Toward a New “Privatistic” Approach to Family Law: the Italian Model. 

 

by Antonello MIRANDA*

 

 

 

 

 

*Professor of Private Comparative Law

Faculty of Political Science, Palermo University

  Italy

 

 

 

 

 

 

 

SUMMARY: 1.- Law mutation and family transformation. 2.- Inspiring principles of the 1975 legislative reform. 3.- Social and technological changes in the last ten years and their impact on family law. Doctrinal and juridical interpretation and the limits to their implementation. 4.- The demand for a new reform of family law. The choice between state intervention and the privatisation of relationships: looking to a privatistic reading of the institution of marriage.

 

 

 

1.-  John Dewar, one of our kind hosts (whom I thank for their welcome), recently maintained that “family lawyers are fond of announcing transformations in their discipline…, observers talking of «anarchy», «chaos» and «incoherence» as the order of the day, with the new ideas and techniques proving fragmented and uncoordinated, and in any case not entirely displacing the original model” ([1]); as a consequence, we are facing “an uneasy transition from a known past to an uncertain future”, being it almost impossible to talk of a global transformation where one body of rules, thought, structures and institutions will be replaced by another.

I do not wish to increase the number of those who speak of a transformation of family law. On the contrary, being a civilian, I think the real problem in this field is the fact that the “law”, intended in a positive way as Statutory Law, has not changed at all. It has rather crystallised, acquiring a short-sighted nationalistic vision, thus accentuating day after day its disconnection from real life.

In Italy, for example, family law appears to be the field in which the fire of doctrinal debate is brightest and in which, more and more often and in a painful way, judges have been called upon to make decisions in the absence of precise, exhaustive and up-to-date rules of law. Moreover, this is a field in which the legislator’s work appears more and more lacking in influence, if not harmful, also in consideration of the inability, for obvious internal reasons of ideological contrast, of the national legislator himself to intervene (just a few days ago the discouraging but foreseeable news broke out of the ten-year-long Parliamentary debate on the Artificial Insemination Act being delayed indefinitely).

This first characteristic aspect of family law makes the subject unique within Italian’s (perhaps within the whole of civil law’s) juridical panorama, because we witness a substantial overthrow of the “positive” superiority of the legislative formant (which is typical of civil law) in favour of the doctrinal and juridical ones: in other words, in contemporary family law, what takes on particular importance are not so much the rules of law (which are too complex and out of step with modern times), as second readings, reconstructions and, most of all, the interpretation and the actual enforcement of the law by jurists and judges. In short, we find ourselves facing a field in which, today, cases end up being the main source for rules; but if, on the one hand, this is natural, functional and reassuring in Common Law Systems, on the other hand it becomes incongruous and therefore disruptive in a Civil Law System, in which, like it or not, the judge (and the jurist) are, no matter what, always subject to the Statute Law and may only “move” within its narrow confines. So much so as to even force them to distort and overthrow the ratio legis in order to reach a decision of some sort, as we shall see shortly.

The second characteristic element of family law, tightly bound to the first, is that relating to the intimate connection between legal aspects and society’s developments and needs: in other words, family law (or, better, family matters) differ from the other areas of Private Law (i.e. property law, contract law, succession law and even torts and civil liability), because it suffers more the consequences of society continuously changing and it depends more on the conditions and circumstances in which it has to operate.

If we examine the history of the concept of property for example, we will note how, in spite of social and technological evolution, in this field the terms of the problems remain the same and how the solutions adopted and the legislative choices made are firmly bound to millenary conceptions and institutions; all of this without causing (too many) traumas and without society or, better, “common people”, dissenting or refusing the traditional model. The idea of property may be different in the way it actually articulates itself from one country to another and from one time to another, but it remains an idea based on universal concepts.

