Changing Families, Changing Family Law in Europe, Konrad Duden and Denise Wiedemann (eds.)

Changing Families, Changing Family Law in Europe, edited by Konrad Duden and Denise Wiedemann, is a comprehensive volume that features 18 chapters authored by 19 distinguished contributors. The chapters are thoughtfully organized into six thematic parts: Part I—Marriage and Partnership; Part II—Childbearing and Parenthood; Part III—Queer Identities, Queer Families; Part IV—Protection of Vulnerable Family Members; Part V—Addressing Divergences; and Part VI—Changing Families, Changing Family Law. Although the chapters are grouped thematically, each stands alone as an independent contribution, offering unique insights into the evolving challenges faced by family law in Europe.

In the preface, the editors highlight the increasing diversity in the lived realities of European families, a development that has evolved over several decades. They emphasize that European jurisdictions have responded to these changes in varying ways. Consequently, the book explores the critical question of how legal systems in Europe can effectively address the complexities of changing family dynamics when the Member States of the Union remain divided on how to approach these evolving realities.

The first contribution in Part I is authored by Tone L. Wærstad, who addresses significant concerns regarding the development of human rights protections in the context of family reunification law and the recognition of child marriages. She notes that national legislation appears to be becoming more restrictive, particularly in light of the possible application of public order provisions. To illustrate the balancing of the public order assessment, Wærstad uses a decision from the Norwegian Supreme Court, emphasizing the need to balance the interests of the family and children with the child-spouse’s best interests, as well as the broader societal aim of combating early marriages. She concludes that a more nuanced approach to the issue is necessary, advocating for greater focus on the gender-related challenges in child marriages. Additionally, she underscores the importance of providing adequate support services in cases where marriage permits are granted and calls for transnational cooperation at both national and international levels.

In the second contribution, Pablo Quinzá Redondo analyses the recognition of non-judicial divorces in Europe, particularly regarding the application of the Brussels II instruments. He distinguishes between private divorces and non-judicial divorces with intervention of a public authority, offering a comparative overview of how three European jurisdictions have approached the Brussels II bis Regulation, with varying degrees of inclusiveness. Although the EU has no competence to unify the substantive family law of the Member States, Redondo argues that the increasing number of cross-border marriages and divorces necessitates mutual recognition of personal status between the Member States. He acknowledges the existing conflict between national autonomy in substantive family law and the need to coordinate cross-border divorces but concludes that using EU regulation should not be regarded as unusual for private international law researchers as that has also been the case for other legal institutions.

Caroline Voithofer’s contribution explores the interconnections of family law with individual and relational autonomy and solidarity. She compares divorce regulations in Austria, Germany, Liechtenstein, and Switzerland, while also considering the CEFL Principles. The chapter then shifts focus to selected statutes on spousal divorce agreements. Throughout, Voithofer reflects on the emancipatory potential of these regulations, criticizing the division of responsibilities between the private and public spheres, particularly in relation to post-divorce spousal maintenance. In her conclusion, she argues that ongoing maintenance obligations not only support the entitled spouse but also align with state authority interests, potentially undermining both spouses’ individual and relational autonomy. As long as monthly payments persist, she contends, a clean dissolution of the relationship is hindered, making alternative approaches more appropriate.

The final contribution to Part I, by Elise Goossens, critiques the tendency for legal frameworks designed for non-married couples to mimic marriage. In response, she introduces two alternative models for family solidarity that move away from marriage-based schemes. The first is the ‘three-step solidarity ladder,’ where the nature of the relationship and the partners’ commitment determine the extent of financial solidarity. This model distinguishes between three levels of solidarity: compensation at the base, needs in the middle, and sharing at the top. The second model is a care-centred relationship law, which entirely separates financial solidarity from the relationship itself, instead linking it to childcare. Goossens recognizes both opportunities and challenges in these models and highlights the need for further development before they can be implemented.

Another key area of debate and legal reform is childbearing and parenthood. Three contributions have been written with the aim of focusing on the modern developments and regulations in this area.

Konstantinos A. Rokas opens Part II by focusing on surrogacy, assisted reproduction, and children born through post-mortem fertilization. While these methods reflect contemporary realities, legislators—even in countries with shared principles—have taken varied approaches to address them. A significant issue is the intended parents’ right to legal recognition, with Rokas referencing cases such as Mennesson v. France, Paradiso and Campanelli v. Italy, and Pancharevo. He highlights the inconsistencies in case law, particularly regarding the use of public policy mechanisms, and points to unequal treatment in French surrogacy cases. Rokas advocates for a stricter threshold for invoking public policy and calls for greater consistency in how national courts justify its use. He concludes that a well-functioning private international law system would have provided a quicker, more coherent solution to the issue of recognizing parentage.

