Legal certainty and flexibility in European private international law dealing with family matters

Abstract

The present research addresses the apparent contradiction between legal certainty and flexibility in European private international law dealing with family matters (“EU PIL dealing with family matters”). In light of the opposition that is traditionally made between the concepts of legal certainty and flexibility, it appears contradictory that flexibility is a core characteristic of EU PIL dealing with family matters when the main policy objective pursued is legal certainty. The present research shows that this is not contradictory and can even be justified. The opposition between the concepts of legal certainty and flexibility depends on the understanding that is taken of these concepts. A further examination of these concepts shows that the essence of the objective of legal certainty is to ensure that the cross-border families can rely on EU PIL rules dealing with family matters to foresee the consequences of their actions and decide how to act accordingly. Flexibility, on the other hand, is a neutral tool which is used in the pursuit of a multitude of objectives in EU PIL dealing with family matters. To be consistent with the objective of legal certainty, flexible rules therefore need to enable the parties to foresee the legal consequences of their actions. They need to be accessible, intelligible and uniformly interpreted and applied. The analysis in this research shows that almost all flexible rules in EU PIL dealing with family matters are consistent with the objective of legal certainty. This research also shows that certain flexible rules, moreover, can be particularly effective tools to provide the parties with a higher degree of legal certainty than in the absence of harmonisation. Such conclusions are not only important to overcome the traditional opposition between the concepts of legal certainty and flexibility and make sense of the current EU PIL framework dealing with family matters but they are also very important to guide the future harmonisation of this area.

Date of Award	2023
Original language	English
Awarding Institution	University of Dundee
Supervisor	Aude Fiorini (Supervisor) & Peter McEleavy (Supervisor)