We could risk a similar statement for contracts, even though in this field differences are more relevant and depend on the differences among the societies in which the contract is required to work. However, certain juridical phenomena appear to be the same regardless of the context in which they operate or of local history: if I need to buy some bread (you’ll excuse the triviality of this example), I will need to exchange something against a price and to settle an agreement; whether you call it contratto, contract or contrat or in any other way, the essence of the phenomenon does not change, no matter what the time or place may be ([2]).

Now, all of this cannot, on the other hand, be said of family law. It would, in fact, be enough to think of the different conceptions of “family” which have followed one another in human history or which today exist in different cultures and even within the same country, to understand how, in this field, legislative choices are tightly bound and functional to their different contexts. We find ourselves facing an area of Private Law in which “legal rules” remain mere “proposal of rules”, if they cannot precisely reflect the “applied rules”: the rules spontaneously created and followed by society. In this field, the divergence between the “declamation” of the rule and its ability to operate runs the risk of being extreme, given the speed and the depth of social mutations and also given the presence of formants, often hidden or cryptotypical, which greatly influence each model’s evolution. The point is that family law represents a kind of “traditional law”, therefore spontaneous and far from the idea (typical of jurists belonging to technologically advanced societies) of a “law created through some artful procedure”, be it a bill, or a sentence which sets a precedent, or an essay by a prestigious scholar; family law is, for the most part, a “spontaneous law of advanced societies” which excludes “any decisional intervention by any authority, and any requisite which would limit society’s power to choose”([3]).

Being a comparatist, I cannot but point out, with regard to this, how all experiments and researches somehow directed towards the harmonisation or unification of national laws deal with property, contracts, torts, civil liability, consumers’ protection, environment protection, maybe human rights, but no one has ever wanted or been able to face the quest of a common core for family law. Nevertheless, and this convention proves it, its problems are often common, as common are the solutions, as universal is (even if within its different meanings and institutions) the theme of the family.

2.-  Supposing, then, what changes is not family law but family itself, let’s see what the situation is in Italy. It is a good idea to immediately mention that in Italy, as well as in many other Western countries (for example England or Australia itself), more or less in the middle of the 70s, the need was felt and acted upon for a law which would profoundly reform family law. The presence of a civil code and the arrangement of legal rules concerning the family in a specific book of the code itself, as well as in a myriad of provisions scattered in its various sections dedicated to single specific institutions, made it possible for the Italian “Family Law Reform Act 1975” to be a proper “global” reform of the subject.

The reform appeared necessary because, according to the doctrine, “on the plot of the civil code the provisions of the Constitution were to insert themselves, causing profound changes” ([4]); our Constitution was, in fact, subsequent to the civil code and founded on particularly intense principles of equality, personal freedom and respect for social groups. Consequently, in order to give effectiveness to the provision of art. 29 of the Constitution, which acknowledges “the rights of the family as a natural society founded on marriage”, which, in turn, “is based on the moral and juridical equality of husband and wife”, it was necessary to update the old code model of patriarchal family dominated by the husband-father, by emphasising equality between husband and wife and among the single components of the family and, moreover, by protecting the custody and care of the children (of natural ones as well), in accordance with their “best interest”.

With the “Family Law Reform Act 1975” great part of the civil code was rewritten, taking care of respecting Constitutional principles and consequently introducing the new regime of legal communion of goods (i.e. a kind of joint ownership); abolishing the prohibition to make donations between husband and wife; establishing the new regime of patrimonial conventions, with the consequent abolition of the “dowry” and the contemporary introduction of the “patrimonial fund” (a kind of “trust for families”); and modifying successions, first of all in favour of the surviving consort and secondly in favour of the children, without discriminating between legitimate and natural ones.

Moreover, it has to be said that this new law provides for the intervention of a judge in the case of controversies on “essential affairs” ([5]) between husband and wife and in the case of problems concerning the children.

Two relevant innovations come to the support of our law reform: the introduction, in 1971, of divorce and the adoption laws (in 1967 and, then, in 1974);  the last innovations were seen with a certain degree of superficiality not only as a «remedy» for situations of deserting of minors but even as possible alternative way to satisfy wish for having children. But our legislator (and often the jurists) following only the footpath of traditional family, was not able to foreseen what will be happened thanks to the new possibilities arising out the artificial insemination that make the effective application of those Statutes absolutely marginal and residual.

