Zbornik Pravnog Fakulteta Sveučilišta u Rijeci (Jan 2012)
PARTY AUTONOMY IN FAMILY, STATUS AND INHERITANCE MATTERS
Abstract
This paper deals with the issue of party autonomy in certain areas of private international law, i.e., family law, personal status issue and right of inheritance, in which this correlation has only recently been affirmed. The reader is first introduced to the fundamental problems of the choice of applicable law, shifting the focus later on the specific problem of party autonomy in the area of marital property regime, divorce, child support, determining an individual's name as well as on certain issues of inheritance with an international element. There are several important parameters that lead to the trend of strengthening of the given correlation in the respective fields. The objective reality is manifested in the fact that globalization has led to the internationalization of families moving across borders, and these families are entitled to an effective cross-border legal system and legal protection. Likewise, the parameter of legal reality reflects in significant differences of substantive laws. Finally, there is an institutional reality at the EU level, since the EU has jurisdiction (over cross-border matters) to undertake actions and provide legal tools in order to respond to the contemporary objective reality and to compensate for the insufficiency of the existing legal reality. In technical drafting terms recent pieces of legislation, deriving both from national and EU sources, give party autonomy a primary correlative function thus further affirming its status. By examining these legislative acts it can be concluded that in all of them party autonomy has a twofold restriction: the choice is possible only between several connecting factors that are already closely related to a specific legal relationship, while international mandatory rules are being introduced. The author elaborates both in terms of scholarship and by means of hypothetical examples a set of advantages and disadvantages of party autonomy in the respective legal fields, while drawing on significant practical implications of the rulings of the Court of Justice of the EU and the ECHR which by extending the principle of "mutual recognition" from the sphere of foreign decisions in the sphere of foreign law, make way for a dangerous trend of party autonomy generating in creating a European market of "family law products"!
