available in certain foreign jurisdictions such as the Philippines, while it is relatively available in other jurisdictions. 7 See Richard E. Levy & Stephen R. McAllister, Defining the Roles of the National and State Governments in the American Federal System: A Symposium, 45 U. KAN. L. REV. 971 (1997). For commentary on federalism in Europe, see Chibli Mallat, Federalism in the Middle East and Europe, 35 CASE W. RES. J. INT’L L. 1 (2003). 8 See Kristin A. Collins, Federalism’s Fallacy: The Early Tradition of Federal Family Law and the Invention of States’ Rights, 26 CARDOZO L. REV. 1761, 1769 (2005) (noting that family law is currently in the domain of the states, but that, historically, the federal

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the nuances of family law largely differ among the states.

A. American Matrimonial Property Regimes

Unlike in certain European Union countries, there are only two matrimonial property regimes in the United States, with each state having a default property distribution regime of either: 1) equitable distribution, which necessitates a fair but not necessarily equal division between the spouses, or 2) community property, which often results in a roughly equal division of marital property between the spouses.10

Community property is the default marital property regime in only a minority of states. These states currently include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, the property and debts acquired during the marriage belong to both spouses, most often equally.

11 Some community property states statutorily require equal division between the spouses upon divorce,12

The remainder of American states utilizes equitable distribution in divorce, and spouses might hold their property separately during marriage. The generally accepted theory of equitable division likens the division of property upon divorce to that of partnership dissolution. While each partner has a stake in the partnership, all shares are not equal. Thus, upon dissolution of the partnership, each partner receives only the share that corresponds to his contribution. In the marital context, however, contributions are not necessarily limited to the assets that each spouse brings, but may also extend to those contributions made to

although the statutory details differ even among community property states.

government was not limited in this way). But see Libby S. Adler, Federalism and Family, 8 COLUM. J. GENDER & L. 197 (1999) (arguing that there is no foundation for the view that family law belongs in the state domain). This Article uses the term “marital property regime” interchangeably with the term “matrimonial property regime.” 9 Nancy Maxwell does a comprehensive case study of the harmonization of the grounds for divorce and spousal support in the United States. See Maxwell, supra note 6, at 1. 10 See Margaret Ryznar, All’s Fair in Love and War: But What About in Divorce? The Fairness of Property Division in American and English Big Money Divorce Cases, 86 N.D. L. REV. 115 (2010). 11 William Q. DeFuniak & Michael J. Vaughn, PRINCIPLES OF COMMUNITY

PROPERTY § 1 (2d ed. 1971). 12 See, e.g., CAL. FAM. CODE §§ 2550–56 (West 2004).

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the marriage generally, such as childcare.13

Upon divorce, equitable distribution requires the courts to divide property between the parties equitably. However, such a division does not necessarily mean an equal split between the parties.

14 In determining a particular division under the equitable distribution approach, courts consider several legislated factors, such as the length of the marriage, the causes for the dissolution of the marriage, the age and health of the parties, and the amount and sources of income, as well as the vocational skills, liabilities, and needs of each party.15 In these states, the courts have significant discretion in property division, and the resulting decisions are often fact-specific.16

Regardless of whether a state is a community property state or an equitable distribution property state, spouses might hold some property separately (separate property) and other property together (marital property). The classification of property as marital or separate is particularly important in those states that divide only marital property between the spouses upon divorce, while considering separate property as belonging entirely only to one spouse and indivisible.

17

Separate property most often consists of all assets a spouse owned before marriage, all assets received by a spouse through gift or inheritance after marriage, damages for personal injuries suffered by a spouse,

18

13 See Ryznar, supra note

property which the spouses agreed to

10. 14 See, e.g., Bean v. Bean, 115 S.W.3d 388, 393 (Mo. Ct. App. S.D. 2003). 15 See, e.g., 750 ILL. COMP. STAT. ANN. 5/504 (West 2012); CONN. GEN. STAT. ANN. §§ 46b-81, 46b-82 (West 2012). 16 For a useful analysis of judicial discretion in equitable distribution divisions, see Sanford N. Katz, Marriage As Partnership, 73 NOTRE DAME L. REV. 1251 (1998). 17 William S. Forsberg, The Family Vacation Home: Keeping It in the Family is Hard to Do—It’s More about Cooperation than Planning!, 23 PROB. & PROP. 41, 42 (2009), available at http://www.americanbar.org/publications/probate_property_magazine_home/probate_2009_index/probate_mar_apr_2009_index/rppt_publications_magazine_2009_ma_FamVacationHome.html (noting that normally non-marital property in many states is not subject to division in divorce). Some state statutes, however, permit courts to divide all property between the spouses, including both separate and marital property. See, e.g., IND. CODE

ANN. § 31-15-7-4 (West 2012) (“In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the property of the parties, whether: owned by either spouse before the marriage.”). 18 See, e.g., Fehring v. Fehring, 58 A.D.3d 1061 (N.Y. App. Div. 2009) (noting that commingling of defendant’s insurance credit resulted in its treatment as marital property); Beckley v. Beckley, 822 N.E.2d 158 (Ind. 2005) (determining that a portion of the

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characterize as separate property,19 property acquired after separation, and the proceeds or interest resulting from any of these assets. In many states, these assets are not divisible because they are considered to be separate. Meanwhile, marital property consists of all assets acquired during marriage except for separate property,20 all assets that the spouses agree to be community property, and all assets that are converted into community property due to commingling.21

Therefore, there is a major division among states regarding the default matrimonial property regime, which is either equitable distribution or community property. Furthermore, different states have different default rules regarding how spouses hold property within the marriage.

In all states, marital property is considered divisible between the spouses.

22

The implications of these variations are most concrete for mobile couples. For example, if a couple marries in one state but divorces in another, there is the problem of which jurisdiction’s law applies. The body of law known as conflict of laws, which addresses the question of which law to apply when more than one jurisdiction is involved, deals with such issues.

23

settlement award under the Federal Employers’ Liability Act attributable to husband’s past pain and suffering was subject to distribution upon divorce).

Couples may also achieve a predictable result by entering into a premarital agreement. Furthermore, if a couple moves from a separate property state to a community property state upon retirement, the lower income spouse loses the protections of the separate property

19 See United States v. ELAM, 112 F.3d 1036, 1038 (9th Cir. 1997) (“California permits agreements between the spouses, including prenuptial agreements, to transmute community property into separate property.”). As one court in Arizona explained, “Property takes its character as separate or community at the time it is acquired.” Honnas v. Honnas, 648 P.2d 1045, 1046 (Ariz. 1982). Such property retains its characterization throughout marriage “until changed by agreement of the parties or by operation of law.” Potthoff v. Potthoff, 627 P.2d 708, 712 (Ariz. Ct. App. 1981). 20 For example, there is a presumption in Illinois, which can only be overcome by clear and convincing evidence, that if a residence is acquired during marriage it is marital property, even though title might be only in one spouse’s name. See In re Marriage of Hegge, 674 N.E.2d 124, 125 (Ill. App. Ct. 1996). 21 See Anna Stępień-Sporek & Margaret Ryznar, Nabywanie Przedmiotów Majątkowych przez Malzonków z Mieszanych Funduszy, 11 PAŃSTWO I PRAWO 83 (2010). See also D. KELLY WEISBERG & SUSAN FRELICH APPLETON, MODERN FAMILY

LAW 224 n.6 (2010). 22 See, e.g., infra notes 19-22. 23 For background on conflict of laws, see Earl M. Maltz, Do Modern Theories of Conflict of Laws Work? The New Jersey Experience, 36 RUTGERS L.J. 527 (2005).