From his side, the first innovation in particular, indelibly and irreversibly marked Italian society which, since then, has had to change its attitude and way of thinking, as far as the concept of “legitimate family” is concerned, since it was traditionally founded on marriage or, in other words, on a stable, indissoluble and indefinite affective union and on a mutual sharing of duties, projects and moral values between two individuals of different sex. Unfortunately – maybe because of the closeness in time of the two laws ([6]) –, of this desirable change the legislator of the 1975 reform was not able to seize almost anything. For example, there was no time to anticipate that admitting a “no fault” divorce would have implied the possibility for divorcees who married again of forming new legitimate families – known as “step-families” ([7]) – which would have joined the original legitimate ones (with all the easily imaginable consequences: births of “legitimate” children from different parents, cohabitation and relations among children – all of them legitimate – from different biological parents, etc.). Without mentioning patrimonial problems caused by legal communion and successions which, in Italy, provide for a substantial protection of the “closest relations”, especially descendants, ascendants and consorts.

In conclusion, it has to be taken into consideration that the reform operated a real and proper split between wedding – seen essentially as a (juridical) relationship between two individuals – and filiation, which is protected in itself, both in and out of the legitimate family. However, even if it established harmony between husband and wife as the foundation of matrimonial union (possibly with the other components of the nuclear family taking part in it), the reform act has expressly provided for and essentially regulated those aspects of marriage which have a patrimonial nature, such as conventions, especially those stipulated when getting separated or divorced. In these cases, except for the derogability of the rules protecting children, it is at least acknowledged that the couple may, by resorting to negotial autonomy, avoid reaching an incurable contrast, which would force the courts to intervene and not just to supervise. In this perspective we should also frame all matters relating to parents’ authority, which the reform establishes should be exercised by mutual consent of the father and mother (previously it was only exercised by the father) and which, rather than consist of a controlling and managing power over the minor during his development and education, in effect, is explicitly considered a controlling and managing power over minor’s patrimony. With regard to this, it is enough to note how art. 330 of the civil code provides for the forfeiture of parents’ authority for “abuse of power” or, in other words, of the powers of usufruct, representation and administration of the child’s goods, capitals and patrimonial interests.

There is, we could say, a sort of fear or modesty in wanting to accept within our system the idea that also “life” choices and not only patrimonial matters may be subject to express agreements (and proper juristic act) on behalf of the couple, even if, on the other hand, the law itself takes for granted that family life should be founded on the couple’s agreement (and, therefore, on their personal wills and mutual benefit) ([8]). So, as it has been noticed, if, on the one hand, it appears possible, according to art. 144’s reformed text, to extend “negotiability” to matters which “used to be characterised by authoritative power and submission” (in other words to the decisions which give a marriage its direction), on the other hand that does not necessarily imply that “only the negozio (juristic act), as a complete act, with its own lasting juridical effects, is an instrument to determine an «agreed» direction” ([9]).

3.-  Since 1975 twenty-five years have gone by, a period of time almost equal to that which went by between the issuing of the Italian civil code and the Family Law Reform Act. But social traditions, the very conception of family and of “legitimate” family, relationships within it, even the idea of filiation, are much more distant today from those of 1975’s society, than the latter were from those of 1942’s society, thus making legislation today still in force totally obsolete. Accordingly, it is not only a question of minor amendments or small improvements, but rather of a general rethinking of the role of family law in a modern and complex society such as that which prevails in present day Italy.

John Dewar has identified four ways in which, “somewhere in the late 1980s or early 1990s”, changes in Australian (but also in other common law systems) family law began to take effect: a) the displacement of marriage as the central concept linking law to families and the growth in importance of other concepts such as cohabitation or parenthood; b) a reduced reliance on discretionary decision-making in favour of more rule-like statutory provisions; c) a diversification in the sources of family law norms; and d) the fragmentation of the family law system itself ([10]).

