Eastern Partnership and Family Law

The article shows that the neighbouring states are conserved to family law as conservative or regressive states by the definition of Antokolskaia. See footnote 2.

See Antokolskaia about the regressive and progressive member states (Antokolskaia 2010).

Basically the legal norms providing the concept of family, family life and marriage.

Antokolskaia (2010).

See Garrido Gómez (2014), p. 4; Needham (2014), p. 42.

Analysing the role of culture as a main tool in such justification process, author supports the view that in the context of family law in Europe it is not correct to refer to the different traditions of member states’ family relations as hindering harmonisation or agreements on how to solve those differences. Author states that in general those differences are not based on deep social traditional values that a state needs to protect but are more “haphazard” in nature or, even more, outdated. About the culture and family law in Europe, see also Alpa (2010), p. 3.

Danesi and Perron (2005), p. 31.

Author uses the word “culture” in singular form on purpose. She states that in most family law relations in Europe we should speak about one single European culture. Differences in general are so unimportant that it is unreasonable to refer to them at all.

See also Gephart (2014).

See also Garrison and Scott (2012), p. 315.

Antokolskaia’s description of the historical development of family law in Europe shows also a change in the same direction but in different timing (Antokolskaia 2003, pp. 53, 65).

Örücü (2003, 2010).

This would influence the family law developments in EaP countries as the current “tolerance” will be changed to certain obligatory rules.

See http://​eeas.​europa.​eu/​eastern/​index_​en.​htm (25.10.2014).

Croatia joined the Eastern Partnership on 1 July 2013.

See http://​eeas.​europa.​eu/​enp/​index_​en.​htm (25.10.2014).

ENP framework is proposed to 16 of EU’s closest neighbours—Algeria, Armenia, Azerbaijan, Belarus, Egypt, Georgia, Israel, Jordan, Lebanon, Libya, Moldova, Morocco, Palestine, Syria, Tunisia and Ukraine. EaP covers only Armenia, Aserbaijan, Georgia, Moldova, Ukraine and Belarus.

See Multilateral Platforms 2014–2017. Available at: www.​eeas.​europa.​eu/​eastern/​index_​en.​htm and EaP Culture Programme (the programme’s overall objective is to support the role of culture in the region’s sustainable development and promote regional cooperation among public institutions, civil society, cultural and academic organisations in the Eastern Partnership region and with the European Union). Available at: www.​euroeastculture.​ee (15.01.2015).

See http://​eeas.​europa.​eu/​enp/​documents/​action-plans/​index_​en.​htm (25.10.2014).

See http://​eeas.​europa.​eu/​enp/​documents/​action-plans/​index_​en.​htm (25.10.2014).

See Platform 2 Economic integration and convergence with EU policies. http://​eeas.​europa.​eu/​eastern/​platforms/​index_​en.​htm (25.10.2014).

See http://​ec.​europa.​eu/​geninfo/​query/​resultaction.​jsp?​QueryText=​Work+Programme+2​014-2017&​query_​source=​ENTERPRISE&​swlang=​en (25.10.2014).

See Stancová (2010).

See Implementation of the ENP in 2013 Regional Report: Eastern Partnership. Joint Staff Working Document. Brussels, 27.03.2014. SWC(2014) 99 final.

E.g., the promotion of democracy and rule of law, improvement training of judges, prosecutors and officials with regard to human right issues (see the ENP Action Plans www.​eeas.​europa.​eu).

E.g., see Rees v UK 1986, Cossey v UK 1990, X, Y and Z v UK 2006, Vallianatos and others v Greece 2013.

E.g., matrimony, with or without children; common law couples; single-parent families; reconstituted families; etc. (Garrido Gómez 2014, pp. 1–2); see for a definition of family Needham (2014). Willekens states that “the concept of the family is just as riddled with ambiguities as the concept of law. The notion of the “family” may alternatively or cumulatively refer to (1) kin relations; (2) the relations between cohabiting sexual partners; (3) the relations between spouses, whether cohabiting or not; or (4) the relations between the members of a household that includes children.” Willekens (2003), p. 73.

Wardle (2013) points out the numerous types of marriages: e.g., wife loaning, mistress keeping, marriage for political or economic purposes, child marriages, sibling marriage, uncle marriage, endogamy, polygamy, co-marriage, forced marriage, bride selling, etc. (Coontz 2005, pp. 15–23 in Wardle 2013, p. 1395).

E.g., UK. See Crawford and Carrtuhers (2011), p. 41.

See Charter art 9 and ECHR arts 8 and 12.

About cohabitation in Europe, see, e.g., Sverdrup (2014); Barlow (2014). Walleng (2014).

Eleven European countries legally recognise same-sex marriage; additional 13 countries have a form of civil union or unregistered cohabitation. Several countries are currently considering same-sex union recognition. Estonia adopted Cohabitation Law Act, which allows registered partnership also to same-sex partners, in October 2014.