Dafni Lima’s chapter emphasizes the importance of recognizing multiple parenthood, pointing to recent social developments in Europe that challenge traditional foundations of parentage. Lima also refers to research demonstrating that such recognition can help mitigate conflict and provide greater stability and protection for the child. After clarifying the distinctions between parentage, parenthood, and parental responsibility, Lima introduces three models for regulating multiple parenthood, as utilized in North America: the functional approach, the ‘best interest’ approach, and the ‘private autonomy’ approach. While the first two models recognize an existing parent-like relationship between the child and a third party, the latter acknowledges only agreements made prior to conception. In her conclusion, Lima suggests that legal frameworks could benefit from incorporating elements of more than one model.

Christiane von Bary’s contribution addresses the issue of adoption being increasingly used as a fallback mechanism for modern family structures, despite adoption laws not being designed to address the challenges these families face. Throughout the chapter, she explores when and why adoption is utilized to establish a legal parent–child relationship in modern family forms, highlighting the difficulties these families encounter compared to ‘traditional’ family structures. Adoption, as von Bary notes, has significant implications: it is often a lengthy and costly process, and prospective adoptive parents are rigorously evaluated for suitability—an assessment not required when parenthood is allocated by law at birth. Von Bary proposes the possibility of distinguishing between two types of adoption: one for children born into the family, with requirements closely aligned to those for legal parenthood at birth, and another for children whose birth parents are unable to fulfil their parental roles.

Part III of the book examines critical issues in Europe concerning queer identities and queer families, with contributions from three authors highlighting the pressing need for reform and a rethinking of legal approaches in response to social movements.

The first contribution to this section, by Sandra Duffy, opens with a discussion on gender identity and gender recognition laws, offering an analysis of commonalities in European regulation. Drawing on European Court of Human Rights jurisprudence, Duffy traces the development of legal gender recognition as a protected right under the European Convention on Human Rights, beginning with Goodwin and I. v. United Kingdom (2002). She further explores common barriers within European gender recognition laws, starting with the persistence of trans identity as a medical and psychological condition in many national laws. Duffy also addresses the age restrictions often embedded in these laws and the challenges in recognizing non-binary as an umbrella term rather than a fixed third gender. She concludes by questioning whether progress in gender recognition continues, noting that while legal recognition has generally advanced, there has been a growing backlash across media, political, and social spheres.

The second contribution addressing legal issues surrounding queer identities and queer families is authored by José María Lorenzo Villaverde. Villaverde begins by summarizing the key points of the Coman case, decided by the Court of Justice of the European Union, before examining its broader implications for EU private international law. He highlights the Coman case's significant achievements in strengthening freedom of movement and LGBTQ+ rights within the EU, while also acknowledging its limitations, particularly the fact that substantive family law remains under the jurisdiction of Member States. A central focus of the chapter is the interpretation of the term ‘spouse’ in Directive 2004/38/EC, which Coman established as gender-neutral. Villaverde explores whether this autonomous interpretation could extend to other EU private international law regulations discussed in the chapter, ultimately concluding that such an extension is possible.

The final contribution to Part III, authored by Alice Margaria, examines the concept of ‘seahorse fatherhood'—trans men who give birth—through the stories of Thomas Beatie and Freddy McConnell. Margaria critically analyses three approaches to determining the parental status of trans birthing men for birth registration purposes. The first approach, ‘gender mis-alignment,’ assigns the status of ‘mother’ based on the principle mater semper certa est, emphasizing legal certainty and the child’s right to a mother. The second, ‘gender alignment,’ assigns parental status according to the individual’s legal gender, though Margaria critiques its implications for recognizing fatherhood, referencing Swedish legislation. Finally, she proposes a third approach: degendering legal parenthood by replacing ‘mother’ and ‘father’ with ‘parent.’ While optimistic about its potential, she cautions that this shift could have unintended consequences for caregiving roles and gender equality.

Part IV of the book shifts focus to a more specific yet equally important and underexplored topic: the protection of vulnerable family members. This section features contributions from three authors, each offering a distinct perspective on the challenges faced by vulnerable individuals within family structures and the legal mechanisms designed to safeguard their rights.

Sanna Mustasaari opens this section with an analysis of cross-border child protection cases between Finland and Central-Eastern European states, including Russia. Mustasaari examines situations where children are placed in public care, highlighting jurisdictional challenges and the best interests of children with foreign nationality or strong ties to another state. Through six cases, Mustasaari identifies three key themes: the politicization of international child cases, issues surrounding the return of children wrongfully removed or retained from their state of habitual residence, and the complexities of cross-border child placements. Further, the challenges of cooperation between Finland—and Western European states more broadly—and Central-Eastern European states, including Russia, are explored. In the conclusion, Mustasaari attributes many of these difficulties to legal, cultural, and historical differences between Eastern and Western Europe.

The second contribution, by Onyója Momoh, examines the challenges posed by the 1980 Hague Convention on the Civil Aspects of International Child Abduction in cases involving domestic and family violence. While the Convention serves as the primary legal framework for addressing parental child abduction in private international law, it has not curbed the rising number of such cases. Momoh focuses particularly on Article 13(1)(b), which permits the refusal of a child's return if it would expose them to a grave risk of harm. In cases involving domestic and family violence, this exception is frequently invoked, as witnessing abuse is itself recognized as harmful to the child. She highlights the difficulty of ensuring that the interpretation and application of Article 13(1)(b) consistently account for both direct abuse and the detrimental effects of exposure to violence. Acknowledging that a universal model is not feasible, she emphasizes the need to strike a fair balance between broader policy considerations and the best interests of the child.