I think it is interesting to note that these ways are also followed in Italy where Authors ([11]) speak about the crisis of the family as a unitarian institution and about the displacement of family itself  as the central concept of law, probably with the relevant exception of point b) -I understand that the neighbour’s  grass is always greener … but since common law systems are usually demanding more rule-like statutory provisions, civil law systems are demanding for a more discretionary decision-making-.

In the last 10 years, in fact, in Italy, both the statutory framework of family law, and, to a greater extent, the traditional conception of mono-nuclear and legitimate family (based on indissoluble or stable and permanent marriage), have been put under pressure from:

a)                    strong social forces which want to obtain major equality of roles and a real parity between the sexes;

b)                   recognition of the paramount importance of children’s rights and interests;

c)                   development of new technologies, particularly in the field of artificial fertilisation;

d)                   the increasing number of de facto and same-sex relationships;

e)                    the increasing number of divorces (reinforcing the need to protect the rights and interests of the weaker partner);

f)                     the increasing number of births “outside marriage” and the growing number of families incorporating children with different blood parents and/or one-parent families.

Furthermore family law, in Italy, has an increasingly international dimension, largely because of greater worldwide mobility. The courts have to deal with matters (a novelty only recently recognised in a 1995 Statute) such as marriages and divorces of mixed couples or of foreigners (with different religions, traditions and customs)  living in Italy.

Until now these problems have been only partially confronted, with some piecemeal intervention, by means of specific statutes or through judicial interpretation and application of old law rules and the Civil Code.

For example we:

a)                    have sought to simplify the procedures to grant divorce (in consequence of the changing demands to protect the legitimate family and its unity and indissolubility);

b)                   have issued new rules to safeguard the rights of separated partners (use of the matrimonial home, right to alimony and maintenance) and the interests of children (right to education, care and maintenance);

c)                   have simplified the rules on adoptions (including international ones) to try to favour adoption and simultaneously reduce resort to artificial fertilisation;

d)                    have, furthermore, enacted rules which apply the European convention for protection of human rights and fundamental freedoms.

Nevertheless these legal developments have not been sufficient, because in many cases they have called into question fundamental aspects of our legal system like, for instance, the idea of the “legitimate family” founded on marriage as the fundamental nucleus of society; or the concept of marriage as a “juridical act” (rather than a contract); or the similar notion of “legitimate filiation” -that is to say, the legitimate child is one who is generated by a mother and procreated by a father who are united (to each other, of course) in marriage- which, whilst no longer corresponding to the ancient Roman Law model, is still followed by the Civil Code today.

As I have already said, the gap between legislation and society resulted in a massive decision making on behalf of judges. The courts (and often also the doctrine) faced with the absence of explicit statutory rules, gaps in the law, have tried to answer the newest and most different of demands. This has obviously happened with no coherent strategy, sometimes even ending up distorting the ratio and the common sense of the rules dictated by the legislator.

So, if, on the one hand, the work of the courts has contributed to discipline, albeit in a limited way, phenomena such as de facto families, by extensively interpreting the Constitution (particularly its art. 2) and the code and by taking advantage of the gaps left by the legislator, on the other hand it has contributed to feed uncertainty, since the courts must anyhow formally comply with statutory rules dictated in the presence of circumstances and concepts which today have not only disappeared, but sometimes even overturned. That is, for example, the case with legitimate filiation which, as I mentioned, in Italy, is regulated by a series of legislative dispositions which, today as in ancient Rome’s time, presume the impossibility of tracing paternity (mater semper certa est, pater nunquam) and which consequently no longer have reason to exist, at least in their present formulation, in a society which, thanks to technology’s development, is absolutely able to ascertain an exact genetic descent.