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state, such as the elective share, without gaining community property protections given that the property retains its separate property nature, where acquired.24

B. Methods of Harmonization

Harmonization would help alleviate these issues for mobile couples by making the law consistent across jurisdictions.

The American federal system is characterized by differences between state family laws. If harmonization were desired by the states, however, there would be two principal ways of achieving it. The first would be to allow federal legislation to substantively address family law. Such federal family law would apply to all states equally by virtue of the supremacy of federal law.25 Second, family law could be harmonized by the states’ adoption of model legislation drafted by a central authority, such as the American Law Institute.26

The first method, federal family law, is unrealistic given the governmental structure in the United States. Federalism, or the system of shared power between state and federal governments, is an extolled aspect of the American system of governance.

27 This is especially true in the area of family law, where values and social mores are local. As a result, family law has become firmly embedded in the states’ domain, although a minority of family issues have been viewed as a matter of national importance considered on the federal level.28

For example, the criminalization of acts of domestic violence

24 See supra note 19; see also infra notes 131-35 and accompanying text. 25 For commentary on the notion of federal law’s supremacy, see Garrick B. Pursley, Preemption in Congress, 71 OHIO ST. L.J. 511 (2010). 26 See infra note 42 and accompanying text. 27 See, e.g., Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O’Connor, J., dissenting) (“One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’”) (quoting New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)). 28 Justice Antonin Scalia has expressed concern about the increasing federalization of family law. Troxel v. Granville, 530 U.S. 57, 93 (2000) (Scalia, J., dissenting) (stating “I think it obvious . . . that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.”).

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and the regulation of child support have been subject to federal legislation applicable to all states.29 As to the latter, the most recent U.S. Supreme Court decision on the topic, illustrating federal intervention, held that the states need not provide counsel to indigent noncustodial fathers facing incarceration in civil contempt proceedings for nonpayment of child support.30 Federal interest in child support enforcement stemmed from the tax burden otherwise imposed to support the children, and federal involvement has increased the success of collection of child support from debtor parents.31

The second possible approach to harmonization—model legislation—would help harmonization efforts in American family law, but has not entirely been embraced for several reasons. Notably, model legislation is rarely adopted. More often, it serves as guidance for state legislatures or is adopted with modifications.

Nonetheless, most family law issues have been firmly embraced by the states in the federal system, which impedes harmonization to a certain extent.

32 Furthermore, although there have been efforts to pass model legislation on marital property regimes, model legislation has multiple purposes. While uniformity may be one, model acts have often been introduced in order to implement optimal results across states, and, for this reason, model acts often aim to protect certain classes of people.33

29 See Adler, supra note

Ultimately, however, model legislation in family law serves more as a framework than as

8, at 201. 30 See Turner v. Rogers, 131 S. Ct. 2507 (2011). 31 See, e.g., Ann Laquer Estin, Moving Beyond the Child Support Revolution, 26 L. &

SOC. INQUIRY 505, 505 (2001) (“Much of the motivation for the enormous national effort and expense devoted to the child support revolution was the promise that better support enforcement would help keep single-parent families off the welfare rolls and allow the government to recoup its growing expenditures for public benefits.”). See also Anna Stępień-Sporek & Margaret Ryznar, Child Support for Adult Children, 30 QUINNIPIAC L. REV. 359, 375-76 (2012) (“Child support for minor children—which is far less controversial than post-majority support—has been notoriously difficult to collect. In 2009, only about 61.0% of the $35.1 billion due in child support for minors was reported as received, averaging $3,630 per custodial parent due support. Child support collection was difficult even when the money was required for children’s basic necessities—28.3% of all custodial parents had incomes below poverty, while 36.1% of those who received full child support payments were below poverty.”). 32 For example, approximately half of the states now have adopted some variation of the Uniform Premarital Agreement Act (UPAA). See infra note 44 and accompanying text. 33 See Nanette K. Laughrey, Uniform Marital Property Act: A Renewed Commitment to the American Family, 65 NEB. L. REV. 120 (1986).

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a substitute for local legislation. Model legislation can only influence state legislatures, not bind them, unless a state legislature enacts the legislation in its entirety.

In the area of property ownership during marriage, the Commissioners of Uniform State Laws adopted the Uniform Marital Property Act (UMPA) in July 1983.34 This model legislation addresses only marital property ownership, but not the division of property upon divorce.35 State law would govern the latter by either imposing a community property or an equitable distribution division, particularly in the absence of a premarital agreement. The UMPA would also not govern the post-divorce financial support one spouse would owe the other.36

During marriage, however, the UMPA advocates a community property regime based on a community of acquets.

37 Under the model legislation, spouses would be given vested rights of joint and equal ownership in all property acquired following the “determination date,” which is the latest date of either the marriage, the model legislation’s coming into effect, or of the establishment of domicile (residence) in the enacting state. After this date, all property acquired is considered marital property, albeit with certain exceptions.38 Equal ownership, however, does not mean equal management. These concepts differ from some of the states’ interpretations of community property,39 although subsequently, some states, such as Wisconsin, did adopt aspects of the model legislation with certain modifications.40

The UMPA establishes marital property, but does not affect the actual distribution of marital property at divorce or death. For this, there is the Uniform Marriage and Divorce Act of 1970 and 1973 (UMDA).

41

34 UNIF. MARITAL PROP. ACT, 9A U.L.A. 48 (1998).

The UMDA, promulgated by the National

35 Patrick N. Parkinson, Who Needs the Uniform Marital Property Act?, 55 U. CIN. L. REV. 677, 680 (1987). 36 Id. 37 Id. at 678. 38 Id. 39 See generally id. 40 For a discussion of Wisconsin’s experience as the first state to adopt a property system based on the Uniform Marital Property Act, albeit with many modifications, see Howard S. Erlanger & June M. Weisberger, From Common Law Property to Community Property: Wisconsin’s Marital Property Act Four Years Later, 1990 WIS. L. REV. 769 (1990). 41 UNIF. MARRIAGE & DIVORCE ACT, § 307, 9A U.L.A. 288 (1998) (providing

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Conference of Commissioners on Uniform State Laws in the 1970s, advocates equitable distribution of marital property at divorce, which is also the approach of the majority of American states.

The ALI Principles, however, take the opposite approach and presume equal division. These Principles were written by the American Law Institute to pinpoint emerging trends in American family law.42

Another model act finalized by the Commissioners in July 1983 was the Uniform Premarital Agreement Act (UPAA).

