Cohabitating relationships have existed for a very long time and over time they have come to be valued differently – both legally and morally. Here in Serbia, cohabitation was given an equal footing with marriage by the Serbian Family Law Act (in Serbian Porodični Zakon) in 2005 and then by the Constitution of Republic of Serbia (Ustav Republike Srbije) in 2006. Despite this however, the Serbian legal system still does not treat cohabitating relationships equally and this creates problems in real life.
The Serbian legal system is derived from the European continental system, not the Anglo Saxon system of law. This means that the Serbian approach consists of a set of legal norms contained within different laws.
The concept of a cohabitating relationship in Serbia implies a lasting union of a man and a woman who are not married. Same sex relationships and marriages are not recognized under law. In reality, of course, cohabitating relationships between partners of the same sex exist – they are just not legally recognized.
The initial legalities involved in marrying and in entering a legally recognized cohabitating relationship are similar. In order for the cohabitating relationship to be recognized, cohabitants must meet the same conditions as married couples – i.e. be different genders and without legal obstacles to the relationship. Of course, marriages are actually formed in a very distinct way, with a ceremony before the relevant state authorities, while cohabitating relationships begin with the couple in question simply choosing to live together. There is no legal form for them to complete.
In Serbian law a legally recognized cohabitating relationship must have the following three elements:
- The couple living together, called in Serbian a ‘community of life’ (in Serbian zajednica života).
2. The couple continuing to do so for a period of time.
3. The absence of legal obstacles.
The ‘community of life’ should be real, complete, and equivalent to a marital relationship. It is a community of one woman and one man that involves satisfying one another’s emotional, sexual, ethical, cultural and other needs.
The duration of the ‘community of life’ is equally important in law. The community must last long enough to be similar to a marriage. Serbian law specifies a “lasting” community. This means that it does not necessarily have to last a very long time, but it does need to not be temporary or limited.
Finally, there need to be no legal obstacles between the partners when the cohabiting cohabitating relationship begins. Examples of such obstacles could, for example, include the partners being related to each other, a previous marriage or one partner being underage.
Provided all three conditions are met, the cohabiting relationship in question will be recognized under the Family Law Act.
As I mentioned earlier, marriage and cohabitating relationships have equal status under the Constitution of the Republic of Serbia. Children born to married couples and to cohabiting ones have equal rights. But there is one key difference: in marriage there is a legal presumption that the father of the child is the mother’s husband, while in a cohabitating relationship the father needs to make a statement acknowledging paternity, and the mother must endorse that in front of the relevant state authorities. In certain situations, the consent of the guardianship authority is also required.
The Family Law Act also regulates the property relations of cohabitants. Assets acquired via work during the cohabitating relationship are the couple’s common property. This all means that the Family Law Act has legally equalized the status of spouses and cohabitants in respect of rights, obligations relating to support and common property. This does not apply, however, to inheritance.
After the death of a married person, the surviving spouse has the automatic right to inherit property. However, the Inheritance Law (Zakon o nasledjivanju) does not give cohabitants this right automatically. They must prove the existence of the cohabitating relationship in a special court procedure in order to inherit.
When it comes to inheritance, I must also mention that cohabitants don’t have the right to a family pension. The Law on Pension and Disability Insurance (Zakon o penzijskom I invalidskom osiguranju) states that, under certain conditions, a spouse has the right to a family pension (porodična penzija) after the death of his/ her spouse. But cohabitants do not. Divorced former spouses may also have pension rights in some circumstances, depending on the verdict of a court.
Therefore, although the Constitution of the Republic of Serbia specifies legal equality between spouses and cohabitants, it does not give pension inheritance rights to cohabitants.
The European Union, in some member states, already gives equal rights to same sex cohabitants. Serbia may do so in the future too, but first it will have to bring the various legal regulations into harmony with the Constitution of the Republic of Serbia. Doing so will finally give cohabitants rights that match those of married couples.
If children born to either type of relationship have equal rights under law, why shouldn’t their parents be equal too?