YEAR 2020 N.º 2
The familiar transformations that have taken place in recent decades impose a reflection (also) on the heritage component of family legal relations and on the management of family heritage.
In contemporary societies, the family is no longer seen as a productive unit but as a unit of consumption; in this sense, asset management that allows the family to finance the acquisition of goods and services and the legal rules applicable to that management are of particular importance.
Families often need financing from third parties (bank or private loans) to which they will give guarantees through their assets; at other times, it is the family that invests and finances, eg through participation in the share capital of companies or by placing properties on the rental market. In this sense, the family is also an investor unit.
The contemporary family and its heritage gained yet another characteristic: they are international, they move, and they often do so in large legal and economic spaces, such as the European Union. Emigration or immigration, transfers of financial assets or investments in assets across borders are realities that 21st century families know.
Be the family heritage involved in family businesses, whose legal treatment has clear specificities; if it has been invested in rental properties or committed to paying debts to banks, landlords, leasing companies; should this patrimony be divided in different ways depending on the changes suffered by the family structure, after death or divorce; if this patrimony stays confined to borders or gains an international dimension: in any case, it is necessary to challenge the law and the most appropriate solutions, both in Family and Succession Law, as well as in Commercial or Private International Law.
It is true that from a legal point of view, and in a superficial analysis, legislative changes in personal family matters are more visible, because they are more mediatized.
In fact, the admissibility and validity of same-sex marriage, the reform of legislation on divorce and parental responsibility, the establishment of affiliation through PMA, the legal regime of de facto union and life in common economy, joint adoption by people of the same gender, among others, received privileged attention, both from media and from social and political structures.
It is also reasonably accepted that all these “reforms” aimed, broadly, at deepening and densifying an idea of “private autonomy” in personal family matters and “de-normatization” of the family institution, now seen as a scenario of affirmation of the individuality and uniqueness of each of its members and their personal projects.
So, and without prejudice to some contradictions revealed by the legal solutions adopted in these matters (eg freedom to not marry vs. partially imperative regime in the de facto union; greater flexibility in access to divorce vs imposition of rules for sharing property; sedimentation of the affective criterion in the establishment of affiliation relations vs stimulating the establishment of biological affiliation by franchising the PMA methods) it seems even more notorious the absence of legislative intervention in matters of family heritage, omitting, precisely in matters where private autonomy encounters less resistance, a comprehensive and necessary reform of figures and institutes that seem to be out of date, such as the principle of immutability of property regimes, the (excessive) communicability of debts between spouses, the increase in the autonomy in matters of succession and “desecration” of legitimate or succession pacts or common hand wills. This goes beyond the ever-present disarticulation between the patrimonial rules of Family Law, Banking Law and Corporate Law.
Even so, in recent years, there has been a legislative intervention in matters of family heritage. An example, in the Portuguese legal system, is the amendment to the Civil Code, through which the possibility of reciprocal renunciation of the status of the other spouse's legitimate heir was enshrined (Law No. 48/2018, of 14 August), or of the death transfer of the lease for housing (Law no. 13/2019, of 12 February).
In the context of international family relations, the “revolution is underway”: through Regulation (EU) No. 650/2012, of 4 July, and Regulations (EU) No. 2016/1103 and 1104, of June 24, the law applicable to both inheritance and death regimes and property regimes and the property effects of registered partnerships can now be chosen by the parties involved, affirming the new philosophy of the primacy of autonomy in Private International Law in matters of personal status.
However, it must not be forgotten that, frequently, the articulation between conflictual autonomy in matters of succession and marriage is not the most appropriate, and it didn’t achieve, through this “Europeanization” of Private International Law, either a full harmony of decisions in all Member States or to avoid any doubts and problems of qualification, as is visible in the decisions of the CJEU in the Mahnkopf and Kubicka cases and predictable as to the qualification of reciprocal resignation by spouses to the status of legitimate heirs.
Reflecting on these problems was the objective of the International Colloquium The management of family heritage. Internal and international aspects, held at the Faculty of Law of the University of Porto, which took place on 22 November 2019.
This scientific meeting, organized as part of CIJE’s Research Project The shape of law to come - Economic effects of family in the 21st century, brought together lawyers, academics and specialists from prestigious institutions such as the University of S. Paulo, the University of Córdoba, the University of Coimbra, the Catholic University of Porto and the University of Minho.
Various topics were discussed, from family business (eg appropriate corporate types, governance, legal problems raised by the participation of family assets in the share capital, tax implications), to the "must-be" in the family (from financing to indebtedness to the distribution and transmission of assets, in the areas of leasing, marital debts, guarantees, successions) without forgetting the international dimension of the family, focusing in particular on the new European legislative framework on conflicts of laws and jurisdictions.
In this special issue of RED, dedicated to Family Heritage Management, addresses, in a comprehensive way, some important reflections that several speakers had the opportunity to share in this scientific meeting.
[Helena Mota is an Assistant Professor at the Faculty of Law of the University of Porto]