They adopt the minority view of property division, rejecting equitable distribution in favor of a strong presumption of equal division. There are limited exceptions, such as if one spouse commits financial misconduct.

43 Many states have adopted some variation of the UPAA.44 The success of this particular model legislation in influencing state legislatures might be due to the states’ efforts to protect spousal premarital contracting, which is one of the most important characteristics of the UPAA. Courts, of course, may differ in their interpretations of state statutes on this topic, reaching various results.45

“Alternative A” and “Alternative B” with respect to the disposition of property in the face of a dissolution of marriage).

42 For an excellent background and commentary on the drafting of the ALI Principles in Family Law, and on property division in particular, see Marsha Garrison, The Economic Consequences of Divorce: Would Adoption of the ALI Principles Improve Current Outcomes?, 8 DUKE J. GENDER L. & POLICY 119, 123 (2001) (“Although the American Law Institute is best-known for its Restatements of the Law, ‘the current disarray in family law’ led the Institute to opt, in this Project, for principles that would ‘give greater weight to emerging legal concepts’ than would a Restatement.”) (quoting Geoffrey C. Hazard, Jr., Foreword to ALI PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (Proposed Final Draft 1997)). 43 UNIF. PREMARITAL AGREEMENT ACT, 9A U.L.A. 379 (Supp. 1986). 44 Charles W. Willey, Effect in Montana of Community-Source Property Acquired in Another State (And Its Impact on a Montana Marriage Dissolution, Estate Planning, Property Transfers, and Probate), 69 MONT. L. REV. 313, 365 (2008). For examples of various states’ UPAA-based laws, see CAL. FAM. CODE § 1615 (West 2004); 750 ILL. COMP. STAT. ANN. 10/1 et seq. (West 1993); and R.I. GEN. LAWS ANN. § 15-17-6 (West 2003). 45 See, e.g., Bakos v. Bakos, 950 So. 2d 1257, 1260 (Fla. Dist. Ct. App. 2007) (finding a premarital agreement signed the day before a wedding voidable but also that the aggrieved party may ratify it); Chubbuck v. Lake, 635 S.E.2d 764 (Ga. 2006) (finding that a premarital agreement was void and unenforceable when it failed to meet the statutory requirement that it be witnessed by two people); Seherr-Thoss v. Seherr-Thoss, 141 P.3d 705, 712 (Wyo. 2006) (determining that the laws governing the enforceability of contracts also govern premarital agreements).

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Both courts and legislatures, however, have recognized a significant freedom of contracting when it comes to premarital agreements,46 which allow prospective spouses to circumvent the statutory defaults governing spouses’ rights and responsibilities not only during divorce or death, but also during marriage. For example, prospective spouses may enter into the agreement to simply assign a piece of property, such as a house, to one of the spouses.47

Alternatively, prospective spouses, through the premarital agreement, may choose to entirely opt out of the default property distribution regime of their state. If prospective spouses reside in an equitable distribution state, they may contract for a community property regime. If they reside in a community property state, they may write a premarital agreement that would keep their property separate.

48 Prospective spouses may also enter into a premarital agreement that changes the characterization of particular property from community.49

In sum, family law in the United States is hardly harmonized across American states, as exemplified by the differing property regimes. Most notably, states differ in their property regimes. While both premarital agreements and model legislation aim to deal with the issues created by the differences in family law among states, federalism empowers states to retain significant control over their family laws, which results in differences in family law among states.

These freedoms, which help ensure predictability, are particularly important given the significant differences among states in their family law regimes.

46 In the United States, premarital agreements are entered into by a couple before marriage, while marital agreements have the same effect but are entered into by a couple after the wedding. See generally Margaret Ryznar & Anna Stępień-Sporek, To Have and to Hold, for Richer or Richer: Premarital Agreements in the Comparative Context, 13 CHAP. L. REV. 27 (2009) (discussing the significant level of freedom to contract such agreements in the United States). 47 Id. at 31. 48 Id. at 31-32. 49 Id. at 30.

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III. FAMILY LAW IN THE EUROPEAN UNION

More than a decade ago, scholars in Europe wondered whether harmonization in the field of family law was necessary, possible, or feasible.50

In the area of matrimonial property law, the most recent issue arising in the harmonization of family law is whether European Union countries can all agree to a common property regime for married couples. Germany and France have prepared a new regulation that introduces a common property regime.

Today, not only is the answer in the affirmative, but family law is undergoing major harmonization efforts in the European Union.

51 The remainder of the European Union countries must now determine whether they too are ready for the common property regime.52

This Part considers harmonization efforts of European Union member states in the area of matrimonial property regimes. However, before considering the specific approaches in existence and the efforts of harmonization, the history of harmonization and the various matrimonial property regimes must be considered.

Although it may seem surprising, the road from different property regimes in European Union countries to a common property regime may not be as long as was expected several years ago.

A. The History of the Harmonization of Family Law

Family law does not fall within the European Union’s scope of competency, which is one of the many reasons for the unlikelihood of complete uniformity in this field. However, this has not prevented efforts to resolve the practical problems connected with the intensified mobility of society and its consequences.

In fact, the primary goal of the European Union is to introduce the relevant rules of private international law, as well as

50 See Esin Örücü, A Family Law For Europe: Necessary, Feasible, Desirable?, in PERSPECTIVES FOR THE UNIFICATION AND HARMONIZATION OF FAMILY LAW IN

EUROPE 551 (K. Boele-Woelki ed., 2003). 51 See infra Part III.C. 52 See Christina Gonzáles Beilfuss, The Franco-German Treaty Instituting a Common Matrimonial Regime of Participation in the Acquisitions: How Could Catalonia Opt in?, in CONFRONTING THE FRONTIERS OF FAMILY AND SUCCESSION LAW 623-632 (A. L. Verbeke et al. eds., 2012).

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the rules of jurisdiction and mutual recognition of decisions.53 Initially, cooperation in civil matters between member states was linked to the idea of a common market, and family issues remained outside the mainstream of integration.54 This arrangement changed with the introduction of the Maastricht Treaty,55 which allowed the extension of judicial cooperation in civil matters. Such cooperation intensified with the Vienna Action Plan of 1998, which dealt with how best to implement the provisions of the Treaty of Amsterdam in the areas of freedom, security, and justice.56 This plan yielded the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, signed by the member states on May 28, 1998.57 Although it has not entered into force, it drew attention to the fact that European integration is not only economic in nature, but also affects the lives of citizens. As a result, family law became part of the integration process.58 The scope of judicial cooperation in civil matters has extended the Treaty of Amsterdam.59

Currently, family matters are covered by several regulations, including the Council Regulation (EC) No 2201/2003 of November 27, 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (Brussels II bis).

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53 Cezary Mik, Międzynarodowe prawo Rodzinne Unii Europejskiej na tle Ewolucji Współpracy Sądowej w Sprawach Cywilnych, in ROZPRAWY PRAWNICZ KSIĘGA

PAMIĄTKOWA PROFESORA MAKSYMILIANA PAZDANA 209 (Leszek Ogiegło, Wojciech Popiołek, Maciej Szpunar eds. 2005).

