Private Ordering in Family Law: A Global Perspective

Abstract

This chapter describes and analyses the perpetual pendular movement of family law between status and contract from a global perspective. It focuses on substantive and procedural family law with regard to parents and children and with regard to life partners. The conclusions of the analysis are quite ambivalent. Firstly, whereas family law is clearly moving towards contract with regard to old family formations, the contrary is true for new family formations. Surrogacy and same-sex partnerships for example crystallise as new statuses. Secondly, the movement towards contract is rarely considered to be contractualisation pur sang, with civil effect. Pacts, agreements, arbitration awards and other instruments alike with regard to domestic relations are indeed not considered to be as binding upon the parties or the courts as contracts in general. Thirdly, the movement towards status does not necessarily bear witness to family law exceptionalism vis-à-vis private law. States indeed increasingly intervene in private law relations in general. In sum, the high permeability of the demarcations between the state, the family and the market impedes a categorical approach—which may be a desirable outcome all in all.

This report was also published in Swennen, Contractualisation of Family Law – Global Perspectives, Springer, 2015, pp. 1–59.