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Marriage, Cohabitation and same-sex partnerships in Slovenia, Croatia, and Serbia
2021.10.19. @ 11:30 - 13:30
Regulation of marriage in Slovenia
Lina Širec, Maja Kozole, Hanna Karić, Naja Škarja, Vanesa Kozina
Marriage is a legally regulated life partnership of husband and wife, who, with mutual respect, family relationships, mutual emotional attachment and joint work, form a more effective social cell for socialization. Our law recognises as marriage only the life of two people of different genders. In addition, in order to marry, it is necessary that the persons to marry consent and to declare their consent before the competent national authority. The two persons intending to marry are registering with the competent matisse, who runs the wedding register for the settlement where they wish to marry. People enter into marriage for a variety of reasons, the most common of which are social, emotional, economic, spiritual and religious, and of course the relationship is also based on mutual respect, understanding, trust and mutual assistance. Under the law itself, all assets acquired through work between spouses are considered joint property and the spouses are equal, equivalent and in many ways allies.
We have noticed the gradual decrease in the number of marriages around the world in the period after the Second World War. For reference: in 1950, 11.4 marriages were concluded per 1000 population, while by 1984, that number had dropped to just 7.3 marriages per 1,000 population. Nevertheless, in the time of Yugoslavia Slovenia stood very high on the scale in terms of the number of marriages in comparison to other countries in the world.
As far as statistics are concerned, 5,214 marriages were concluded in Slovenia in 2020. According to current data, there were about 4 fewer divorces in the same year, namely 1774. Last year, the number of marriages was 22% lower than in 2019, and the number of divorces was 28% lower. Here, however, we must look at the fact that the conditions for marriage in 2020 were significantly tougher than the year before, which we can associate with measures, taken at the time in order to contain the Covid-19 during the pandemic. Rate marriage or the number of marriages per 1000 population was 2.5 this year, which is the lowest value since 1954, when we started statistically monitoring the number of marriages in Slovenia. It is also very interesting to note that the average age at the time of the first marriage, also of the groom, as well as the bride, in our country for 2020 is around 30 years. The grooms this year were on average almost three years older than brides.
In the past the absence of witnesses constituted a material breach of form that caused nullity. Today, a post-communication society enables the registration of a marriage in the registry and the extract serves as proof. 36. Article of the Family Code states that notwithstanding the provision of the preceding paragraph, a marriage may be concluded without the presence of witnesses if the future spouses wish so. Presence of witnesses merely follows tradition, a greater ceremony of marriage, it is not a formal condition.
In the past, Marriage and Family Relations Act regulated dissolution of marriage – with the death of one spouse, with the declaration of one spouse as dead and with the divorce. Today, Family Code in addition to the existing ones, also stipulates enforceable annulment of the marriage, and also introduces an amicable divorce in front of a notary. Article 97 of Family Code states that if the spouses who do not have mutual children over whom they take parental care wish to divorce and agree on the division of joint property, who of them remains or becomes a tenant of the apartment in which they live, and on the subsistence of a spouse who has no means of subsistence and is not employed through no fault of his own, require the notary to draw up a notarial record of the spouses’ divorce agreement.
Family Code brought novelties in the field of marriage, especially between spouses, because it enables the arrangement on property relations. With this contract, they can determine their property regime, that differs from the legal property regime. This allows spouses the regulation of property affairs during marriage and also in the event of divorce; co-owned property, separate property, spousal support/maintenance, maintenance and division of property in the event of divorce etc. The subjects of the marital property agreement can be future spouses, spouses, cohabitants/cohabitating partners, partners in a civil union. The agreed property regime shall aply to spouses as of the date of conclusion of the agreement, unless the parties agree otherwise. If a marital property agreement is concluded by future spouses, it shall take effect on the day of conclusion of marriage or on a later day determined by the spouses in the marital property agreement. Before concluding a marital property agreement, the spouses shall inform the other spouse of their material standing; otherwise, the marital property agreement shall be challengeable. Property regime determined in a marital property agreement overrules the legal marital regime. According to the principle of autonomy (of the contracting parties), spouses can freely shape the content of their property regime. Marital property agreement has to be in notarial record form (spouses are autonomous wheen choosing a notary + notary has an obligation to explain – which means, he advises on (property) rights, obligations, gives unbiased advice, informs of legal consequences). Such an agreement is entered into a Register of marital property agreements, which is an electronic database maintained by the Chamber of Notaries of Slovenia. Under the Article 94 Family Code stipulates that if such an agreement is not entered in the register in relation to third parties it shall be presumed that the legal marital regime applies to property relations between the spouses. Statistics show that in 2019; there were 96 concluded marital property agreements, in 2020; 108 and until 14th of October 2021 there were 74 concluded marital property agreements, today there are many more.