The cumbering presence in this field of legislative limits (think about their consequences on succession rights) has induced more than one of our judges to decide on the practicability of artificial insemination contracts with reasonings which are at least unusual. In one case ([12]) in which a woman asked the execution of a contract for an assisted insemination stipulated with a medical centre in order to implant in her uterus some ovules fecundated by her dead husband, the court accepted the woman’s request, recognising the right “of the aspirant surviving parent not to see the process of life initiated with the contribution of their own gametes interrupted, at least not without their own explained assent”. That right would be in agreement with what is established by the Constitution (articles 2 and 32), with a woman’s right to physical integrity and with the laws on abortion, which also protect the embryo’s right to life, to integrity and to health (L. 22.5.1978 n. 194).

What I observe is only that, in this case, the judges followed a line of interpretation which substantially distorted the meaning of the above mentioned legislation and particularly the meaning of law 194 which, far from acknowledging a “right to maternity” at all costs (one should then ask oneself who the obliged subject would be), has instead permitted a “non maternity”, if the right to life of the unborn child (however already implanted in the uterus) were to be sacrificed, in order to grant the mother’s right to physical and psychological integrity. In other terms, the legislator has acknowledged a woman’s right not to be a mother and not, on the other hand, as the Court said, her right to be it anyway.

This is obviously only an example, and a rather unfortunate one at that, of how, today, as far as family matter goes, judges (and interpreters) are called upon to operate according to a proper praetorial living law. In other cases, particularly the ones concerning de facto couples, the acknowledgement of the rights of the weak partner in the more uxorio cohabitations, such as, for example, the right to succeed in the family house leasing contract also in the case of a partner’s death, the acknowledgement of the right for the live-in partner to obtain compensation for both patrimonial and moral damage and the acknowledgement of some rights deriving from homosexual unions, the courts have provided more or less adequate and coherent answers to single questions “from which a solution is not so much inferred from principle options, as pragmatically looked for by giving prominence to the specific needs and interests relating to each specific relationship examined”, obviously operating within the often narrow confines set by the law and constantly endeavouring to refer to the “legitimate and worthy of protection exercise of the private autonomy for the regulation of patrimonial aspects of cohabitation” ([13]). However, in spite of this interpretative work, many remain the positions devoid of protection or of an albeit partial acknowledgement, like, for example, when, a few weeks ago, it was refused that a living-in couple could adopt a minor, or like when any possibility of analogical application of the rules relating to legitimate families was refused to a de facto family as far as successions go.

4.- In the face of these problems, the academic debate has divided itself into two factions:

a)                    one camp has proposed a stronger State intervention through the enactment of laws, in order to reduce certain phenomena or support others (e.g. extending the application of matrimonial rules to de facto relationships); this solution does not, however, appear to work and has been unable to produce concrete results (it doesn't prevent problems arising and furthermore may provoke major litigation).

b)                   The other camp has suggested limiting the same State intervention to cases of necessity (e.g. where there is a need to safeguard children’s interests or the economic and personal interests of separated partners, etc.); allowing individuals the freedom to self-regulate their own relationships (both economic and personal,  familial and/or pertaining to couples by, for example, stipulating pre-matrimonial, post-matrimonial and para-matrimonial agreements). In this direction legal scholarship has also suggested the desirability of an increased sort to alternative dispute resolutions, such as Mediation and Conciliation.

The idea of a strong State intervention certainly has its appeal and can also count on some good reasons. In our system (and generally in French-Germanic derived systems) statutes are the only source of law and therefore, the issuing of an Act on the subject appears structurally necessary. However, it has to be taken into consideration that “family matters” are so complex and peculiar they cannot be subjected to a predetermined “standard” regulation and imposed by law, which is strict by nature. The peculiarity of family positions requires an extremely high degree of flexibility and adaptability, which statutory law does not seem to be able to guarantee: it is not possible to regulate in a general and abstract way what is by nature far too peculiar and real. Moreover, it has to be taken into consideration that, as it has been said previously, modern social reality and technological innovations have caused a crisis within traditional family institutions, which today, in Italy, in real life are very far from the code’s model. If we add that the extreme easiness of movement within and especially without the boundaries of the country often makes “national” law effectively inapplicable -as, for example, it was observed with artificial insemination ([14])-, or, anyhow, makes problems transnational (how was the case with trusts set up abroad and through which people tried to cheat on the limits imposed by the law regarding successions), it is easily understood that the solution cannot but be that of issuing a new reform act, which would globally reconsider the subject and which, while not limiting itself to a simple deregulation, would recognise the need to only establish basic rules, leaving, where possible, space to the privatisation of relationships rather than to their autonomous determination on behalf of single individuals.

