The lecture was given during the XI Scientific Conference entitled “Law between Creation and Interpretation“ on the occasion of The Day of the Faculty of Law, University of East Sarajevo, Faculty of Law.
The University of East Sarajevo, the Faculty of Law, organized the conference, in cooperation with the European Public Law Organization, the International Union of Lawyers, the Institute for Comparative Law, Serbian Association for Criminal Legal Theory and Practice, and the Institute of Criminological & Sociological Research on the 5November 2022. The conference was held in a hybrid form due to many participants. Various topics were covered; the lecture entitled “Judicial re/interpretation of family law institutes in contemporary Croatian family law” was given online in the Civil Law Section 1.
The lecturer described recent experiences when the courts took a more active role in shaping the family law system. In the post-transitional changes, legal doctrine of the separation of powers changed in a way that the courts became increasingly active, changing the interpretation of generally quite understandable legal norms. Traditionally, in the continental-European legal circle, the parliament has the power to make and change the law and the judiciary has the power to render judgments on the law. Nowadays, the judiciary demonstrates its power and devotion to interpret, and sometimes to reinterpret legal norms, not only fulfilling lacunae but also changing goals set out by the legislator – the Parliament.
In the lecture, three examples were explained: the change of the requirements for de facto non-marital union, the possibility of a homosexual couple to become foster parents, and the possibility of a homosexual couple to apply and to concur in the adoption procedure.
The Family Act of 2003 contained a provision that a non-marital union, to produce legal effects, had to last for at least three years, or a child had to be born in the union. Some other requirements were that non-marital spouses were a man and a woman and they had the free marital or the same-sex partnership status.
In 2012, the Supreme Court took the position that the property of a non-marital spouse that had existed before the formation of a non-marital union represented a unique continuity of property after entering into marriage, even if the non-marital union had not lasted for at least three years or a common child had not been born in the union as prescribed by Article 3 of the Family Act of 2003.
The first example was the case of a successful basketball player who had lived in a non-marital union and, after less than three years, got married. A child was born shortly after getting married. During the non-marital union, the man had concluded an exceptionally valuable sports contract. After their divorce, his ex-wife claimed half of the value of the income from this sports contract, arguing that their non-marital union wad continued by marriage.
As an argument, the Supreme Court pointed out, in the statement of grounds, that the quality of the parties’ union was improved. “In the case at hand, the non-marital union of the parties is at issue, whose form was changed after less than three years by their entering into marriage in which their common child was born. In light of the continuity of the parties’ union, and in particular, the improvement of its quality (in relation to the legal status), this court holds that the continuity of non-matrimonial property first belonging to non-marital and then to marital spouses is involved here.”
The problem was that the change of interpretation was against legal certainty – if the husband had known that the legal rule was going to be changed, he could have concluded a pre-marital agreement, but he did not, as he trusted the wording of the law.
The second example was the ruling of the Constitutional Court of the Republic of Croatia concerning the possibility of a homosexual couple to become foster parents of a child.
A same-sex couple wanted to foster a child. However, in administrative proceedings before a social welfare center, they were unsuccessful because the law did not include life partnerships (of same-sex persons) in the notion of a foster family. The Foster Care Act (2018) Article 4, para. 3 defines the foster family as a “union consisting of spouses or non-marital spouses, children and other relatives living together, earning, making income in some other way and consuming it together. The child not living with the family shall also be regarded as its member, provided he or she undergoes education until he or she completes his or her education, yet not beyond the age of 29.”
In the parliamentary debate before enacting, it was pointed out „that the goal of the Act is to reinforce foster care capacities, the quality, and scale of foster care, thereby exclusively protecting the best interest of children (adult beneficiaries were mentioned only sporadically), as well as the view that the same-sex life partners are not to be included among the potential foster parents is supported by socio-cultural reasons, i.e. the fact that in Croatian society, the phenomenon of the same-sex foster parents would still not be accepted, all cause indignation and rejection and further stigmatize foster children who are already traumatized by their experience and stigmatized by social conditions in which they live.” Indeed, the aim of the legislator was quite obvious as it was expressly and clearly articulated.
The couple interested in getting permission to foster a child applied to the Constitutional Court, arguing that they were victims of discrimination. The Constitutional Court ruled that the disputed legal provisions, from which a certain social group is omitted (‘silenced’), produced general discriminatory effects towards same-sex-oriented persons living in life- and informal life partnerships, which was constitutionally unacceptable. In its decision of 2020, the Constitutional Court emphasized that the courts must interpret law in the spirit of the protection of human rights.
The Constitutional Court also concluded the following: „In addition, the fact that by the already mentioned other acts, the members of that same social group have already been accorded the legal status of ‘the family union’ in the legal order of the Republic of Croatia, together with the corresponding legal effects in all fields of life, is undeniable.”
Furthermore, Article 11, para. 3 of the Foster Care Act did not provide that persons living in the same-sex partnership, as beneficiaries of traditional foster care, can be accommodated together (as opposed to marital or non-marital spouses), from which the Constitutional Court inferred, that based on the Life Partnership Act, providing that life partnership, in the field of social welfare system, produces the same effects as a non-marital union. Life partners „have a legitimate right to expect that in a traditional type of foster care they be accommodated together, already due to the fact the Life Partnership Act protects family unity of same-sex partners in the same way as it protects marital unions” (para. 27 of the decision of the Constitutional Court).
Finally, the Constitutional Court held that the exclusion of life partners from being able to become a foster family, i.e. be accommodated together as beneficiaries of foster care, was discriminatory and the Court concluded that „the competent authorities, conducting administrative and judicial proceedings and directly deciding on the rights and obligations of citizens, in particular cases, must interpret and apply every law, including the Foster Care Act, according to its legitimate purpose, and they must adopt decisions in accordance with the Constitution, treaties and other legal sources in force, among other things, in accordance with the legal views of the Constitutional Court expressed in this decision and order” (para. 29(3) of the Decision).
The case was presented in the media and it gained huge public interest, rising approvals, as well as atrocities.
The third example follows the previous story. The very same homosexual couple applied and went through the required procedure that was aimed to assess the eligibility of potential adopter/s to adopt a child. The division of the social welfare office (a family centre in Zagreb) allowed them to go through the required procedure. Hence, in the end, it refused to issue a certificate that would enable them to adopt the child if it was found eligible for adoption.
They complained and initiated an administrative procedure. In its decision of the Supreme Administrative Court in April 2022 ruled that homosexual life partners as a couple should have the possibility to undergo a pre-adoption procedure in front of the social welfare office. Afterward, they might be declared suitable as adoptive parents. Such a possibility was not enabled in the Family Act, but the Supreme Administrative Court has concluded that preventing homosexual couples from becoming adoptive parents should be considered as discrimination based on sexual orientation. In general, the High Administrative Court did not discuss the standard of the best interests of the child. How this aspect will be reflected in the birth registry conducted in regard to the current notion of parents, as the mother and father, remains to be seen.
In conclusion, it seems that the doctrine of separation of powers has changed a lot due to the courts’ freedom to change the very meaning and the aim of legal norms. This change has been supported by the need to interpret the law in the spirit of human rights.
It seems that policymakers sometimes leave this job to courts, giving up their political responsibility for the content and the consequences of the legislation.
The presenter exchanged short comments in the form of text messages from other colleagues who found the lecture interesting. They proposed future cooperation in the field of family protection. The lecture will be published as a scientific article in 2023.
