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n Tydskrif vir die Suid-Afrikaanse Reg - Default matrimonial property regimes and the principles of European family law - a European - South African comparison (part 1)
For almost fifteen years the European Union has been active in the field of family law and has endeavoured to facilitate the lives of citizens. The European Union's competence regarding the unification of family law is, however, restricted to private international law. A broad interpretation of article 81 of the Treaty on the Functioning of the European Union leads at most to a unification of substantive law in cross-border cases, with due recognition of the principles of subsidiarity and proportionality. The European Union has no competence at all to unify the substantive family law of the member states. The unification of private international law will only partly facilitate the international life of European citizens, however. When the conflict rule is based on the place of habitual residence, for example, the solution depends upon the substantive law of the place of residence. A change of residence leads to the application of another law. This could result in the loss of a status or of rights attached to this status. At the end of the day, opportunities for private international law to facilitate the life of European citizens are rather limited as it is a weak factor of integration. The citizen will benefit from the unification of private international law only if the substantive law designated by the conflict rule does not deviate too much from the law which was applicable at an earlier stage. Unification, or at least harmonisation, of substantive law has to form part of European private international law. Unification or harmonisation of family law will allow European citizens to derive greater benefit from the freedoms of the treaties.
Other fields of private law such as contracts and torts are also developing towards a ius commune notwithstanding important differences. This development requires stimulation, however. Institutional unification of family law will only be successful if the legal systems have first grown closer through spontaneous harmonisation. This stimulation is first and foremost a task for academia. Academia has accepted this challenge and has come up with many initiatives. The creation of the Commission on European Family Law (CEFL) was an initiative on a larger scale. Its establishment was based on the idea that in view of the increased mobility of European citizens, family law must not fail in the search for a ius commune and that the available resources of private international law combined with the legislative and judicial activities of the Council of Europe and of the European Union are not sufficient to ensure further harmonisation. The members of CEFL are of the view that a certain level of harmonisation of family law is needed in order to realise a true free movement of persons and that this harmonisation will reinforce European identity as well as provide an efficient uniform area of law.
In 2004, CEFL published its Principles on European Family Law (PEFL) regarding divorce and maintenance, in 2007, regarding parental responsibility and, in 2013, regarding property relations between spouses.
This contribution offers a typology of the European default matrimonial property regimes and discusses the principles governing property relations between spouses from a European-South African perspective. Part 1 begins with a broad background discussion of the various European default regimes. Secondly, the CEFL principles governing the two main European default systems, namely participation in acquisitions and community of acquisitions, are examined in more detail. In part 2 the South African default matrimonial property system of universal community of property and the accrual system as a sort of a second default matrimonial property system are scrutinised with emphasis on problem areas where our systems are in need of reform. This is followed by a comparison between the European systems and the South African systems with the aim of identifying possible solutions for the identified problem areas and making other proposals for the improvement of our systems. As the comparative method allows us to learn from foreign experience, to evaluate legislation, case law, jurisprudence and practice concerning a specific regulation and to foresee its sociological consequences, it can be very innovative and can stimulate the development of, and enrich the South African legal system.
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