This regulation is not, however, applied to the property consequences of marriage. Instead, these consequences were the subject of the Green Paper

54 Id. at 212. 55 Clare McGlynn, FAMILIES AND THE EUROPEAN UNION: LAW, POLITICS AND

PLURALISM 155-56 (2006). 56 Summaries of EU Legislation, EUROPA, http://europa.eu/legislation_summaries/other/l33080_en.htm (last visited Mar. 4, 2013). 57 Id. 58 Mik, supra note 53, at 213-14. 59 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 30, Oct. 2, 1997, available at http://www.europarl.europa.eu/topics/treaty/pdf/amst-en.pdf. 60 Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, Repealing Regulation (EC) No 1347/2000, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003R2201:EN:HTML.

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on Conflict of Laws in Matters concerning Matrimonial Property Regimes, including the Question of Jurisdiction and Mutual Recognition61 presented by the Commission in 2006. The paper aimed at obtaining results showing whether practical problems62 should and could be eliminated by a special regulation. Accordingly, the paper launched a consultation regarding matrimonial property regimes in the international context. On the basis of this consultation, a draft on due regulation has been prepared.63

The interest in the property consequences of marriage led to the European Commission’s preparation in 2011 of a proposal for a Council Regulation on jurisdiction, applicable law, and the recognition and enforcement of decisions in matters of matrimonial property regimes.

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61 Green Paper on Conflict of Laws in Matters Concerning Matrimonial Property Regimes, Including the Question of Jurisdiction and Mutual Recognition, at 499 (Jul. 17, 2006), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2006:0400:FIN:EN:PDF [hereinafter Green Paper].

This proposal is now being

62 Id. at 3. The Green Paper states: A particular consequence of the increased mobility of persons within an area without internal frontiers is a significant increase in all forms of unions between nationals of different Member States or the presence of such couples in a Member State of which they do not have the nationality, often accompanied by the acquisition of property located on the territory of several Union countries. The preliminary study commissioned by the Commission in 2002 revealed that more than 5 million foreign EU nationals lived in another Member State of the Union, while there were around 14 million non-EU foreign residents in the Union in 2000. This study estimates that almost 2.5 million items of real property were owned by spouses and located in Member States different from that of their residence.

Id. 63 See Explanatory Memorandum of Proposal for a Council Regulation on Jurisdiction, Applicable Law and the Recognition and Enforcement of Decisions in Matters of Matrimonial Property Regimes, COM (2011) 126 final (Mar. 16, 2011), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0126:FIN:EN:PDF. 64 Proposal for a Council Regulation, on Jurisdiction, Applicable Law and the Recognition and Enforcement of Decisions in Matters of Matrimonial Property Regimes (Mar. 16, 2011), available at http://ec.europa.eu/justice/policies/civil/docs/com_2011_126_en.pdf [hereinafter Proposal]. For more background on the steps taken to introduce the regulation of matrimonial property regimes, see R. Farrugia, The Future EU Regulation Concerning Matrimonial Property Regimes, in LATEST DEVELOPMENTS IN EU PRIVATE INTERNATIONAL LAW, 63-82, (B. Campuzano Díaz et al. eds. 2011), available at http://centro.us.es/cde/justicia_civil_2011/mod_005.html.

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considered in the European Parliament.65

Last but not least, there has been some work by academic scholars in the European Union on the topic of harmonization. Specifically, six professors

If it passes, the proposal would lead to the harmonization of conflict rules in the various European Union member states.

66 have established the Commission of European Family Law (CEFL),67 which consists of experts in the field of family law and comparative law from all European Union countries, as well as other European countries.68 The Commission works on the harmonization of family law, studies comparative law, and searches for a common core that could be helpful in solving legal problems.69 Furthermore, the Commission surveys the role of future European Union member states in the process of the harmonization of family law. The Commission has chosen a method of working similar to the American Restatements—it tries to formulate the rules, which form jus commune of analyzed legal systems and can be a source of inspiration for national legislators.70 If there is no possibility to establish common solutions, the Commission offers its own approach based on what it considers better law.71

The Commission has recently focused on marital property law. In the framework of this research, national reports were published

72 and serve as important sources for comparative studies. The aim of the academics involved in this project is not only to analyze the law on the books, but also the law in action.73

65 Judicial Cooperation in Civil Matters: Jurisdiction, Applicable Law and Recognition and Enforcement of Decisions in Matters of Matrimonial Property Regimes, COM (2011) 126 final (Mar. 16, 2011), available at http://www.europarl.europa.eu/registre/docs_autres_institutions/commission_europeenne/com/2011/0126/COM_COM(2011)0126_EN.pdf.

66 The professors are K. Boele-Woelki (Utrecht), F. Ferrand (Lyon), N. Lowe (Cardiff), D. Martiny (Frankfurt an der Oder), W. Pintens (Leuven), and D. Schwab (Regensburg). 67 History, COMMISSION ON EUR. FAM. L., http://www.ceflonline.net/ (last visited Mar. 4, 2013) [hereinafter CEFL History]. 68 There are experts from the non-EU countries of Russia and Switzerland. 69 CELF History, supra note 67. 70 Walter Pintens, Europeanisation of Family Law, in PERSPECTIVES FOR THE

UNIFICATION AND HARMONISATION OF FAMILY LAW IN EUROPE 1, 29 (K. Boele-Woelki ed., 2003). 71 Id. 72 CEFL History, supra note 67. 73 Regarding the new trends in methodology, see Ingeborg Schwenzer, Methodological

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This is especially crucial in countries where legal precedents are not sources of law.

B. European Matrimonial Property Regimes

Before reviewing the present progress towards harmonization in marital property law, a brief description of marital property law in Europe should be provided. This is not an easy task given that the European Union countries’ approaches towards matrimonial property are diverse.74

Broadly, matrimonial property legal regimes can be divided into statutory and contractual. Contractual property regimes are those into which couples may contract, but ultimately they are not popular because marital property agreements are not common, although their number is increasing.

75 If the spouses choose to contract into separation of property as their marital property regime, they do so likely because it is the simplest regime.76

The differences between these various regimes become the key issue in their harmonization. The two opposite approaches to the property consequences of marriage are represented by the default regimes in England and the Netherlands. English law does not recognize any special marital property regime

However, the vast majority of marriages remain in the statutory default regimes.

77 and marriage does not affect the property relations of spouses.78

Aspects of the Harmonisation of Family Law, 6 EUR. J.L. REFORM 145, 146 (2004).

