International Family Law

Question	Answer
Types of Relationships	Cohabitation (Registered, Unregistered) Registered Relationships (Weak Form, Strong Form)
Establishment of the Relationship Conditions	- Minimum Age - Prohibited Degrees of a relationship - Sex - Competency and consent - Residency Conditions - Formal Requirements
Establishment -- Pluralistic Model (Belgium, France, Netherlands, Luxembourg, Spain, Andorra)	Different sex - Marriage, Non-marital registered (Stage 2 Divorce) Same sex - Non-marital registered (Stage 2 protective, non-protective) - Due to the possibility for different-sex couples to register, new scheme needed - Two differing approaches: protective and non-protective
Establishment - Dualistic Model (UK, Germany, Finland, Czech Republic, Slovenia, Switzerland)	Different Sex - Marriage - Divorce Same Sex - Non-marital registered relationships - Dissolution - Distinction drawn on the basis of sex. - No reason to depart from the existing mechanisms for dissolving a marriage. Only small changes in some countries.
Establishment - Monistic Model ( Denmark, Iceland, Norway, Sweden)	Different and same-sex couples - Marriage - Divorce - No distinction
Rights and Duties of the Parties	- Enormous Variety - Some: Family and inheritance Law, Property Law, Rights in Relation to children. - Property law and personal obligations and Fiscal Law (Tax law, social security, pension) - If restrictions to this then weak registration if no restriction the strong registration.
Weak Registration Countries	Belgium, Andorra, France, Spain Luxembourg (Pluralistic Model) Slovenia, Czech Republic (Dualistic) None from monistic
Strong Registration Countries	The Netherlands (Pluralistic) Finland, UK, Switzerland, Germany (Dualistic) Denmark, Iceland, Norway, Sweden, Portugal (Monistic)
Domestic Partnerships	Same sex partners in marriage
International Plane Domestic Partnerships	No convention
Domestic Partnerships Recognition and consequences	Recognition may have consequences in the private sector including benefits and insurance.
Benefits Plan Domestic Partnership	In some countries in order to enroll a domestic partner for a benefit plan the employer must certify that he/she shares a long-term committed relationship with the domestic partner. Some times criteria like: - Living together for at list 6 months prior - Have an exclusive mutual commitment similar to that of marriage - Be financially responsible for each other's well-being anc debts to third parties. - Non of them must be married to another person.
ICCPR Articles that protect also domestic partnership	Articles 2 + 26 - Non-Discrimination Article 17 - Equal protection before the law - Right to privacy
Conjugal Relationship	Relationship between husband and wife
Economic Family	All relatives living together in the same household, regardless how they are related
Registration instead of marriage	- Could be used to replace marriage as a legal institution - Religious marriage could still exist but without legal consequences - Only Civil Registration would bind 2 people to a range of legal rights and responsibilities
CEDAW Case Gonzalez Carreno v. Spain Facts	- Spain failed to take necessary measures to eliminate it (Discrimination) - 7 year old girl killed by her father - Father reported too many times - Spain ruled that there was not 'judicial anomaly' to be found in the visit regime and denied the case to be of any constitutional relevance.
CEDAW Case Gonzalez Carreno v. Spain Issue	Child Abuse; Child Protection Committee rules against Spain for acting negligently. Compensation to the mother and training to the judges in order to prevent this from happening again.
OPUZ v. Turkey ECHR Domestic Violence Facts	Daughter and Mother having abusive husbands. Complaint to the Court but withdraw many times. In the end the husband shot the woman (mother).
OPUZ v. Turkey ECHR	- Discrimination - The Court shall had taken all necessary measures to provide effective protection of women against gender-based violence. Measures including penal sanctions, civil remedies and compensatory provisions to protect women against any kind of violence (Committee on the Elimination of Discrimination Against Women)
Maria Da Penha Maria Fernandez v. Brazil IACtHR - Domestic Violence	Petition maintains that the State condoned this situation, since for more than 15 years has failed to take the effective measures required to prosecute and punish the aggressor, despite repeated complaints. Asks for compensation and adoption of measures to eliminate tolerance by the State. - Due diligence principle
Fault Base Divorce	Fault-based divorce (divorce-sanction): the state is a guardian of universal morality, and has to punish the spouse who has committed a matrimonial offence. Physical or mental cruelty amounts to domestic violence.
No-fault based divorce	2. Divorce upon irretrievable breakdown of marriage (divorce-remedy): the state has to protect the stability of marriage for the sake of society; and to protect the spouses from their own ill-considered decisions 3. Divorce by mutual consent (divorce as an autonomous decision by the spouses): nobody is in a better position to decide on the dissolution of the marriage than the spouses themselves 4. Divorce on demand (divorce as a right): a marriage should and cannot be kept intact if one of the spouses wishes to terminate it
Fault-based grounds for divorce	- Physical or mental cruelty, acts of violence against the other spouse,etc…(domestic violence) - Adultery - Sentence of confinement in a penal institution - Gross and confirmed habit of intoxication(caused by excessive use of alcohol or drugs) - Refusal to provide support or maintenance
Divorce Law in the America	Fault = Responsibility - Fault based grounds are taken into consideration only if a specific issue of relevance. ex. abusive father - effects on the child - Other grounds not necessary in order to take divorce - Do not create compensatory rights to the party who made the allegations.
Domestic Violence - Legal Framework	Civil Remedies on Domestic Violence and Criminal Law Provisions
