The Diversity of Legal Systems in Europe: There is No “Average” Law

The article is interesting in that it looks at the coverage of divorce costs from the standpoint of economic analysis of law, acknowledging from the outset that ideas about marriage have changed in recent decades, at least in the West, and considering the three institutions that can insure social risks – the state, the family and the market, as highlighted by Esping-Andersen. However, it does not seem to have achieved its goal. The authors write in terms of a kind of “average” legal framework combining elements borrowed at different moments from France, England and unidentified American states, mainly gleaned from economics articles published by authors from the countries in question at different times. Moreover, they only partly consider the question they raise in terms of the potential contributions of state, family and market, without gauging the full extent of the transformation of marriage, whose reality they nonetheless acknowledge.

Trying to argue in terms of a general body of divorce law embodied in combinations of functional equivalents leads the authors into error and confusion. Scottish private law is not the same as English private law; one cannot speak of the private law of the United Kingdom. There is no separate property system in the common law marital regimes of England or Germany. To the extent that one can talk about a marital property regime under English law, the existing system makes complete community of property mandatory, does not recognize separate property and allows community of property to be limited only under certain conditions, which are left to the discretion of the divorce judge. In Germany as in France, the legal system limits common property to assets acquired in common by the spouses (Zugewinngemeinschaft in German, acquêts in French). “Maintenance” (alimony), which is still at the heart of divorce law in countries that have inherited the English legal tradition, is not the functional equivalent of the prestation compensatoire (“compensatory allowance”) of French law, especially since the 2004 reform. A prenuptial agreement in those countries is not functionally equivalent to a French “marriage contract”. Divorce judges in the English law tradition can and sometimes do reject the prenuptial agreement if they think that upholding it would not enable the less well-off partner to maintain the standard of living they are entitled to, and especially if it might lead them into poverty. By contrast, only in exceptional circumstances can a French judge overturn a marriage contract; it is a rare and radical step. Thus a prenuptial agreement by no means provides the same certainty as a marriage contract.

How have the transformation of marriage over the past 50 years and factors that depend on the state, the family and the market come together in different countries?

The question of divorce costs arises because divorce has become common, and divorce is now common because the second half of the twentieth century saw a deep transformation in the moral and doctrinal foundations of the conjugal relationship. In a short space of time, people in the West have abandoned the concept, inherited from Catholicism, of the marriage bond as an indissoluble tie in which the exchange of vows at the moment of the celebration commits a person for life. In its place they have adopted a neo-Roman concept in which the conjugal relationship (marriage, consensual union or civil partnership) is based on affectio maritalis, i.e. continued mutual consent. We have shifted from the lifelong conjugal relationship to one that occupies one period in the life of each partner. At the same time, we have seen profound changes in relations between the sexes, in law and in daily life. Family law, and not only marital law, has been trying for half a century to adapt to the new ideas about the couple and relations between men and women, but, apart from the Scandinavian countries where the problem was tackled early on, we are still groping in the dark.

The promised economic analysis might have been instructive if it had really taken this change as its starting point. Instead, the article discusses the economic model of marriage...