International Family Law (UK) Report on Vienna World Conference 2008

First published at [2008] International Family Law 205

13th World Conference of the International Society of Family Law

The magnificent Ministry of Justice and Palace of Justice Buildings in Vienna provided an impressive backdrop to the venue for the International Society of Family Law (ISFL) 13th World Conference held from 16 - 20 September 2008. The event which had as its general theme “Family Finances” was meticulously planned and hosted by Professor Bea Verschraegen and her excellent support team from the University of Vienna. Lawyers from all over the world presented papers stimulating great debate, and the sharing of information on a wide range of issues relating to family finance. With sessions throughout the day from 9am to 6pm, in two venues, it was not possible to hear all the topics, and careful planning was needed to ensure that sessions of vital interest were not missed.

It was particularly interesting to hear how family law in the many countries of Central and Eastern Europe is still adapting to democratic government and market economies. Indeed, some states appear to have gone back to traditional pre-Soviet notions of family and marriage to enable them then to move forward at their own pace. It was particularly interesting to hear how Serbia is establishing an “alimentation fund” in order to enforce child maintenance cases where the debtor does not regularly pay the amount due - the Child Maintenance Enforcement Commission by another name! Croatia has also gone down the enforcement by the state route with new legislation which came into force on 1 January 2008 to assist the collection of maintenance from the non-resident parent. This relieved the resident parent of instituting and participating in legal proceedings, both civil and criminal, against the non-resident parent thereby reducing the risk of hostility between the parents. The emphasis in their Family Act (2005) was to promote agreement between parties through mediation as a way of resolving marital conflict (a familiar concept).

There were many outstanding contributions. Professor Monique Haughton Worrell (University of Florida) presented an excellent critique of the child support system in USA, more specifically in the State of Florida, and emphasised how the legal rights of a respondent to a child support action differed from those of a criminal defendant even though both mihjt face incarceration. She posed the question: why don’t we force fathers to have contact when we force them to pay maintenance? Many jurisdictions are dealing with the common theme of child maintenance enforcement and from Israel came the consideration of the use of property division, as expounded by Dr Ayelet Blecher-Prigat (Shaarei Mishpat Law College), to recognise children’s economic interests in family property in divorce proceedings, rather than just the question of periodical payments. Taking the children’s financial interests into account at that stage also reflects an understanding that the children’s economic circumstances cannot be truly separated from those of their custodial mother.

The rush to the family courts in Europe and common law jurisdictions is to be contrasted to family disputes in Japan where there is a marked reluctance to employ lawyers or engage in the court process. Under Japanese law, most family cases (including inheritance disputes) can be settled without judicial involvement. In general, the majority of families choose to resolve their own disputes in private settings instead of seeking resolution through the courts. 90% of divorces are dealt with in this way. But even when that breaks down, individuals continue to avoid seeking more satisfactory remedies using traditional means of litigation. Research shows that there are a number of reasons for this, which include costs, privacy i.e. “reluctant to wash ones dirty laundry in public” and lack of confidence in the court system. A reassuring paper dealt with the impact of recent ancillary relief jurisprudence in the “everyday” ancillary relief case. In a sparkling presentation by Emma Hitchings (University of Bristol) it was explained how family practitioners in three different geographical areas were responding to the recent House of Lords decisions in White v White and Miller/McFarlane, in the advice they gave to clients in the ordinary “run of the mill case”. The findings showed a consistency of advice with a needs based approach predominating. Everyday considerations were very important with some inconsistencies shown from court to court and “know thy judge and thy court” were important factors in what advice was given. One of the impacts of the “big money cases” was an increase in Mesher orders since White. Compensation arguments were rarely utilised and were thought not to be useful in the everyday type of case. For an article by Emma Hitchings, ‘Everyday Cases in the Post-White Era’ see September [2008] Fam Law 873.

Other interesting topics covered in various sessions were pre-nuptial agreements and post marriage contracts and what property held on marriage is not part of the assets available for distribution upon divorce. Countries such as Poland ring fence the property owned by each spouse on marriage and only accruals during the marriage, are available for splitting up. But this raises the question - what is an accrual? With current thinking being that, an increase in the value of property, during the marriage owned prior to the marriage is not an accrual. Also the concepts for distribution vary from one country to another e.g. Italy has abandoned their previous rewarding and compensatory principles used in deciding maintenance payments. There were also some papers which although dealing with, “Family Finances” did so in a novel way. One of these was the family finances and parental relocation disputes by Patrick Parkinson (University of Sydney). That dealt with research in Australia on parents and children who had relocated within Australia and overseas. He argued that more attention needed to be paid to the financial aspects of relocation cases. Three main issues emerged; the costs of litigation as there was a very high rate of litigation through to trial in comparison to all other family law disputes; the costs of travel on a regular basis for contact needs to be factored into any relocation decision; compensation to be paid, when relocation is not allowed, to assist in travelling to the state or country of origin to visit family. Another unusual paper was called, “Financial compensation for the victims of child abuse and child mistreatment within the family in the Netherlands and the UK; Wishful thinking or a hardcore night?” That raised the issue of whether abused children should sue their parents or a state fund should be established to compensate such children. My view was - wishful thinking!

Many papers covered the definition of the family, recognition of co-habiting couples and same sex civil partnerships or same sex marriage in some jurisdictions. But from South Africa came a warning in, “Rainbowism in South African family law?’ by Ann Louw (University of Pretoria). South African family law now caters and affords some protection for almost every conceivable type of life-partnership including conventional monogamous civil marriages of the same as well as the opposite sex and full recognition to polygamous customary marriages and Muslim marriages and informal domestic partnerships are being considered for recognition in the foreseeable future. However, there are problems as to how these fundamentally divergent matrimonial forms can be sustained and integrated in practice. One of the most interesting and entertained presentations was, “Only Love: a law and literature approach to the history of family wealth through the Italian novels of the XIX century” by Maria Panforti (University of Modena). Basically, this traced the development from when novels gave descriptions of families where wealth had a prominent role, and marriage was entered into to obtain wealth or to preserve it or for social status motives, to those novels which promoted love marriages, whatever, the other consequences.

It is not possible to do justice to all the papers presented in Vienna in a review of this length, but I hope that I have given a few edited highlights to truly reflect the diverse nature of the conference. In her end of conference address Bea Verschraegen reminded us of two important things, firstly, that many families in the world have no property or material assets to argue about on family breakdown, and secondly, that given the high level of family dysfunction we should set a good example by the way we live our family life.

ANDREW POTE, Barrister, 13 King’s Bench Walk, London