Spouses attend prior counseling at the Center for Social Work before bringing an action or proposal for amicable divorce. They do not need to attend prior counseling if: they have no children in common over whom they have parental care, one of the spouses is unwise, the spouse’s residence is unknown or spouse is missing, one or both spouses live abroad. The purpose of prior counseling is to help spouses determine whether their relationship has been shaken to the point that the marriage has become unsustainable for at least one of them, or whether there is a possibility of maintaining the marriage. Spouses must attend in person. Center for Social Work 14 days after receiving the proposal for prior counseling, invite the client to prior counseling. Mediation can take place before, during or after court proceedings. It includes assistance in arranging property and personal relationships.
Failure to fulfil the conditions for the existence or validity of a marriage or partnership is possibility of applying for a declaration that the marriage or partnership does not exist. A marriage is non-existent if, at the time of the conclusion, the conditions for the existence of the marriage determined by law were not given, that the persons entering into marriage are of different sexes , that the persons have declared their consent to enter into marriage, and that the persons have given their consent before the competent state authority. If a marriage is found to be non-existent in the proceedings, such a marriage has no legal consequences.
CIVIL UNIONS IN SLOVENIA
Maša Kočivnik, Sara Nanić, Jelena Popović, Maša Rauh
A civil union is a living community of two women or two men, the conclusion, legal consequences and termination of which are regulated by Civil Unions Act, which was written in 2017. Homosexuality was deleted from the list of mental illnesses in Yugoslavia and those kinds of partnerships have not been marked as criminal act anymore.
In Slovenia we have already had three referendums on this topic. The first referendum concerned biomedical assisted reproduction. The result was negative and the most controversial provision seemed to be the one that would allow single women to have artificial insemination. The second referendum in 2012 also had a negative result. It decided on the possible adoption of children in same-sex communities. In 2015, however voters rejected a referendum about equality of partnerships and marriages and clearly rejected an amendment to the law that would allow same- sex couples to marry.
Since 2017, civil unions have the same legal consequences for all legal entities as a marriage. The main difference is that the partners of the civil union do not have the right or cannot jointly adopt a child in Slovenia, nor are they entitled to artificial insemination or the procedure of insemination with biomedical assistance.
THE CASE OF RECOGNITION OF ADOPTION FROM THE USA (VSRS decision II Ips 462/2009): A same-sex couple, one with Slovenian and other with American citizenship, registered a same-sex partnership in America and adopted a baby girl there. The couple wanted to register her in the birth register in Slovenia. As the adoption was granted by the American court, a decision has direct effect only in America. Because the decision has no effect in Slovenia, the couple needs Slovenia to recognise the American decision in order to register the girl in the birth register. The Court of First Instance acknowledged the American court’s decision and stated that they were not deciding about the adoption of a child by same-sex partners, but only on the recognition of a foreign decision. The Supreme Prosecutor’s Office appealed against this decision, they argued that the decision is incompatible with Slovenian public policy. In the end, the Supreme Court ruled that adoption by same-sex partners is indeed contrary to public policy in Slovenia, but that in this specific case, the decision is merely about the recognition of a foreign decision. This question is related to the international law, which is above Slovenian public policy. The American decision was recognised in Slovenia, and the girl’s parents were registered in the register as parent 1 and parent 2, not as father and mother. This case represents important milestone in Slovenian case-law.
EXTRAMARITAL UNIONS IN SLOVENIA
Nino Dotto, Ina Radolli, Lara Roškar
Extramarital unions have in Slovenia long tradition. First lefal act addressing some rights of cohabitant was adopted already in year 1922. Since 1991 also Slovenian Constitution in its Article 53(2) provides that marriage and the legal relationships within it, the family, and the extramarital union shall be governed by law. The law governing marriage and the legal relationships within it, the family and cohabitation, is the today Family code, which was adopted in 2017. Family code defining the extramarital union follows the prior Marriage and Family Relations Act from 1976.
Article 4 of the Family code defines an extramarital union a long-term living union between a man and a woman who has not entered into a marriage and there are no grounds for the marriage between them to be invalid. An extramarital union has the same legal consequences for the relationship between partners under the Family code as if they had entered a marriage. However, in other areas of law, an extramarital union has legal consequences if the law so provides. As a result, a partnership may be recognized as an extramarital union in one case and not in another. Each authority (court, tax office, social work center…) establishes the existence of an extramarital union in its own procedure and for its own needs.