The nearest developments are that family life gets similar legal protection as marriage, and member states are moving towards cohabitation regulations, including same-sex cohabitation; usually after that, cohabitation will be replaced by gender-neutral marriage.

See p. 3; for example, Biryokov states that “Ukraine’s history reflects the encounters between the rich and varied civilizations that developed in Europe, the Middle East and Asia (Biryokov 2002, p. 54). Similar description covers also other EaP states. This means that different cultures meet and collide. Family law is related to the culture. However, bringing the prominence to one culture causes disputes. For example, the Soviet regime tried to fight against bride kidnapping and forced child marriages, including polygamy, but in practice these forms of marriages exist in some EaP states until today. Abdullahi A An-Na’im wrote that scholars generally agree that in theory and tradition the regions of Central Asia and Caucasus are patriarchal; many Central Asian families still expect to arrange their daughter’s marriages (Abdullahi 2002, p. 31). Author states that maybe these societies which have not yet accepted the equality of men and women (see Enachi 2014) are not ready to understand the gender-neutral family relations. However, this raises a question, how can EaP states promote the common values of the EU then?

Antokolskaia (2011), p. 112.

Ibid, p. 112.

See Schweisfurth and Alleweldt (1998).

See Elisondo Urrestarazu and Petrescu (2013), p. 24.

ECtHR has emphasised in many decisions that ECHR is a “living instrument”, which means that the provisions of this legal act must be interpreted correspondingly to the certain moment of development of the society when the decision is made.

Elisondo Urrestarazu and Petrescu (2013), p. 20.

Willekens (1998), p. 48. See also footnote 11.

Khazova (2010). Available at: http://​ejcl.​org, p. 17.

Khazova, pp. 1–2.

Family Code of Armenia 2004 (non-official translation). Available at: http://​www.​parliament.​am/​legislation.​php?​sel=​show&​ID=​2124&​lang=​eng (27.10.2014).

Family Code of Azerbaijan 1999. Available at: http://​gender-az.​org/​index_​en.​shtml?​id_​doc=​93 (27.10.2014).

But according to the Joint Staff Working Document. Implementation of the ENP in the Republic of Moldova Progress in 2013 and recommendations for action. Brussels. 27.03.2014. SWD(2014) 93 final, a new action plan implements the 2013–2015 national gender equality programme, which for the first time provides for gender equality measures in the fields of security, law and the national army, p. 8; equality council was established in Moldova in 2013, p. 9.

Family Code of the Republic of Moldova 2000. Available at: http://​cis-legislation.​com/​document.​fwx?​rgn=​3480 (27.10.2014).

Family Code of Ukraine 2002. Available at: www.​familylaw.​com.​ua/​…/​FAMILY_​CODE_​OF_​UKRAINE… (27.10.2014).

Art 21 provides that a marriage is a family union between a woman and a man; woman and man’s living as a family without being married does not constitute a ground for them to have the rights and responsibilities of a married couple.

Constitution of the Republic of Belarus. Ministry of International Affairs. Belarus net. Retrieved 12 July 2014.

Кодекс Республики Беларусь о браке и семье 9 июля 1999 г. № 278-З. Available at: http://​pravo.​levonevsky.​org/​bazaby11/​republic48/​text194.​htm (10.01.2015).

Moldova and Ukraine accept cohabitation too, but as seen Moldova calls this legal relation as “a similar relation to family”; see also art 21 of Ukrainian Family Code.

See Carcimartin (2012), p. 85.

E.g., child marriages, forced marriages, etc.

See ECHR art 8 and Charter Art 7.

Moorhead states: “The role of the ECJ as the supreme legal authority within the Union institutional framework is central to understanding these possible conceptual developments. We may distinguish two senses in which the foundational values of the Union legal order govern the operation of Union laws within the Court’s judgments. The first concerns the Court’s recognition that the Treaty objectives possess a constitutional status within a hierarchical system of Union and domestic laws. The second concerns the effects of all Union laws (primary and secondary) as a ‘directly applicable body of legal norms within member states’ legal orders that, according to the supremacy doctrine, possess constitutional status’ (Moorhead 2014, p. 9). General principles of EU primary law should be applied by EaP states too.

Davis states that in the EU, a member state can sometimes hide behind the private international law rules when non-recognising the same-sex marriages contracted abroad as marriage capacity is governed by each individual’s “personal law”—law of his or her nationality or domicile. See Davis (2014), p. 264. Author of the article does not agree with Davis in this respect as also the norms of private international law must be in conformity with EU primary law, which means that all the substantive laws of a member state, including the one(s) regulating private international law, must be in accordance with the ECHR and the Charter. That is, the justification principle covers additionally private international law rules. Even more, private international law refers in most cases to the family law acts of this certain member state, which are substantive law. This is something EaP states should consider as well—private international law must be in accordance with the principles of ECHR.