The choice in favour of privatisation of family relationships, even if included within a wide “frame-legislation”, appears preferable for at least three sets of reasons. In the first place, for the extreme difficulty which, as it has been said, is implied in the work of micro-juridification of family matters.

Strictly related to this first observation is the consideration that a family, as a juridical institution, is born and justifies itself according to the single participants’ individual interests, and, more than that, that the law has the function of protecting the individual against the prejudice that family relationships or their coming to an end may cause him. Those interests would necessarily be sacrificed by a massive legislative intervention, which would inevitably place a specific conception of family relationships over specific realities ([15]). But, if this position could perhaps have appeared justifiable until recently, today it becomes less and less acceptable, considering the absence, noted above, of a uniform social model of family. As Italian doctrine has observed ([16]), it is totally contradictory, even if inspired by our best intentions, to want to extend marriage discipline and ties to someone who, by definition, has decided not to bind himself according to the rules established by marriage discipline, being it on the one hand inconvenient to wish for a minimum statute of living-in couples, which would end up institutionalising an inferior rank of families, and, on the other hand, totally useless, considering that, once we make de facto couples and legitimate ones equal, there would not be any reason not to resort to marriage. That obviously cannot mean giving up protecting the weaker parts in the relationship (think not only of a partner, but also of the children born from the de facto couple), as much as resorting to the development of autoregulation and the protection of positions specific to any individual relationship examined. Without, therefore, abandoning the weaker part to the will of the stronger one, but favouring each subject’s responsibility in a circumstance which, by nature, is founded on a manifestation of unity and equality.

In conclusion, the creation of a “light” family law, ready to intervene only if necessary, otherwise leaving individuals free to decide, but always within a common agreement, in other terms on a “contractual” basis, how to manage their own affective relationships, would represent a healthy acknowledgement of legislation’s limits to intervention in such a delicate field and, most of all, could limit the occurrence of controversies, also guaranteeing sufficient protection to who, for the most various reasons, cannot or will not resort to State regulation of the relationship (i.e. homosexual couples). According to this meaning, the “privatistic” choice seems to be preferable, thanks to its evident ability to support the real demands of individuals, without nevertheless compromising protection for situations that need to be safeguarded.

Now, that resort to private agreement is by now consented as regards de facto relationships it seems to me a consolidated point.

Either the case-law or legal doctrine, also taking advantage of the lack of legislation, have granted several times (and also sometimes stimulated) the stipulation of such agreements, not only limited to the regulation of patrimonial matters, during cohabitation but also for hypotesis of interruption of relationship.

And now this seems also to be the direction taken in questions of division and divorce for legitimate families for which, as I said before, the stipulation of “preventive” agreements is allowed.

It is more difficult to say if, also following some suggestions coming from other legal systems, in particular from those ones of Common Law –whose models and solutions circulate in any case in our country too- it is possible to stipulate conventions concerning aspects which differ from patrimonial matters like the agreements on education of sons, or on right to visit them, or more simply on the direction and organization of family life.

Also in this case, as it concerns de facto relationships, it seems to be possible to conclude such agreements, except for the derogability of fundamental rights (rules protecting children, for example). In any case such solution is logical and consistent with the same idea of the “de facto family” where subjects, as we have seen, shrink from authoritative ties in favour of self-regulation.

