From the right of families to self-determination

Yves-Henri Leleu

Holder of the prestigious Francqui Chair 2018-2019, the Dean of the Faculty of Law, Political Science and Criminology of ULiège also defends a progressive vision of law. In the aftermath of his inaugural lecture at UGent, we asked him a few questions about his research and his strong position in favor of individual freedom.

You work on family law, in the plural. This formulation is not innocent.. 

Indeed, I want to deal with all families. For a long time, the law has only focused on certain families, married couples to be precise. My goal is to try to find solutions that allow all families to be protected by the law, regardless of their legal form.

This is not the case at present? 

No, unfortunately, the law continues to mark differences, admittedly very subtle and perhaps not technically discriminatory, but nonetheless concrete and which weigh on daily life. This is particularly true for married and unmarried couples. The former benefit from much greater protection than the latter. It is noticeable, for example, in the event of separation, at the time of the distribution of the couple's property and maintenance claims.

What justifies this difference in treatment by the legislator? 

It is less ideological and confessional than before, and largely based on the idea of choice and its legal significance: married couples would voluntarily place themselves under the protection of the law, while those who choose not to marry would consciously choose not to benefit from it.

Personally, I question the relevance of this criterion of distinction, even though consent is a pillar of civil law.

Wouldn't not getting married be a real choice?

If it is a choice, it is not in all cases the choice to exclude legal protection.

There are many reasons why couples no longer marry as much or systematically. Beyond the symbolic aspect of marriage, there is its cost, for example. Sociologists show that some couples decide not to get married mainly because of the cost of the party, as they prefer to allocate this budget to other priorities. The psychological aspect, the stress of disappointing the family's expectations if you don't go all out, also plays a role.

For me, the legal system is wrong in that the choice not to marry is primarily not legal and therefore should not have the significant legal consequences that it is given.

One of the ways you advocate to remedy this difference in treatment is to give more power to the judge, rather than to the legislator 

Yes, I do. I start from the fact that the legislator is currently unable to provide a valid framework for all existing and future family configurations. However, two families in the same situation should benefit from the same protection.

In this context, the legislator can perfectly well organize statutes or protection regimes that leave the judge a margin of intervention and adaptation to reality. For example, by allowing a judge to intervene for a fair distribution of the assets of married or unmarried couples who separate, even if this is not expressly stipulated in their marriage contract or cohabitation agreement.

Your research also concerns personal rights. On this point, in contrast to family rights, Belgium is rather exemplary 

Indeed: in terms of respect for the free choice of individuals in matters that concern their body, their life, their ethics, we are at the forefront of the world with the Netherlands in particular.

The last step that the Belgian system has taken is to put the individual and the administration or the executing authority on the same side and no longer face to face. Euthanasia, sex change or first name change are carried out via what I call "decision mediators", persons or institutions invested with the competence to enforce a free and individual decision.

Autonomies and couples' rights are among the topics you will address in the Francqui Chair's course cycle. What will be the third topic? 

I will talk about filiation and the way in which the search for one's origins is increasingly assimilated to a right of identity. Very strong legal rules, such as the statute of limitations, can now be set aside when they prevent individuals from taking this identity-based step.

In the end, all these themes overlap, since they all speak of the increasing individualization of society and the way in which the law accompanies these changes.

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