The Concept and the Role of Courts in Family and Succession Matters

Quick Facts

Type: Feasibility Study
Adopted: CD 2020/8
Commenced: February 2020

Proposers

  • Anatol Dutta
  • François Trémosa

 

Background

The administration of justice in the area of family and succession law is increasingly shifted by the States from courts to other authorities such as notaries, civil status officers, judicial officers, advocates or even the private parties themselves. ‘Dejuriditionalisation’ (borrowing from the Italian term degiurisdizionalizzazione) is not only a global phenomenon but also a tendency which can be traced in Europe: the divorce of marriage, the establishment or annulment of parenthood, the division of the estate in successions or the certification of the position as an heir, legatee, executor or administrator is often effected by institutions or persons which cannot be regarded as courts in the traditional sense.

The definition and role of courts in family and succession matters presents a practical problem in the EU and its Member States as the competences of different bodies vary in EU Member States and there seems to be a new tendency to shift court functions from courts to other authorities, eg to notaries who are increasingly entrusted by the Member States with non-contentious judicial procedures and act in a number of Member States as courts (court commissioners) and thereby encourage non-contentious judicial procedures.

This feasibility study would aim to develop an outline for a harmonised European concept of courts, building on the approach of the Court of Justice of the European Union (CJEU) in its recent case law, to ensure a harmonised application of EU instruments in different Member States by detecting and developing best practices and minimum standards to be fulfilled.