1. 1
PARTY
AUTONOMY
IN
INTERNATIONAL
FAMILY
LAW
-­‐
An
Economic
Perspective
-­‐
Jurčys
Paulius
ユルチス ポール

2. 2
outline
• Party
autonomy
&
international
family
law
• Marriage
as
a
contract?
• Economic
rationale
of
party
autonomy
• If
marriage
is
more
than
a
contract?
• Observations

3. 3
1.
PARTY
AUTONOMY
&
INTERNATIONAL
FAMILY
LAW

4. 4
UK
SUPREME
COURT
(2010):
Radmacher
v
Granatino
4

5. 5
1.
PIL
BACKGROUND:
Expansion
of
Party
autonomy
in
IFL
Party
autonomy
in
IFL
• Law
governing
matrimonial
property
• Law
governing
divorce
and
other
consequences
• Choice
of
law
in
other
areas:
succession,
maintenance
Limitations
• Public
policy
• Protection
of
weaker
parties
(children)
• Sovereignty,
comity

6. 6
1.
PIL
BACKGROUND:
Expansion
of
Party
autonomy
in
IFL
Socio-­‐economic
justifications
• Equal
status
of
husband
&
wife
• Globalization
&
mobility
of
persons
Legal
Justifications
• Constitutional
traditions
and
natural
rights
theory
•
Extension
of
private
autonomy

7. 7
2.
MARRIAGE
AS
A
CONTRACT
-­‐
PIL
-­‐
Simon
Bruce:
“Pre-­‐nups
are
like
a
form
of
fire
insurance
-­‐
far
better
taken
out
before
the
event”

8. 8
2.
MARRIAGE
AS
A
LONG
TERM
CONTRACT
Specialization
theory
• Marriage
as
an
institution
for
raising
children;
sharing
costs
of
living
etc.
Investment
theory
• Marriage
as
a
guarantee
for
investment
(i.e.
alimony
compensation
for
loss
)

9. 9
2.
MARRIAGE
–
A
LONG
TERM
CONTRACT
Economic
justifications
Functions
of
party
autonomy
in
IFL:
• Market
conform
transactions
• Efficiency
&
legal
certainty
• Competition
of
legal
systems

10. 10
2.
MARRIAGE
AS
A
LONG-­‐TERM
CONTRACT
Economic
justifications
Limitations
of
party
autonomy
in
IFL:
• Information
asymmetries
• Externalities
(taxes,
parents
and
children)

11. 11
4.
IS
MARRIAGE
JUST
A
CONTRACT?

12. 12
3.
MARRIAGE:
More
than
a
contract
Marriage
as
a
SIGNAL
• Marriage
vs.
other
forms
of
relationship
Individualization
theory
(Luhmann)
• if
A
loves
B,
certain
issues
that
would
not
otherwise
matter
become
important
(e.g.
B
curious
whether
A
had
breakfast
etc.)

13. 13
3.
MARRIAGE
AS
A
SIGNAL
PERSON
PERSON
AUDIENCE
traditional
economic
theories
signaling
function
Marriage

14. 14
MARRIAGE
AS
A
SIGNAL:
Implications
to
Party
Autonomy
(1)
Surplus
value
of
marriage
• How
to
conceptualize
it?
Relation
to
the
existing
economic
justifications
of
PA
• A
different
perspective
to
public
policy
argument
which
was
used
to
justify
the
limitations
of
party
autonomy

15. 15
MARRIAGE
CUSTODY
DIVORCE
MATRIMONIAL
PROPERTY
Number
of
Stakeholders
Scope
of
Party
Autonomy
MAINTENANCE
MARRIAGE
AS
A
SIGNAL:
Implications
to
Party
Autonomy
(2)

16. 16
MARRIAGE
AS
A
SIGNAL:
Implications
to
Party
Autonomy
(3)
SURPLUS
VALUE
OF
MARRIAGE
PARTY
AUTONOMY
EXPAND?
RESTRICT?