It seems to be different, at least up to now, the problem of legitimate family.

Certainly the same general planning of 1975 reform law has emphasized the role of will and the effective parity between husband and wife in the marriage but, as we have seen, this shifting has not produced a real and complete avowal of self-determination.

This because we consider that marriage (that it is the foundation of legitimate family) unlike de facto union, involves also the granting of the status of “married couple” and that this status, in its turn, behaves a whole series of rights and duties, of not exclusively patrimonial nature, intended to stay for ever and protected by law.

The Court of Cassazione and the Constitutional Court recently have confirmed ([17]) that matrimonial relationship is marked by “steadiness and certitude and from reciprocity and correspondence of rights and duties” and that legitimate family is “stable superindividual institution” protected as such by law.

Nevertheless this distinction appears really weak and frankly denied by facts. Today, in fact, it seems to me that, with introduction of no-fault divorce, with specific statutory provisions on filiation and on guardianship duties, with the emphasis on equality between the parties of matrimonial relationship, the same marriage has become an “engagement” without a definite time which continue up to the parties will to continue.  Further  rights and duties are in the marriage also delegated to reciprocal agreement which will establish the real content, leaving out consideration the abstract prevision of law.

Let’s think, for example, the obligations and rights arising from marriage, that are today only abstractly outlined from the legislator. Obligations of cohabitation, of fidelity and of reciprocal moral and material assistance, with the evolution of customs and need of modern life, have been practically deprived of their meaning; or better they have been entrusted to the will and the agreement of the parties which have to carry them into effect, in the same way as it happens in the de facto relationships.

It has became in the meanwhile more and more important the mutual consent on the menage that is to say the direction that husband and wife intend to give to their family life, with reciprocal and constantly renewed engagement day after day and on limits and in respect of the individual rights.

In my opinion, so the difference between marriage and de facto union seems to rest more than on a real difference of substance and content on the intention of the parties to create, or not, a legal (binding) relationship so as it happens in contractual matters, more or less.

In conclusion it seems to me that we can deduce from operative reality that today, in Italy, more than a «privatisation» of de facto relationships –by now given for granted- and a «privatisation» of patrimonial relationships of legitimate family –this one in broad part given for granted too- we could also talk of «privatisation» of matrimonial relationship with an evident upsetting of the traditional view.

This trend, though not yet consolidated, adds arguments in favour of the need of a completely new revision of statutory law  in family matters. But, obviously, this law reform must consider the disappearance of worn out  traditional conceptions and allow the maximum of private autonomy putting limits only to protect collective superior interests, laying down a discipline of general principles leaving wide space to the necessarily variegated choices of the individuals.

Doing so this desired reform will envisage to new realities and consequently will keep pace with times.

I am strongly convinced that this could be an ideal solution, which also perfectly corresponds with patterns, and models adopted in so many others legal systems all over the world.

Prof. Antonello Miranda (*)

University of Palermo

Xth ISLF CONFERENCE- BRISBANE 9th-13th July 2000

 

(*) I am indebted to many people and institutions (first of all the Faculty of political sciences of Palermo and the Department of private law) which made this work possible; a particular thanks goes to Doctor Deborah Orlando, my first scholar from the Faculty of  political sciences, who was able, with patience and attention, to review the text of this work contributing to the definitive drafting in English.



 

[1] J. Dewar, Family Law and its Discontents, in Intern. Journ. Law, Pol and the Family, 14, (2000), 59-85, at 60.

 

[2] Obviously all law changes and changes continuously. R. Sacco has vastly demonstrated this point maintaining, amongst other things, that mutations often do not depend on history, evolution, socio-economical circumstances and so on. Sacco moreover specified mutations may have different and sometimes complex origins and causes but, “some of the main, cardinal, mutations of systems are definitely related to equally cardinal social mutations. In other words: the most radical of social mutations – and only those – impose a correspondent mutation of the law”. Cfr. A. Gambaro, R. Sacco, Sistemi Giuridici Comparati, Torino, 1996, p. 34; Alan Watson, Legal Transplant and Law Reform, in 93 LQR, p. 79.

