RICERCA ITALIANA     

Family law and social and technological developments: a comparison between different models and juridical systems and experiences

Università degli Studi di Palermo

Abstract

The proposed research is aimed first of all to investigate the impact of changes and technological development on the traditional conception of the family: it is not only a question of minor amendment or small improvements but rather a of a general rethinking of the role of family law in a modern and complex society such as prevails in present day Italy. In particular the investigation is direct to establish the impact on the traditional conception of mono-nuclear and legitimate family (based on indissoluble marriage), that have been put under pressure from strong social forces to obtain major equality of roles and a real parity between the sexes, recognition of the paramount importance of children's rights and interests, development of new technologies particularly in field of artificial fertilisation, the increasing number of de facto and same-sex relationships, the increasing number of divorces (reinforcing the need to protect the rights and interests of the weaker partner, the increasing number of births "outside marriage" and growing number of families incorporating children with different blood parents or/and one-parent families.
Secondly the research will measure the consistency of the Italian legal system with the emerging European trends, as well as on indicating the instruments to adapt our law to the EC indications especially those relating to questions such as marriages and divorces of mixed couples or of foreigners (with different religions, traditions >>>

Principal Investigator

Antonello MIRANDA Università degli Studi di PALERMO

Research Objectives

In the last 10 years in a various civil law systems and in particular 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 particularly from the recognition of major equality of roles and a real parity between the sexes, of the paramount importance of children's rights and interests, the increasing number of de facto and same-sex relationships, 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 has an increasingly international dimension, largely because of greater worldwide mobility. Nowadays we have to deal with matters such as marriages and divorces and even cohabitation of mixed couples or of foreigners (with different religions, traditions and customs) living in Italy. Alongside the existing traditional marriage system based on the status and strongly linked to a State run set of legal rules nowadays we can observe the development of a liberal conception of the family as a private sphere beyond the reach of the state interference. Till the end of ‘80s the state has long interfered in family life by laying down expectations of behaviour, ranging from the obligations of marriage (not only from an economic point of view but also considering the duty to cohabit >>>

First Results

The first phase of storing data and informations has the purpose to get a general view of the topics. Thus, at the end of this first step it will be found and stored a significant quantity of doctrinal articles and essays, leading case's and sentences.
In the second phase, the founded material will be deeply studied and analysed in order to value the impact of different adopted solutions. It will be dedicated to the elaboration of saved data and informations. This phase will be aimed to eliminate outdated positions and to realise a critic and analytic examination of the principal questions and topics.
The third phase is dedicated to the analysis of the results reached thanks to the critical examination of data coming out phase two. In this third phase the research will be aimed to the proposition of new interpretation thank to the comparative analysis of solutions and experiences of the different legal systems to elaborate articles and essays on the field studied.The second step of the research will be dedicated to the elaboration of founded data and informations. This will be in order to eliminate all the outdated positions and interpretations and in order to aim a critic and analytic examination of the matter.In this phase the units are expected to analyse the materials found during the researches, in particular by a complete and possibly new interpretation and reconstruction of the informations and legal data, and by studying the doctrinal and judges choices >>>

Timescale

24 months

National and international background

J. Dewar 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"; 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. 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. 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 >>>