The dilemmas facing policy makers in England and Wales are familiar ones. Should cohabiting couples be obliged to share their assets or support one another upon separation in the same way that married couples are? Should divorce become a simple matter of administrative compliance, with an increased role for personal choice and agreement in determining its consequences? Should England and Wales follow the lead set by a number of European countries and allow same-sex couples to marry or allow heterosexual couples to enter into an alternative form of union? Or should the government try to promote marriage?

Although the questions are the same, the answers of UK policy makers might differ from those of policy makers in other countries. Developments in Europe have considerable influence on family law in England and Wales, particularly through the jurisprudence of the European Court of Human Rights and, to a lesser extent, the European Court of Justice. However, there is no European-wide consensus on the correct answers to these questions and, while convergence in some areas can be observed, reforms are also opening up new areas of divergence (Antokolskaia 2006; Bradley 1999). Across Europe, marriage policy appears to range from Sweden's “neutrality” stance toward different types of family relationships to the constitutional protection conferred on marriage in countries such as Germany and Ireland (Antokolskaia 2006). Yet, as Harding has observed with regard to the latter, such protection “no longer ensures that marriage is protected from modern influences” and is, in practice, of little effect (Harding 2011). Similarly, the Federal Constitutional Court in Germany has held that “a mere reference to the constitutional protection of marriage…does not suffice as a justification” for differences in treatment between registered partners and spouses (Dethloff and Maschwitz 2011). However, the legal consequences of marriage and cohabitation have not been completely aligned even in Sweden (Perelli-Harris and Sánchez Gassen). The differences between jurisdictions are, therefore, not as striking as they might at first appear, and efforts are being made to bring about further convergence. The Commission on European Family Law, an international group of scholars, is engaged in an ambitious project to harmonize family law across Europe, seeking to identify a “common core” where this is possible and to formulate “better law” where it is not (Boele-Woelki et al. 2004). The Commission's proposals provide possible solutions to at least some of the questions posed earlier.