Domestic Violence - Definition	any violent act that is perpetrated between two people that have, or had, an intimate relationship and that result, or has the probability to result, in physical, psychological or sexual suffering.
Family Law and Divorce Legislation must provide for:	- The complainant/survivor’s right to stay in the home after the divorce. - For social insurance and pension rights for complainant/survivors. - For expedited distribution of property in divorce cases involving domestic violence. - Careful screening of all custody and visitation cases to determine if there is a history of domestic violence. - Existing laws on child custody and other family law provisions focus on safety of the complainant/survivor and the best interests of the child in domestic violence cases. All provisions should be amended to reflect this focus.
Civil Lawsuits for damages Domestic Violence	- Legislation should allow complainant/survivors to bring civil lawsuits against family member perpetrators irrespective of criminal charges. - Legislation should allow complainant/survivors to bring civil lawsuits against individuals or state entities that have not prevented, investigated or punished acts of domestic violence(due diligence).
Marital tort claim	many times an incidence of domestic violence will precipitate the filing of a complaint for divorce. If this is the case, the divorce petition could include claims for: physical, emotional, economic or other civil losses one of the spouses suffered as a result of the domestic violence.
Why domestic violence is an intentional and NOT an accidental tort issue?	Because it consist of torts such as : assault, battery, false imprisonment, intentional infliction of emotional distress, intentional interference with child custody or visitation, defamation, tortuous transmission of sexual diseases, battered women’s syndrome
What kind of damages can be awarded? Domestic Violence	Compensatory and punitive damage
Protocol 19 to CEDAW	Refers to “family violence” as one of the most insidious forms of violence(paragraph 23). The focus is however on violence within family relationships and on women who are in violent relationships, thus limiting the context under which such violence may occur.
due diligence principle Domestic Violence	state responsibility for gender-based violence perpetrated by public authorities but also by private actors.
Legislation on Domestic Violence Istanbul Convention and Convention Balem do Para	- larger scope than family violence, covering persons who are no longer in a relationship - covers intimate-partner violence as well as inter-generational violence, irrespective of biological ties. - encompasses victims and perpetrators of both sexes (Istanbul)
Istanbul Convention	Remedies: - introducing criminal offences for the different forms of violence against women (Articles 33-41, also see “specific forms of violence covered); and ensure that such acts are met with effective, proportionate and dissuasive sanctions (Article 45) - introducing effective emergency barring orders (Article 52) and (Article 53) restraining or protection orders - ensuring that victims are provided with adequate civil remedies (Article 29) and that they can claim compensation (Article 30)
States parties’ obligations/responsabilities under Human Rights Law	Positive/ -Negative Obligations concerning both private(non-state actors) and government(state actors). Respect - Thus refrain from taking any measures that could violate this rights Protect - Investigate and punish aggressors and provide effective remedies.
States breach these obligations/responsabilities	-Action: as a result of an direct act by the State, its agents or non state actor, -Acquiescence: as a result of the tacit consent of the State or its agents, or -Omission: as a result of the State or its agents failing to take action(investigate and sanction).
ECtHR: Eremia and Other v Moldovia Court	Authorities failed to protect Ms Eremia from the husband’s repeated violence, breaching Art.3 of the ECHR prohibiting inhuman treatment and that the psychological well-being of the two daughters was affected by seeing the father’s violence against the mother Thereby breaching Art. 8 of the ECHR on private and family life. The Court found also a breach of Art. 14 on discrimination (in conjunction with Art. 3) reiterating that a “State’s failure to provide protection against domestic violence breaches their right to equal protection of the law” regardless of whether this failure was intentional.
ECtHR case Opuz v. Turkey	ECtHR held that “the State’s failure to protect women against domestic violence breaches their right to equal protection of the law” Court acknowledges that men may also be the victims of domestic violence and, that children, too, whether directly or indirectly In domestic violence cases perpetrators’ rights cannot supersede victims’ human rights to life and to physical and mental integrity”.
Types of Domestic Violence	Physical, Sexual, Psychological, Emotional, Economic
Civil Damages, Tort damages examples	Medical Expenses, compensation for property damage, damages for pain and suffering or mental distress.
19th Century Divorce Laws	Most restrictive: no divorce at all Average: Restrictive fault based divorce Progressive: Divorce upon mutual consent or irretrievable breakdown, combined with some restrictions.
Present day Divorce Laws	Most conservative: Restrictive fault base (adversarial) or no fault divorce with long waiting periods and discretion of the court to refuse divorce Average: Divorce by consent or by unilateral application combined with some restrictions Progressive: Unilateral divorce or Divorce on Demand
Case Gonzalez v. US	- Petition against police who failed to respond to her repeated and urgent calls over several hours informing that her husband took their 3 minor daughters in violation of a restraining order, resulting in their death. - Supreme Court said she was not entitled to restraining orders enforced by the police.

Next up

International Family Law

Description

Resource summary

Similar

	Created by Tatiana Nikolaid over 9 years ago