In other words, the spouse’s property relations are treated in the same way as the property relations of those who are not married. While there are

74 These kinds of differences can be an obstacle in harmonization. Although the number of international marriages and freedom of movement makes harmonization necessary, it is not possible to ignore all these differences, especially those connected to national cultures and models of family. 75 For relevant information relating to Poland, see Eiżbieta Holewińska-Łapińska, Ochrona Wierzyciela Jednego z Malżonków Pozostających w Umownym Ustroju Majątkowym, in II STUDIA I ANALIZY SĄDU NAJWYŻSZEGO 79-80 (Krzysztof Ślebzak & Włodzimierz Wróbel eds. 2008). 76 Regarding the new trends in the field of matrimonial contracts, see Branka Rešetar, Matrimonial Property in Europe: A Link between Sociology and Family Law, 12.3 ELECTRONIC J. OF COMP. L. 13-16 (2008), available at http://www.ejcl.org/123/art123-4.pdf. 77 CAROLYN HAMILTON & ALISON PERRY, FAMILY LAW IN EUROPE 105 (2d. ed., 2002). 78 Notably, relationships between spouses are regulated by the Married Woman’s Property Act (1882), Family Law Act (1996), and Matrimonial Causes Act (1973).

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certain consequences of marriage, overall they remain insufficient to say that a special regime exists between the spouses.79 England’s approach can be described as a total separation of property, if one would like to compare this approach to those countries wherein marital property regimes exist. Also, English law does not recognize marital agreements in the sense that is typical in other European countries.80 Spouses can stipulate otherwise in an agreement, but they are subject to general contract principles. Therefore, although spouses may enter into agreements, there is not any particular regime that results between them.81

The Netherlands takes an opposite approach to marital property, employing total community of property as the default property regime. Although community property is generally very popular in Europe, it is not a total community of property that is popular, but more or less extended community property or deferred community of property.

82 In the Netherlands, on the other hand, the community property comprises all of present and future property, as well as all debts from the moment of the wedding.83

Between these two opposite approaches to matrimonial property regimes in England and the Netherlands are many intermediate approaches with more elements of separation of property or nuanced features of community of property. For example, the default regime in Germany is the sharing of accruals. The literal translation of Zugewinngemeinschaft, the name of the regime, is community of surplus.

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79 See Green Paper on Conflict of Laws in Matters Concerning Matrimonial Property regimes, Including the Question of Jurisdiction and Mutual Recognition prepared by European Land Registry Association 2 (Jul. 17, 2006), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2006:0400:FIN:en:PDF.

However, this translation can

80 Regarding the different meanings and consequences of premarital agreements in the United States and in Europe, see Ryznar & Stępień-Sporek, supra note 46, at 27. 81 Regarding premarital agreements in England, see Nigel Lowe & Roger Kay, The Status of Prenuptial Agreements in English Law – Eccentricity or Sensible Pragmatism?, in FAMILY FINANCES, 395 (Bea Verschraegen ed., 2009). 82 See Rešetar, supra note 76. 83 JEROEN CHORUS, PIET-HEIN GERVER, & EWOUD HONDIUS, INTRODUCTION TO

DUTCH LAW 84, (4th ed. 2006). 84 The term “community of accrued gains” is also used. See BÜRGERLICHES

GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, § 1363 (Ger.) (Neil Musset trans., Langenschedit Translation Service 2012), available at http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p4710.

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be misleading85 because during the period of the marriage, there is no community property but a separation of property, which means that each spouse has his or her own separate property.86 If the marriage ends, the surplus of each spouse is calculated and divided between the spouses; it is possible to take part in the surplus of the other spouse.87 It is characteristic for this regime that all assets acquired during the marriage belong to one of the abovementioned property types.88 The separate property is administered solely by each spouse and cooperation of the spouses is necessary only in some cases.89

The most common cause for dissolution of the regime is the death of either spouse. In this case, two approaches are possible.

The distributions of surpluses or their equalization come in the case of dissolution of the regime between the spouses.

90 According to the first one, the position of the surviving spouse comes to strengthen as an heir. The strengthening of the position lies in the fact that the spouse’s share of inheritance on intestacy increases by a quarter, regardless of whether there was an increase in the value of the assets of the deceased spouse. If the surviving spouse does not become an heir and if he has no right to a legacy, he may demand equalization of the accrued gains.91

The end of the property regime means that a claim for equalization (Ausgleichforderung), which is a monetary claim, comes into existence.

According to the second approach, the surviving spouse receives a claim for compensation of the equalization of surpluses.

92

85 Leslie K. Thiele, The German Marital Property System: Conflict of Laws in a Dual-nationality Marriage, 12 CAL. W. INT’L L.J. 78, 87 (1982).

It is therefore essential to establish what is meant by surpluses (Zugewinn): surpluses are the difference between the initial and final value of the property of each spouse.

86 See BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE] (Ger.), § 1363(2). This is true only if spouses had not entered into a marital agreement. If they had, then this statement is true only during the period of the default property regime. Id. § 1363(1). 87 See Nina Dethloff, Dieter Martiny, Germany, in EUROPEAN FAMILY LAW IN

ACTION 706-709 (K. Boele-Woelki, B. Braat, I. Curry-Sumner ed., 2009). 88 Id. 89 See BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE] (Ger.), §§ 1365, 1369. 90 See Nina Dethloff & Dieter Martini, National Report: Germany 4 (Aug. 2008), available at http://ceflonline.net/wp-content/uploads/Germany-Property.pdf. 91 See BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE] (Ger.), at § 1371(2). 92 Id. §§ 1371(2), 1372. See also §§ 1373-1390. Importantly, this is a general principle. It is worth mentioning that pursuant to BGB § 1383, the family court may order that the debtor is to transfer particular objects of his assets to the creditor. Id. § 1383.

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According to the official translation of § 1373 of the code, Bürgerliches Gesetzbuch (BGB), “accrued gains means the amount by which the final assets of a spouse exceed the initial assets.”93 The initial value is the value of the assets at the beginning of the regime after deducting the liabilities.94 The final value of the assets is the value of the assets that belong to the spouse at the end of the property regime, after the deduction of the liabilities. Liabilities are to be deducted beyond the amount of the assets.95

In France,

96 Italy,97 and Poland,98 extended community of property is the default property regime. Since 1965, the statutory regime in France has been a community of achievements attained during the marriage (le regime legal de la communauté réduite aux acquets).99 The basic feature of the French community of property is the existence of three kinds of spousal property: the main one is common property (la communauté), which is distinguishable from the separate property of each spouse (les progres).100 Common property includes goods, as well as the rights acquired during the marriage by the spouses jointly, or by either of them, using the proceeds of their professional activities or of their common property or separate property.101 The presumption is that assets belong to the common property.102 Meanwhile, separate property assets consist of items that were acquired before marriage or by inheritance or donation.103 In addition to goods used only to satisfy the personal needs of a spouse, the spouse’s separate property includes claims for material and immaterial damages.104

93 See BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE] (Ger.), § 1373.

94 Id. § 1374(1). 95 Id. § 1375(1). 96 INTRODUCTION TO FRENCH LAW 278 (George A. Bermann & Etienne Picard eds., 2008). 97 Max Rheinstein & Mary Ann Glendon, Interspousal Relations, in 4 INT’L

ENCYCLOPEDIA OF COMP. L. 95. (1980). 98 Elżbieta Skowrońska-Bocian, Family and Succession Law, in INTRODUCTION TO

POLISH LAW 96 (Stanisław Frankowski & Adam Bodnar eds., 2005). 99 The English translation of the name of the regime used by the governmental website is “statutory community of property.” 100 CAROLYN HAMILTON & KATE STANDLEY, FAMILY LAW IN EUROPE 134 (1995). 101 CODE CIVIL [C. CIV.] art. 1401 (Fr.) (Georges Rouhette trans., 2006), available at http://sopheaksrey.files.wordpress.com/2012/05/french-civil-code_en_2006.pdf. 102 Id. art. 1402. 103 Id. art. 1405. 104 Id. art. 1404.

