50 Years of Developments in Family Law in the Westernised World: The Long and Winding Road

50 Years Development of Family Law in Westernised World: The Long and Winding Road
Masha Antokolskaia
Professor of private and Family Law
Vrije University Amsterdam the Netherlands
President of the ISFL

In 2023 the ISFL celebrates its golden 50-years jubilee. If we look back at the period from 1973 till 2023, it becomes clear that there has been hardly any other period in the history of family law that witnessed so many almost simultaneous profound changes in so many countries. The large aria, that could be roughly dubbed as the ‘Westernised world’ (Europe, North America and Australia and New Zeeland), but also South America, Japan has experienced at this time a real revolution in the field of family law. It is difficult to abridge even the most significant transformation that has taken place in this relatively short time span. The women’s rights movement managed to overcome the centuries-long dominance of man within the family. At least formal equality between men and women is now the fact throughout the whole of the Westernised world. Before that period Westernised countries recognised only one form of intimate relationships: legal marriage. In contrast, today a whole range of varieties of intimate relationships are legally recognised: heterosexual and homosexual marriage, registered partnerships, and non-institutionalised cohabitation. At the beginning of that period only a handful of counties allowed for no-fault divorce. From the 1970th onwards no-fault divorce revolution swapped over the Westernised world, so that now hardly any country maintains fault as the only divorce ground. On the eve of this period illegitimate children were strongly disadvantaged everywhere. At present, the legal status of children born to unmarried parents is basically equalised with the status of children whose parents are married. A child came to be perceived as a growing personality with its own rights and voice rather than a passive subject of protection and education by the adults. In the field of protection of persons with disabilities this period has witnessed a genuine paradigm shift from the old protection to the modern empowerment paradigm.

The motor of the change was everywhere the same: the second demographic transition, the economic, social and legal emancipation of women and the emergence of the welfare state combined to create the socio-economic conditions that made implementation of the Enlightenment ideas into family law finally possible. These changers of that period have affected the whole of the Westernised world, however the pace and the profoundness of the transformations differed from country to country. Several influential scholars have attributed these differences to the influence of the national cultures. In my earlier work I have suggested that from all societal factors that one could consider, it is above all the differences in the balance of political power between ‘progressive’ and ‘conservative’ camps, that make the pace of the modernisation of family law various westernised countries different. The period of last half century was a generally progressive period of the history of most parts of the world. However, even in the generally progressive climate, not everyone was equally content with these changes. Conservative camps in each country resisted modernisation as much as its political influence went but could not altogether impede the upcoming changes.

The unprecedented rapid movement of family law of the westernised countries in the same direction could make one dream [of have a nightmare] that a final ‘final point’ of family law evolution – a kind of ‘end of history’ – is near. The events of the past few years could help us out of this illusion. If we look at our present situation, it seems that the generally progressive period, that has started the period in the end of the 1960th, is now coming to an end. Political power of conservative and ultraconservative forces is growing in many westernised countries and in other parts of the world. This trend has its immediate reflection on family as family law often becomes the one of the first battlefields of the new cultural wars. Conservative regimes and conservative camps make defending traditional family values into their battle cry. So, the extreme conservative Putin’s regime is busy with reversing the long-standing tradition of progressive family law in Russia under the motto of defending traditional family values from the gay parades. The extreme-conservative Trump’s supporters lounge similar attack on the progressive elements of the USA family law. The same tendency is manifest in Poland and Hungary and – to a lesser extend - in some other Eastern European countries.