People choose cohabitation over marriage either because of bad experiences from the past, financial benefits or just because they do not want to feel like a subordinate to the state. Sometimes two people together also want to have the probation period of living together before deciding for marriage. The reasoning for not getting married is usually the fact, that there are no big differences if they are or not.
As mentioned an extramarital union has consequences just between cohabitatans. The relationship between parents and children is regulated in the Family Code. Every child has the right to know his or hers origin, that means that every child has the right to know its parents. The definitions of maternity and paternity derive from Roman law and are deeply imbedded in the roots of our system. From the old roman principle »mater semper certa est; pater est, quem nuptiae demonstrant« derives that the husband of the mother is the father of her child and that the mother is the woman who gave birth to that child. However this principle became obsolete with time, especially with improvement of medicine and science of DNA analysis. The results show that there a substantial difference between assumption of paternity and actual status quo in the society. Legal basis for paternity is from 112. to 134. Article of Family Code. Very important part of this legal basis are also paternity recognition procedures. If a child is born outside marriage, the man who acknowledges the child as his own or whose paternity is established by a court decision shall be considered to be the father. Acknowledgement of paternity shall be valid and shall be entered in the civil register only if consent to such acknowledgement is given by the mother, who has to be informed by civil registry officer.
The statistics from 1. January 2018 reveal that there are 14,4% of extra-marital cohabitations out of all families. For example in 1981 it was only just 2%. There are 1,62 children in extra-marital cohabitation per family, this is a 55%-58% share of all children.
CONCLUSION OF RELIGIOUS MARRIAGE WITH CIVIL LAW EFFECTS IN CROATIA
Students Petra Jurina and Frane Karaban presented presented the conclusion of religious marriage with civil law effects in Croatia. In the Republic of Croatia there is a possibility to conclude civil or religious marriage both with civil law effects, or religious marriage as a private matter of spouses and no effects in civil law system.
For civil marriage and religious marriage with civil law effects the conditions for existence of marriage should be met (difference of sexes of spouses, consent of nupturients and the presence of an official – registrar/representative of the religious community). Additionally, the conditions for validity should be met: age of majority, legal/business capacity, capacity to act at the time of the conclusion of marriage, kinship and existent marriage or same-sex partnership.
The possibility to conclude religious marriage with legal effects was introduced by a bilateral agreement of the Republic of Croatia with the Holy See on 19 December 1996 on legal questions. Due to this contract a canonical and a civil marriage are concluded in a single ceremony. The most important is Article 13:
„i) Marriage according to canon law, from the moment of its celebration, shall enjoy the benefits of civil law according to the legal norms of the Republic of Croatia if there are no civil or contrary impediments and if they meet the legal requirements established by the Republic of Croatia.
ii) The means and the period within which marriage registration may be undertaken are laid down by the respective laws of the Republic of Croatia.
iii) The preparations for canon law marriage shall include the instruction of the future spouses in the teaching of the Church on the pre-eminence of the sacrament of marriage, and in particular on its indissoluble nature as well as on the civil effects of the marriage bond according to the law of the Republic of Croatia.
iv) The decisions of ecclesiastical tribunals to annul a marriage and decisions of the Supreme Authority of the Church on the dissolution of the marriage bond shall be communicated to the competent civil tribunal to effectuate the civil consequences of the order, according to the legal norms of the Republic of Croatia.“
Following this international agreement, the government has concluded contracts with other religious communities in the Republic of Croatia after the adoption of the Law on the Legal Status of Religious Communities (Serbian Orthodox Church, Islamic Community, Evangelical Church in Croatia, Jewish community, etc.)
The Family Act (2015) regulates the procedure. It is important that the bride and the groom are obliged to obtain a marriage certificate of fulfilment of the marriage conditions laid down in the Family Act. The marriage must be concluded before an official of the religious community with whom the Republic of Croatia has regulated relations.
After conclusion of marriage, the official of the religious community with whom the Republic of Croatia has arranged relations must be present. The official of the religious community before whom the marriage was contracted in religious form is obliged to submit to the registrar, who has issued the marriage certificate, the document that the marriage has been concluded within five days since the conclusion of marriage. The registrar must enter the marriage into civil status register and issue the excerpt from the marriage register to spouses.
The event was organised as part of the Central European Professors’ Network (CEPN) 2021 coordinated by the Ferenc Mádl Institute of Comparative Law.