European Chapter Chat - My Dear Law Change; Who Knew What we Knew!
Posted: 17 Jul 2023 by William Healing and Annie Dunster
European Chapter Chat – My Dear Law Change; Who Knew What we Knew!
On Tuesday 11 July the European Chapter held another of its regular online Chats. Over 80% of those who registered appeared on screen representing 17 jurisdictions; it was good to see so many fellows joining proving, yet again, how worthwhile such events are. Moderated by William Healing, our Chat continued on our popular theme of My Dear Law Change and we were delighted to welcome 4 new Fellows who took to the virtual stage to give us a short overview of developments in their different jurisdictions. The talks each remind us of the cutting-edge issues where fellows represent clients before higher courts, or where fellows keep abreast of new law to serve our diverse range of clients.
Jeremy Ford from Cambridge, England gave an overview of one of his recent cases which included revoking an adoption order and quashing a birth certificate. The case involved a same sex couple who had a son via IVF using a sperm donor. When it came to registering the birth, the registrar at Cambridge County Council advised that the birth mother could be listed on the birth certificate but the other parent could not be named. Poor legal advice followed in which the couple was advised to seek a step-parent adoption order (SPAO) for their son. The case went through the courts and the SPAO was granted, incorrectly as it turned out. Seven years later, the couple had a daughter via the same means. On registering the birth, a different registrar advised that they could both be listed on the birth certificate under the Human Fertilisation and Embryology Act 2008. This meant that the birth certificate of their son was incorrect as was the SPAO that the couple had previously been advised to get. The High Court was asked to revoke the SPAO and a Declaration of Parentage was sought in order that a new birth registration could take place. This, in turn, meant that the original birth certificate also needed to be quashed (a judicial review action!). This would ordinarily be done in the administrative division of the High Court rather than the family court but the cases were, exceptionally, combined before the same family judge. This was only the 2nd case of its kind in England and Wales but it has proved an important case for other same sex couples who have found themselves in similar situations.
Inmaculada Ruz from Barcelona, Spain was the next speaker who gave an overview of the new transgender law passed on 1 March 2023 which allowed young people over 16 years of age to self-identify their own gender. Inmaculada noted that the new law had attracted much attention and, having been passed by the left-wing coalition, it had been subject to much criticism and scrutiny. However, the new law stands out for 3 notable reasons: i) a child questioning their sexuality is no longer seen as an illness and there is no medical professional involvement; ii) minors can now change their name and gender on the civil register and iii) there is no requirement for trans-children to have a mental health assessment before having any gender modification procedure. No intervention is legally permitted under the age of 12 unless it is for the protection of the child’s mental health. Between the ages of 12 – 16 a child can give informed consent. If there is a disagreement between the child and their parents, the child is granted a legal representative. For those over 16 years of age, no parental agreement is required and there is no requirement for any mental health assessment. The law also provides for the re-registration of gender. Such legislation has been viewed as a positive development for the LGBTi community. Incidentally, the voting age in Spain is also 16.
Rachael Kelsey from Scotland noted that under Scots law the age of capacity (and voting age) is 16 years of age. Earlier in 2023, legislation has also been passed that recognised gender self-identification from the age of 16 and you did not need to live in your current gender for two years. However, this had been rejected by the UK government and no royal assent granted, despite the law having been passed with a significant majority in Scotland.
The third main speaker was the IAFL’s first fellow from Albania, Dr Brikena Kasmi who gave a brief overview of the property rights in Albania which up until a landmark case before the ECHR in 2016 (Rista and others v. Albania) had always favoured the male relatives. Traditionally, Albanian women have been discriminated against despite legislation providing equity. Brikena gave an overview of this domestic case whereby the Saranda (Albania) Commission had recognised the applicant’s man’s inherited property rights over his deceased parents’ plot of land. No due consideration was given to the inherited property rights of the his two sisters. A national court had earlier ruled that the brother alone did have rights to ownership. The ECHR had to intervene to force compensation to be actually paid. It was payable equally to the direct descendants of the original owners. The two sisters, represented by Brikena, in an action against the Ministry of Finance sought a suspension of the transfer of compensation to the brother under Albanian domestic law until there was recognition of the rights of ownership for the sisters. As a result of her domestic court action, and following the ECHR judgment, Brikena was successful in ensuring her clients shared the state compensation with their brother.