The final contribution to Part IV, by Laima Vaigė, examines the EU and Council of Europe strategies on violence against women and domestic violence, questioning why explicit treaty norms are perceived as conflicting with national identities. While most EU Member States have ratified the Istanbul Convention, some have refused, often amid claims that it promotes same-sex marriage, introduces multiple gender identities, and mandates sexual education in schools. Resistance is particularly strong in certain Eastern European states, where gender roles are viewed as natural rather than socially constructed. In response to these objections, attempts have been made to mitigate controversy, but this has resulted in weaker protections for LGBTQ+ individuals. Throughout the chapter, Vaigė notes that framing violence against women and domestic violence as ‘gender-based violence’ could provide a broader perspective but concludes that it would likely provoke even greater opposition.

The final part of the book, Addressing Divergences, comprises four chapters examining the growing divide in family law among EU Member States, particularly between Eastern and Western Europe. This division poses a challenge to freedom of movement within the Union. The chapters explore how international family law in Europe can respond to these evolving disparities.

Mónika Csöndes opens this section by examining the fragmentation of private international family law. She introduces the debate on whether harmonizing substantive family laws—despite the EU's lack of regulatory competence in this area—or further unifying private international law rules is the preferable path forward. However, she acknowledges that granting the EU competence over substantive family law remains unlikely in the near future, limiting its role to the powers conferred by the TFEU. She also questions whether national courts can consistently interpret private international law rules in the absence of coherence in supranational case law. Ultimately, Csöndes argues that private international law is not meant to impose uniformity on divergent national laws. Rather than eliminating fragmentation, she contends that efforts should focus on mitigating its disadvantages.

Rebecca Legendre contributes to this section with an analysis of recognition and enforcement in international family law. She begins by highlighting the relevance of the topic in light of increasing individual and family mobility. She then introduces two key distinctions: the difference between recognition and enforcement, and the varying purposes they serve. After outlining the different systems governing recognition and enforcement, she assesses whether these differences are justified. While acknowledging that fragmentation in the recognition and enforcement of foreign decisions and documents is not always unjustified, she explores ways to address its challenges. She proposes a binding interpretation of fundamental rights for European States, arguing that the development of common instruments for implementing public policy could facilitate greater harmonization.

Marlene Brosch is the third contributor to this section with an analysis of party autonomy in international family law. She examines whether couples and families should have the right to determine the applicable law and the competent courts for their legal relationships. While the EU Regulations have partially endorsed this principle, they also impose significant limitations based on the principle of proximity, requiring a close connection between the chosen law or forum and the parties involved. After outlining the existing regulatory framework, Brosch explores party autonomy in areas beyond the scope of these regulations. She advocates for the consolidation and codification of EU international family law into a more unified and consistent framework, which could enhance flexibility in party autonomy provisions. Moreover, she stresses that strengthening party autonomy should extend beyond legal reforms, requiring practical efforts to raise public awareness of the implications of cross-border legal situations.

Anna Wysocka-Bar explores the future of substantive family law harmonization in Europe, distinguishing it from unification—the former preventing conflicts without imposing uniform solutions. Her chapter focuses on the potential harmonization of parentage recognition for same-sex couples, particularly in cases involving assisted reproduction and surrogacy. To illustrate the complexities, she examines the CJEU rulings in Pancharevo and Rzecznik Praw Obywatelskich. She emphasizes that harmonization is often driven by multiple institutions shaping substantive family law, including the CEFL, CJEU, ECtHR, ECHR, the Council of Europe, and HCCH. Wysocka-Bar expects parentage recognition to remain a key issue for these institutions years ahead, with the ECtHR and CJEU having the greatest influence, though a new set of CEFL principles would also be a welcome development.

In their concluding remarks, Konrad Duden and Denise Wiedemann weave together key themes from the preceding chapters, addressing three main topics: legal recognition of gender identities, partnership patterns, and parenthood structures. While acknowledging an East-West divide in certain areas, they stress that fragmentation is more nuanced than this divide suggests. At the same time, this division presents significant challenges to harmonizing family law across Europe. Despite the existence of several EU Regulations on private international law and international civil procedure, efforts to harmonize or unify international family law have been far less successful than in other areas of private international law. One major factor contributing to this fragmentation is the selective participation of EU member states in unification efforts, further complicating matters for cross-border families.

This volume makes an important contribution to the academic discourse on international family law, offering valuable insights into key areas such as marriage and partnership, childbearing and parenthood, queer identities and queer families, and the protection of vulnerable family members. The diverse and thought-provoking contributions provide a strong foundation for further discussions on the future harmonization of family law in Europe.