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Property acquired in exchange for property that separately belonged to one of the spouses is itself separate property.105

While Scandinavian countries are known for their more progressive family laws,

106 they do not have a radically progressive matrimonial property law and, instead, take an approach similar to other countries. Indeed, in the field of marital property law, the Scandinavian approaches are not very modern and have some inclination towards separation of property, as well as community of property.107

The default regime in Denmark is also deferred community of property.

108

Sweden has taken an approach known as hidden joint ownership. Upon divorce, all marital property is divided equally between the spouses in principle.

Under Danish law, deferred common property is the subject of equal division, but it seems that the scope of the property considered common is broader.

109 The statutory regime is also the so-called deferred community of property, and surprisingly, Swedish law lacks provisions on alternative marital property regimes.110 According to the default rules, each spouse can claim an equal division of the value of the combined balance of the spouses’ marital property, after deductions for the debts of each spouse.111

Given the variety of marital property regimes in European Union member countries, the question arises whether it is possible to harmonize family law without the opposition of the member states, which are often accustomed to their own property regimes.

112

105 Id. art. 1407.

This diversity among countries in the field of family

106 Compare Masha Antokolskaia, Family Law and National Culture, 4 UTRECHT L. REV. 25, 28-29 (2008) (Neth.) (arguing against the cultural constraints argument). 107 For example, pursuant to the Norwegian Marriage Act, “[M]arriage entails no limitation of the right of a spouse to dispose of what he or she owns when the marriage is contracted or later acquires. . .” Lov om ekteskap [The Marriage Act] [Nor.] Jul. 4, 1991 § 31, available at http://www.regjeringen.no/en/doc/laws/acts/the-marriage-act.html?id=448401. 108 Ingrid Lund-Andersen, Ingrid Magnussen, National Report: Denmark, 7 (Aug. 2008), available at http://ceflonline.net/wp-content/uploads/Denmark-Property.pdf. 109 Rešetar, supra note 76, at 4. 110 Maarit Jänterä-Jareborg, Margareta Brattström, & Kajsa Walleng, National Report: Sweden, 11 (Aug. 2008), available at http://ceflonline.net/wp-content/uploads/Sweden-Property.pdf. 111 Äktenskapsbalken [The Marriage Act] [Swed.], Jul. 7, 1987, ch. 11 § 3. 112 A good example is Poland, where, before the reform of marital property law of 2005,

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law is an argument against the possibility of unifying marital property law. However, harmonization differs in meaning than unification.113

Moreover, although the European Union does not have the competency to introduce a common property regime, this does not prevent progress of harmonizing marital property law. The greater the number of international marriages, the more important it is to take steps towards harmonizing family law. Indeed, the number of such marriages is increasing

114 and these couples’ situation often illustrates the numerous practical problems of a lack of harmonized family law.115

To help alleviate these problems, the key may be in initiatives aimed at conducting comparative law research and the development of substantive solutions. Accordingly, the European Union, the Commission, and the European Parliament are all working on regulations addressing jurisdiction, applicable law, and the recognition and enforcement of decisions in matters of matrimonial property regimes.

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there was debate whether separation of property or separation of property with equalization of surplus should replace community of property as the default regime. Even some members of Parliament were not ready for any changes in the default property regime. See Tadeusz Smyczyński, Reforma Malżeńskiego Prawa Majątkowego, 18 MONITOR PRAWNICZY 827 (2004).

Furthermore, a few countries in

113 See supra Part I. 114 According to data from 2007, 300,000 marriages of the total 2.4 million in the European Union were international marriages. In 2007, there were 1.04 million divorces and 140,000 of them involved international marriages. See Proposal for a Council Regulation on Jurisdiction, Applicable Law and the Recognition and Enforcement of Decisions in Matters of Matrimonial Property Regimes and the Proposal for a Council Regulation on Jurisdiction, Applicable Law and the Recognition and Enforcement of decisions Regarding the Property Consequences of Registered Partnerships, at 3, SEC (2011) 328 final (Jan. 16, 2011) [hereinafter Proposal for a Council Regulation]. 115 For example, there could be a problem with establishing the property consequences of the dissolution of the marriage of citizens of different member states who married in one country, but then lived in a few other countries, where they acquired a significant property. The question is what law should be applied and what is the jurisdiction. 116 Proposal for a Council Regulation on Jurisdiction, Applicable Law and the Recognition and Enforcement of Decisions in Matters of Matrimonial Property Regimes, COM (2011) 126 final (Mar. 16, 2011), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0126:FIN:EN:PDF. According to information available on the homepage of the European Parliament, the Parliament “will turn its attention to matrimonial property regimes and property consequences of registered partnerships for transnational couples” in 2013. See Headlines, EUR. PARL., http://www.europarl.europa.eu/news/en/headlines/content/20120106FCS34939/6/html/Cross-border-relationships-which-court-what-legislation (last visited Mar. 4, 2013). Currently, this issue is still awaiting the first reading in the European Parliament. The proposal for a

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the European Union aim to develop shared approaches in the substantive field of family law, which demonstrates that integration in this area has begun.

C. Harmonization Efforts in Europe

Initially, doubts about the possibility of family law harmonization arose because each member State of the European Union had different laws and there were some cultural differences among them. This issue was the subject of Masha Antokolskaia’s research, in which she noted:

All things considered, the conclusion can be none other than that the cultural constraints argument is beyond redemption. Its core assumptions cannot be upheld. Family law is not so much embedded in unique national culture and history, but rather in a pan-European culture and history. Pertinent national family laws are determined by political, rather than cultural factors, and these are fluid. Every now and then family laws do converge spontaneously. However, it remains to be seen what all this means for the deliberate harmoni[z]ation of family law.117

Antokolskaia, therefore, noticed that the actual directions of change in family law across Europe were similar, with the differences being in their timing and speed. She also noted the differences between “conservative” and “progressive” family law.

118

Council Regulation has recently been discussed by the Committee on Women’s Rights and Gender Equality. See European Parliament, Committee on Women’s Rights and Gender Equality, Draft Opinion, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-478.403+01+DOC+PDF+V0//EN&language=EN (last visited Mar. 4, 2013). The prepared proposal of a Council regulation aims to solve the practical problems of international couples. The explanatory memorandum of the proposal for a regulation states that the regulation is part of “the Commission’s efforts to dismantle the obstacles faced by EU citizens in their lives when they try to exercise the rights the EU confers on them.” In the latter half of 2012, some amendments to the proposal for the regulation were prepared. These amendments are available at www.europarl. europa.eu/committees/en/juri/draft-reports.html.