Brikena further noted that in Albania the title deeds of a property usually mention only the husband and not the wives or, in the case of inheritance, the sons and not the daughters are mentioned. Thus, when seeking any transfer of deeds, the notary will only act in accordance with whose name is on the deeds.
Brikena spoke also about the cultural tradition of a family on the marriage of a daughter providing a dowry (Dota), usually in the form of a property, to the husband. The property would be listed solely in the husband’s name but was permitted to be administered by the wife. Also, she explained that usually the customary tradition in property rights is in favour of men/ brothers/ sons. It is only recently that this practice is now being challenged in the courts. In cases of divorce the family law provides for the court to require one of the ex-spouses to compensate the other for the inequality in lifestyle created by the property division as part of the dissolution of the marriage, over and above the obligation for alimony. The court specifies if the contribution is to be a lump sum distribution payable immediately or whether it will be a periodic payment and shall specify the method of payment. Despite this, to date, the court has not yet delivered any judgments on such cases. Similarly for prenuptial agreements these have started to be prepared since 2015 but new case law is awaited on them.
Brikena noted that the property regimes in Albania before the 1990s meant that the male spouse was the principal beneficiary. However, some progress was being made with the courts recognising both parties as equal beneficiaries although it did appear to be dependent on the length of the marriage. The issues are being made more complex by the restitution into male hands, of property confiscated by the Communist regime before the 1990s. In Albanian law a system of legalisation of informal property ownership constructions results in property ownership being legalised in favour of the male of the house.
Magda Fernandes from Lisbon, Portugal was the final speaker. Magda gave a whistlestop tour on 3 hot topics currently on the minds of family lawyers in Portugal: the presumption of alternative residence (known in some jurisdictions as 50-50 shared care), pre-nuptial agreements and surrogacy. Magda found a common theme between the 3 topics: the modernisation of family law. Portuguese law has traditionally protected women, and Magda thought that the recent developments in these 3 areas were moving closer to provide equity among both parties. Custody laws changed in 2020; today usually shared custody, meaning equal 50:50 care, is granted and this is difficult to appeal unless there are instances of, for example, domestic abuse or violence. Shared custody aims to reduce the conflict between parents. In some cases, there are still cases whereby it is viewed as a continuing disruption of children’s routines, particularly in instances where parents are not co-operating. However, the presumption is that alternative residency is in the best interest of the child.
In Portuguese law the spouse was always considered a legitimate heir and could not be cast aside by a prenuptial agreement or otherwise. Thus, the legitimate heirs were presumed to be the spouse, children and, if applicable, the parents of the deceased. If you wanted to make a will, you could only dispose of 1/3 or 2/3 of your assets (depending on whether your parents survived you) but this changed in 2020 when legislation was passed that allowed a couple to renounce their position as legitimate heirs via a pre-nuptial agreement although Magda stressed that the renouncement must be reciprocal. This is a fairly radical departure from civil law presumptions of forced heirship.
Finally, surrogacy was made legal in 2021 in Portugal. It is subject to specific rules, the most important of which is that it cannot be subject to any renumeration, and you can only be a surrogate parent if the intended mother is unable to bear a child, or if there is a mental health issue. There cannot be surrogacy between two parties who have some kind of relationship e.g. employer and employee. Magda concluded even though there are a number of limiting factors, this was progressive legislation.
William Healing noted that Spain and Portugal were more progressive on questions of family law than the UK where (excluding same sex marriage which has been adopted anyway in many countries) there had been just one major change to family law in 13 years.
William Healing closed the chat by thanking the speakers and for sharing their golden nuggets of family law from across Europe and noted that the Chapter has 327 fellows now including 18 new fellows so far in 2023.
The next Chat will be held on Tuesday, 12 September at 4pm BST/5pm CET. We look forward to seeing you there!
William Healing, IAFL European Chapter Vice President
Annie Dunster, IAFL Executive Director
