corporate law, family law and civil procedure Flashcards
conceptual family definitions
- A family is a married, civil partnered or cohabitating couple
with or without children, or a lone parent, with at least one
child, who live at the same address. - A family is a group of people who are related to each
other, especially parents and their children.
* blood relatives
* group of relatives with the same name
living within curtilage meaning
a collective body of persons living together in one house
family law definition
Legal regulation of adult relationships and parent-child
relationships, together with the financial aspects of such
relationships.
Issues addressed by family law
Marriage & divorce
Unmarried cohabitation
Names: surnames and first names
Parentage
Parental authority/responsibility
Child support/ Spousal maintenance
Matrimonial property law
Inheritance law
comparative family law
- Focuses on developments with
its great variety of family law
systems - Comprises a general, instructive
and pointed comparison of the
American and European family
law systems, and eventually take
into account – as far as this has
been possible – all family law
systems in the world.
international family law
- Entails the rules for cross- border
family relations on the one hand,
and - The body of international and
(European) instruments and
decisions of supranational courts
which regulate family relationships
Legislative framework – sources
National level – every country
* Legislation: constitution, civil code and statutes
* Case law, doctrine
International level
* Cross border family law/private international law
* Regional: EU, e.g. Regulation 1111/2019 -parental responsibility and divorce rules of jurisdiction, Charter of
EU
* Regional: Inter-American HR Court
Global rights
* United Nations - United Nations Convention on the Rights of the Child (UNCRC) /human rights treaty which
sets out the civil, political, economic, social, health and cultural rights of children/
* Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry
Adoption (Hague Adoption Convention)
Human rights
* Convention for the Protection of Human Rights and Fundamental Freedoms
* Case law - the practical application of Article 8 thereof developed by the European Court of Human Right
Legislative actions of the EU in the field
of PIL and family law
- the question at which court a divorce application should be filed and which country’s law is applicable to the divorce
- the issue of child custody across borders
- the enforcement of maintenance obligations abroad
- succession issues in the event of death
Free movement of families
- All EU citizens and their family members have the
right to move and reside freely within the EU -
fundamental right established by Article 21 of the
TFEU and Article 45 of the EU Charter of
Fundamental Rights - Family members of EU citizens, either EU citizens or
nationals of a non-EU country, have the right to
accompany or join EU citizens in another EU Member
State. They may be asked to comply with certain
conditions or formalities - This right is enjoyed by all Union citizens irrespective
of their sexual orientation
the role of the public policy
A doctrine, which addresses the principles, typical for certain
country or region, that underpin the operation of the legal
system
* Affects the whole population
* It concerns values, that change and evolve with the time
* The law in general is most effective when it corresponds the
general social norms
European convention on human rights
Convention for the Protection of Human Rights and Fundamental
Freedoms
* Opened for signature in Rome on 4 November 1950 and came into
force in 1953
* The first instrument to give effect to certain of the rights stated in
the Universal Declaration of Human Rights and make them binding
Private life
The right to private life embraces
personal autonomy:
- the right to make choices regarding
one’s own life without interference
by the state
- to develop one’s own personality
and to establish relationships with
others
- to communicate
- Aspects: the physical and
psychological integrity of a person,
sex life and gender, personal data,
Family life
Family life extends to the
legally acknowledged ties
between persons related by
blood or marriage
- husband and wife
- parent and child
- ties between siblings,
grandparents and
grandchildren or uncle/aunt
and nephews/niece
Family life – ECtHR key findings
- The essential ingredient of family life is the right to live together
- The notion of family life is an autonomous concept, a question of fact depending upon the real existence in the practice of close personal ties
- The Court will therefore look at de facto family ties, such as applicants living together, in the absence of
any legal recognition of family life - no de facto family life where the relationship between the
mother and the applicant had ended
Private life – ECtHR key findings
- “Broad concept incapable of exhaustive definition”
- May “embrace multiple aspects of the person’s physical and social identity”
- General acknowledgment of the importance of privacy and the values to which it
relates
correspondence definition
by all means communication with other people
- The right to have uninterrupted and uncensored communication with
others (phone-tapping; email surveillance; and the reading of letters)
- Evolves in time - telexes, pager messages, and
private radio broadcasting, to
electronic messages (emails), Internet use, and data stored on computer servers, including hard drives and floppy disks
home definition
whether a habitation constitutes a “home” under the protection of Article 8 § 1 depends on the factual circumstances, namely the existence of sufficient
and continuous links with a specific place.
not limited to property of which the applicant is the owner or tenant
* not limited to those which are lawfully established
* not limited to traditional residences. It therefore includes, among other things, caravans and
other unfixed abodes
* extends to an individual’s business premises - university professor’s office (Steeg v. Germany)
- Place where private life and family life develops
- The right to enjoy your existing home peacefully - public authorities should not
stop you entering or living in your home without very good reason, and they
should not enter without your permission.
margin of appreciation definition
the space for manoeuvre that the ECtHR is willing to
grant national authorities, in fulfilling their obligations under the European Convention on Human
Rights
purpose of the margin of appreciation
the margin of appreciation gives the flexibility needed to avoid damaging confrontations
between the Court and the Member States and enables the Court to balance the sovereignty of
Member States with their obligations under the Convention
legal basis of the margin of appreciation
may be found in jurisprudence, not only that of the French Conseil d’état, which has
used the term “marge d’appreciation“, but also that of the administrative law system within every
civil jurisdiction
interpretation of article 8
- Has there been an
interference? - Is it in accordance
with the law? - Is it necessary and
proportionate? - Is there a
legitimate aim?
Burden of proof definition
the obligation to present evidence to prove the claims
Interpretation of Article 8
Burden of proof in ECtHR cases
The applicant has to prove that:
-the issue is within the scope of the
Article 8
-there is interference
the state has to prove that:
- the interference with the
Article 8 right is justified
in the terms provided by
Article 8(2)
Article 8 violation test
- In order to invoke Article 8, an applicant must show that his or her complaint falls within at least one of the four
interests identified in the Article, namely: private life, family life, home and correspondence. Some matters, of
course, span more than one interest. - First, the Court determines whether the applicant’s claim falls within the scope of Article 8.
- Next, the Court examines whether there has been an interference with that right or whether the State’s positive
obligations to protect the right have been engaged. Conditions upon which a State may interfere with the enjoyment of a
protected right are set out in paragraph 2 of Article 8, namely in the interests of national security, public safety or the economic
wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others. - Limitations are allowed if they are “in accordance with the law” or “prescribed by law” and are “necessary in
a democratic society” for the protection of one of the objectives set out above. - In the assessment of the test of necessity in a democratic society, the Court often needs to balance the applicant’s
interests protected by Article 8 and a third party’s interests protected by other provisions of the Convention and its
Protocols