However, such differences do not mean that harmonization cannot be achieved. On the contrary, taking into account the above conclusions of Masha Antokolskaia, one can say that there is some room for harmonization in the field of family law.

117 Antokolskaia, supra note 106, at 34 (arguing against the cultural constraints argument). 118 See id. at 28-29.

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The first harmonization initiatives were made more than ten years ago. In 1997, Katherina Boele-Woelki published her article entitled “The Road Towards a European Family Law,” wherein she wrote about the interest in a European family law, as well as the work of academics and the Council of Europe on the unification or harmonization of family law and ways that could lead to a family law on an European level.119 She wrote that the differences between national legislations in the European Union were impediments to attaining an actual European identity.120 Yet, she predicted integration in the field of family law, writing that economic and political integration made it necessary to introduce attuned family law regulations.121 One of the areas that she considered possible for harmonization was marital property law.122 Walter Pintens also noted that the roots of marital property law are not “too deeply ingrained in the fundamental cultural values of a society, such that unification is possible.”123

As discussed, the dominant marital property regime in most European countries is some form of community of property.

124 However, the differences between the approaches among countries are quite significant. In some countries, for example, there is a default regime of separation of property.125

The European Commission’s proposed regulation on this subject is that all property of the spouses should be subject to the same law, including immovable property.

In others, it is some form of community property. In light of these differences in matrimonial property regimes, it is important to clearly indicate which law is applicable to a particular legal relationship.

126 The choice of applicable law that can be made by spouses is limited, and the chosen law must be based on the law of the habitual residence or on the nationality of one of the spouses.127 If the choice is not made, there are also special rules to establish applicable law.128

119 Katherina Boele-Woelki, The Road Towards A European Family Law, 1 ELEC. J. COMP. L. 1, 6 (Nov. 1997), available at http://www.ejcl.org/11/art11-1.html.

120 See id. at 8. 121 Id. 122 Pintens, supra note 70, at 9-12. 123 Id. at 12. 124 See supra Part III.B. 125 Pintens, supra note 70, at 63. 126 Proposal, supra note 64, art. 15. 127 Id. art. 16. 128 Id. art. 17.

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This is important because the vast majority of spouses will likely not make a choice of law regarding property matters.

The European Commission’s proposed regulation is essential on the grounds of procedural law. It enables spouses to have the courts of the same member state handle various procedures in connection with matrimonial property regimes after the death of one of the spouses, divorce, legal separation, or marriage annulment.129

Meanwhile, the latest advancement in the harmonization of substantive matrimonial property law has taken the form of the common marital property regime by Germany and France. Previously, there had been no substantive law that could be applied across the European Union. By agreement, Germany and France became the first countries to adopt shared substantive law through the Common Matrimonial Property Regime in January 2010, but other member states may accede to the agreement.

The last chapter of the regulation regards recognition, enforceability, and enforcement and would introduce mutual recognition. This is especially important for the idea of integration of the member states.

130 The common property regime adopted in this agreement is a compromise approach.131 Although not a default regime, spouses may contract into this regime. The new regime is inspired by the above-mentioned community of accrued gains (Zugewinngemeinschaft), which is the default regime in Germany, and, in France, is a contractual regime into which couples must contract.132

One characteristic of the new Common Matrimonial Property Regime in Germany and France is that each spouse has his or her own property. However, the spouses’ dispositions regarding the common household and the family home need the approval of the other spouse.

133

129 Id. arts. 3-4.

This property regime ends in the case of a

130 Andreas Fötschl, The COMPR of Germany and France: Epoch-Making in the Unification of Law, 4 EUR. REV. PRIVATE L. 881 (2010). 131 This kind of a regime has the advantages of both “extreme” approaches in matrimonial regimes. On the one hand, it gives freedom in the administration and distribution of the property of each spouse during the marriage. On the other, it guarantees an economic equality in a traditional model of family wherein one spouse is a bread winner and one is a homemaker. 132 The name of the regime is “du régime de participation aux acquêts.” C. CIV. § 1569 (Fr.) (detailing participation in acquisitions). 133 Franco-German Convention, Feb. 4, 2010, Fr., Ger., art. 5 [hereinafter COMPR]

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spouse’s death, a change in the regime by the parties’ divorce, or other judicial decision.134 In such situations, it is important to establish the initial and final value of the property of each spouse. For the purposes of calculating their values, all liabilities are deducted. There are also other rules on how to count the initial and final value of property.135 The crucial issue is the accrued gain—the difference between the initial and final value of the property of each spouse. The spouse whose gain is lower is entitled to claim in money half the difference of the compared gains.136 However, there is a limit of the claim: it cannot exceed 50% of the total assets of the debtor.137

This bilateral cooperation between France and Germany on the Common Matrimonial Property Regime is relevant to the other member states, as well. For example, in the countries that have chosen not to adopt this property regime, spouses could opt for French or German law and chosen the new regime.

138 In this sense, the German-French cooperation is very important for the entire European Union. Furthermore, the Common Matrimonial Property Regime is a kind of a substantive model for Europe139

Therefore, family law in the Europe Union is not only important in each individual country, but has now acquired a new European dimension due to the mobility of society. Although previously there had been no substantive European family law regarding marital property law, the new Common Matrimonial Property Regime has been recently introduced by Germany and France has begun a new era in marital property law in the European Union. Procedural harmonization of family law, furthermore, may be ushered in by the European Union Commission’s proposal for a Council Regulation, which focuses on jurisdiction, conflicts of law, as well as recognition and enforcement of decisions.

and its approach should be taken into account in further harmonization efforts.

140

(providing for an optional common matrimonial property regime).

This proposal for a Council

134 COMPR, art. 7. 135 Fötschl, supra note 130, at 885-886. 136 COMPR, art. 12. See also Fötschl, supra note 130, at 886. 137 COMPR, art. 14. 138 Fötschl, supra note 130, at 881. 139 There are, however, some critics of this model. See, e.g., Fötschl, supra note 130. 140 See Proposal, supra note 64.

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Regulation is a very important step forward in the European Union’s harmonization efforts.141

IV. IMPLICATIONS OF THE HARMONIZATION OF FAMILY LAW

This Article has used matrimonial property as a case study for the harmonization of family law, but this is only one example of the increasing harmonization efforts in family law. These efforts prompt certain questions about harmonization, namely, its goals, process, and manner.

There may be many goals of harmonization of laws, such as to avoid unfairness caused by inconsistent laws or to ease the many issues of mobile couples who move among jurisdictions during the course of their marriages. In 2007, 300,000 marriages of the total 2.4 million marriages in the European Union were international marriages. In the same year, there were 1.04 million divorces and 140,000 of them involved international marriages.142

However, it is not just divorce that causes these practical problems. When matrimonial property laws differ by state, couples may not even realize the differences and, therefore, may fail to protect themselves during the marriage.