 

[3] R. Sacco, Introduzione al diritto comparato, Torino, 1994, p. 26, who suggests how “the study of ethno-law could induce us to study  the spontaneous law of advanced societies again”. A translation in English of Sacco’s essay is: Legal Formants: a dynamic approach to comparative law, in The Am. Journ. Comp. Law, XXXIX, 1991, p. 1-34 and 343-402.

 

[4] P. Rescigno, Il diritto di famiglia a un ventennio dalla riforma, in Riv. Civ., 1998, II, 109.

 

[5] Essential affairs, according to the logical interpretation of the combined texts of artt, 144 and 145 of the civil code, should concern “family life’s direction”.

 

[6] It has to be mentioned that the Divorce Act was submitted to referendum in 1974 and only after that date may be considered effective.

 

[7] Cfr. S. Mazzoni, Le famiglie ricomposte: dall’arrivo dei nuovi partners alla costellazione familiare ricomposta, in Dir. fam. e pers., 1999, 369 ss.

 

[8] P. Rescigno, Il diritto di famiglia…, cit., 112, after maintaining that “the reform marked, amongst other things, the confirmation of the supremacy of negotial autonomy within the family”, acutely observes that, by moving away from the prevailingly institutional conception of the group, we moved onto or at least revealed a tendency to accept an idea of family founded on mutual consent”. But only a tendency, since the consensual element and the expression of private autonomy have been praised, by doctrine and jurisprudence, for all intermediate social groups (art. 2 of the Constitution) and most of all for de facto familiar relationships.

 

[9] P. Zatti, Diritti e doveri del matrimonio, in P. Rescigno (Cur) Trattato di diritto privato (UTET, Torino) Persone e famiglia, Vol. 3, t. II, p. 74.

 

[10] J. Dewar, Family Law and its Discontents, cit., 61

 

[11] V. Scalisi, La «famiglia» e le famiglie, in La riforma del diritto di famiglia 10 anni dopo. Bilanci e prospettive, Atti del Convegno di Verona del 14-15 giugno 1985, CEDAM, Padova, 1986, 274 ss.

 

[12] Palermo’s Court decree 8.1.1999, for which see: A. Miranda, “Tragic Choice” in Italy: brevi note in tema di esecuzione post-mortem del contratto di procreazione medicalmente assistita, in Dir. fam. e delle Persone, 1999, I, 226 ss.; cfr. in more detail on the subject: A. Miranda, The Legal Status of the Pre-Embryo: Some Comparative Considerations Prompted by Davis v. Davis, in J.W. Harris (cur.), Property Problems. From Genes to Pension Funds, Kluwer, 1997, 39 ss.

 

[13] E. Quadri, Problemi giuridici attuali della famiglia di fatto, in Fam, e diritto, 1999, 507.

 

[14] It is hardly the case to recall how in the Artificial Insemination Bill until recently debated in Parliament there was provision for a heavy criminal sanction (twelve years in prison, if I remember correctly) against doctors who operated outside the boundaries of that same law. And if the doctor is not an Italian citizen, it will certainly not be easy to sanction his behaviour. Also think of the simple need to adapt to the EU Blood sentence and the picture of the inapplicability of national laws concerning artificial insemination will be complete.

 

[15] For example, see the problem of transmission of wealth within a family, on which the essay, in this congress by M.D. Panforti, A comparative study of the transmission of family health: from privilege to equality.

 

[16] On the point, more in detail, see: E. Quadri, Rilevanza attuale della famiglia di fatto ed esigenze di regolamentazione in Dir. fam., 1994, I, 288; and even more recently, Quadri, Problemi giuridici attuali della famiglia di fatto, in Famiglia e diritto, 1999, 502 ss.

 

[17] Cass.4/4/1998, n.3503; Corte Cost., 18/1/1996, n. 8.