This increasing mobility of couples today results in major conflicts of law issues that harmonization may avoid, such as which property should be divided between the spouses upon divorce, and which court may have jurisdiction.

143 For example, consider a married couple wherein the wife is a homemaker and the husband is a retired business executive. If the couple resided in a common law state during the income-earning years of their marriage, the property accumulated during that time would be the separate property of the husband.144 Upon his death, the wife would likely receive an elective share of his property, securing her welfare.145

141 Id.

However, if they retire to a community property state where there is no elective share because a stay-at-home spouse owns half of the spouse’s income and needs no additional protection from the law, the wife remains unprotected without

142 See Proposal for a Council Regulation, supra note 114. 143 See JESSE DUKEMINIER, JAMES E. KRIER, GREGORY S. ALEXANDER, ET AL., PROPERTY 394 (2010). 144 See supra Part II. 145 DUKEMINIER, supra note 143, at 386.

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contracting around the matrimonial property default.146

Although the goals of harmonization may be beneficial to many mobile couples, the major problem with, and obstacle to, the harmonization of family law is that different jurisdictions may have different cultures. This is especially true in the European Union, which encompasses a multitude of countries. Notably, these countries have different levels of religiosity, influencing their family laws.

147

The European Union’s experience in harmonizing matrimonial property law has started to answer these questions. It has illustrated the delicacy of family law harmonization, but the continued success of harmonization in the area of matrimonial property laws also illustrates that it is possible. Although this success may result from the perception that matrimonial property is among the least controversial aspects of family law,

To harmonize these laws would impact the very fiber of each country, in whichever direction the harmonization would take. And, in determining the direction of such harmonization, the process may be controversial, prompting the question of who should determine it.

148 it is also possible that some basic principles may be agreed upon by various jurisdictions, a common denominator of sorts. This agreement may be harnessed to uniformly protect the vulnerable members of society, such as children.149

Furthermore, the harmonization efforts in the European Union show the possible methods and processes of harmonization. The European Union, the Commission, and the European

146 Nancy Maxwell also notes the problem of mobility and inconsistent family law in the case of same-sex couples. See Maxwell, supra note 6, at 1. 147 See supra Part II.A. 148 See supra notes 111-12 and accompanying text. 149 For example, children may be economically disadvantaged by the divorce of their parents. On these grounds, a Washington court ordered the noncustodial parent to pay for his child’s college education. Childers v. Childers, 575 P.2d 201 (Wash. 1978). See also Robert M. Washburn, Post Majority Support: Oh, Dad, Poor Dad, 44 TEMPLE L.Q. 319, 327 (1971) (“A number of courts adopt the policy that a child should not suffer because his parents are divorced. The child of divorced parents should be in no worse position than a child from an unbroken home whose parents could be expected to supply a college education.”). Children of divorced parents may very well suffer economic disadvantages. In 1993, for example, the mean income for divorced American mothers was $17,859, while for divorced fathers it was $31,034. Arthur B. LaFrance, Child Custody and Relocation: A Constitutional Perspective, 34 U. LOUISVILLE J. FAM. L. 1, 6 (1996). But see Kelly Bedard & Olivier Deschênes, Sex Preferences, Marital Dissolution, and the Economic Status of Women, 40 J. HUM. RES. 411 (2004) (suggesting that divorced women live in households with more income per person in comparison to never-divorced women).

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Parliament have all become involved in addressing the harmonization of family law, in addition to a commission of professors. In formulating legislation harmonizing family law, it will be important, in any setting, to have members represent the various views and to have multiple members. Additionally, a multilateral commission on harmonizing family law would have greater legitimacy than other forms of legislators.

Nonetheless, in the United States, it is doubtful whether the European level of harmonization in family law is desirable or realistic given the particular American federal system. However, there are important alternatives to harmonization that can bridge differences in laws among the states when necessary and reduce their impact on individual couples. Principal among them are premarital agreements.

Premarital agreements permit prospective spouses to plan their property relations in the event of a divorce and death, but also importantly, they allow couples to determine how to hold their property during the marriage. Therefore, couples may select a property regime and maintain this regime no matter to which state they move.150 In this way, the couple is able to avoid any state default regimes of community property and equitable distribution. Furthermore, when legislation or case law alters these rights and responsibilities, as is being done in the European Union,151 premarital agreements protect spouses from being governed by unexpected changes in the law. Of course, there are certain limitations to premarital agreements in that their enforceability is subject to procedural and substantive review by the courts, and many couples are discouraged by the notion that premarital agreements are unromantic.152

The European Union’s experiment in the harmonization of matrimonial property law nonetheless offers interesting lessons to the United States. Importantly, it shows that harmonization of

150 See supra Part II.A. 151 See supra Part III. 152 Many prospective spouses perceive premarital agreements as signaling divorce. See, e.g., Darian M. Ibrahim, The (Not So) Puzzling Behavior of Angel Investors, 61 VAND. L. REV. 1405, 1441 (2008) (suggesting premarital agreements signal the possibility of divorce); Saul Levmore, Norms As Supplements, 86 VA. L. REV. 1989, 2021 (2000) (suggesting premarital agreements signal distrust); Lior Jacob Strahilevitz, Reputation Nation: Law in An Era of Ubiquitous Personal Information, 102 NW. U. L. REV. 1667, 1718 (2008) (identifying, as a classic example of signaling behavior, the lack of a prenuptial agreement as a means of signaling love prior to a marriage).

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certain aspects of family law is possible, despite varying viewpoints, religions, and politics. It also reveals the compromises made in formulating consistent family law policies, as well as the legislative processes necessary to achieve such a goal. Although initial harmonization efforts have been successful in the European Union to date, it is important to continue tracking the next steps to see the ultimate result.

V. CONCLUSION

One of the most dynamic aspects of European family law today is the push to harmonize family laws in member states, particularly in regard to matrimonial property. This effort has been accelerating in the past two years, and includes a recent pending proposal by the European Union Commission for the harmonization of matrimonial property regimes.

The structure of federalism in the United States likely does not permit harmonization on nearly the same scale as in the European Union. Federal family law has been limited to a few issues viewed as requiring federal involvement, such as child support collection153

Nonetheless, the European Union’s harmonization efforts offer interesting and important insights into the field of family law. The relevant successes to date illustrate that it may very well be possible to harmonize the field of family law in Europe, despite varying viewpoints, religions, and politics. They also reveal the compromises countries must make in formulating consistent family law, as well as the legislative processes necessary to achieve such a project. Nonetheless, harmonization in the European Union is still very much in progress, and it is important to continue learning from the process while awaiting its results.

or issues at the intersection of the United States Constitution and family law. Meanwhile, uniform model acts provide a direction for states, but with differing levels of influence in different states. Therefore, the most effective method for prospective spouses to avoid state differences and defaults in family law is to enter into premarital agreements and contractually arrange for their preferred matrimonial property regime.

153 See supra notes 30-32 and accompanying text.

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