17 May 2021
The dissemination event was held at the Institute for European Studies, Belgrade on 17 May 2012 starting at 12 h until 14h. Title of the event is: Family law Consequences of the Same- Sex Union and the format of the event was lecture using Zoom. The lecture is recorded and available on Skype: https://www.youtube.com/watch?v=Mzr_nYS6zuA
The main reason for choosing this theme is the recent Serbian Draft on same-sex union.
The Draft Law on same-sex union regulates two types of same-sex union: registered same-sex union and de facto same-sex, so the parallelism of concepts exists.
Registered same-sex union is defined as a union of family life of two same-sex person which is concluded by competent organ. Not registered (de facto) same sex union is defined as a union of family life of two sex persons, which is not concluded by competent organ. This union has legal effects, only if there are no impediments for its conclusion and if lasts for 3 years, Art 2, Art 66.
Same-Sex union is concluded by affirmative and uniform statements in order to realize the cohabitation given before the registrar, Art 8. Same-sex union is to be concluded before the registrar in a solemn manner, and in a room specially designated for this purpose. The registrar may, exceptionally, allow for a same-sex union to be concluded in another venue, if there are justified reasons for doing so. The future partners, two witnesses and the registrar are to be present at the conclusion of same-sex union. Any person having legal capacity may be a witness to conclusion of same sex union, Art 14.
A same-sex union is terminated by the death of a partner, proclaiming missing person to be dead, by annulment, or by cancellation (break), Art 18. A same-sex union can be cancelled in the court proceedings, or exceptionally by registrar (break by agreement), Art 26. Each partner has the right to court cancellation (break) of same-sex union by action or by agreement. If the relations are seriously and permanently disturbed or if the same-sex union cannot be realized, the termination is by an action. If it is on agreement, the agreement of the partners must include a written agreement on the division of community property. Art 27. It is stipulated in the Draft that exceptionally, a same-sex union can be cancelled by giving consensual statements of will to the registrar.
The legal effects of the same-sex union are very similar to legal effects of marriage. Personal effects are: same-sex partners consensually and jointly decide on all important matters for their life together, have right to protection of privacy of their family life and right to mutual co- operation, have a duty to help each other and to care and give help in the case of illness, Art 30. Upon concluding a same-sex union, partners may agree on their surnames.
Another family law effect concerns property rights. Partners might have separate and community property, identically to spouses and heterosexual partners in non-marital cohabitation. Art 38. The contract on property is available to same-sex partners, during or before conclusion of the same-sex union, Art 46.
The Draft Law stipulates rights and duties between same-sex partner and the child of the other partner. A partner in same-sex union has a duty to a child of the other parent, if a child does not have relatives who have a duty of or if they lack sufficient meansfor, duty to maintain a child of the other partner exists even if the union ceased by death, if the cohabitation existed until death. If same-sex union ceased by annulment or by cancellation, the partner’s duty to maintain a child of the other partner terminates, Art 36.
A partner in the same-sex union who is not a child’s parent has the right to make decisions on necessary and urgent acts in interest of the child, when there is a danger to the health and life of the child. Art. 61/5 FA. Another legal effect of same-sex union is domestic violence.
Same-sex partner in registered union has inheritance right in the same way as a spouse. Art 47. But, same-sex partner in de facto union does not have inheritance rights which is similar to the position of heterosexual partner in non-marital cohabitation.
In health law, the partner has the right to information about the illness and treatment of illness and to participate in decision making on the medical treatment of the partner who is ill. If the partner is incapable to give consent to medical treatment, the other partner has equal rights and duties as spouse, Art 32. If one of the partners are in hospital, the other partner has visitation rights in the same way as spouse, Art 33.
Partners in same-sex union have the same rights as spouses in criminal proceedings. The partner who is in jail, has a right to receive parcels from his/her partner and to visitation rights as spouse, Art 31.
Partners in same-sex union has equal status as spouses in tax law, pension law, labour law, acquiring nationality, health insurance law, social protection law, including child protection law, tort law etc, Art 48-55.
De facto same-sex union has the same effects on personal relations, children, and the property rights as registered same-sex union, Art 67. The effects on pension rights, social security, health insurance, labour law are the same as the effects of non-marital cohabitation of two persons of the opposite sex, Art 68.
Law on biomedically assisted fertilization 2017, stipulates different procedures available to the man and woman to help them to become parents. These procedures are available to the heterosexual couples, spouses and partners in non-marital cohabitation. Exceptionally, the right to infertility treatment by biomedically assisted fertilization procedure is entitled to an adult and legally capable woman living alone, Art 25. In practise it would be possible for the woman in the same-sex union to use bio-medical procedures, if she claims that she lives alone. This would be easy especially if the union is de facto one, as there is no registration and no evidence of existing union. Thus, even the Law on same-sex union does not include reproductive rights and availability of bio-medical technologies to same-sex partners, in practise this could happen. The Law on biomedical assisted fertilization does not regulate surrogate motherhood. That means that same-sex men do not have a possibility to become parents.
Serbian Draft might be classified in the group of laws which regulate registered same-sex union with legal effects which are very similar to legal effects of marriage. Entering and dissolution of same-sex union is similar to concluding marriage and to divorce, as well. This is when
comparing conditions for the conclusion of same-sex union and marriage, as well as comparing grounds for divorce and grounds for dissolution of same-sex union. In addition, the procedure for conclusion same-sex union and marriage and procedure for divorce and dissolution of same- sex union is very similar. It might be a better solution for Serbian contemporary situation, having in mind social circumstances and accepted views in the population, to start with regulation of the same-sex union as registered partnership, an institution which differs from marriage. In some countries jurisdiction for the registration and dissolution of registered partnership has court (France Du pacte civil de solidarité et du concubinage – PACS) which differs from concluding the marriage.
There were a lot of questions and suggestions, so it can be said that there was a considerable impact of the lecture.
Mr. Milan Lazović, researcher for the Institute for the European studies, has raised the question if the Draft Law on same-sex partners against the Serbian Constitution, especially as homosexual partners are considered as a family members in connection to family violence.
Mr. Dušan Ilić, constitutional lawyer, has asked if marriage and family has to be constitutional issue or maybe not because of the regulation of a same-sex union.
Professor dr Aleksandra Korać Graovac from Faculty of Law from Zagreb has commented the eventual possibility for same-sex partners to adopt a child in Croatia and is this possibility in the best interest of a child.
Professor dr. Miša Đurković, director of the Institute for the European studies made a comment that there was not a serious public debate on three Drafts: on same-sex union, on discrimination and on gender quality and talked about the case Komon v. Rumania at the EHCR.
Mr. Slobodan Zečević, researcher at the Institute for the European studies, talked about the value system in the particular society in connection with enacting laws with the comment that enacted laws or drafts laws are not always in accordance with the value system in Serbian society.
The conference was organised as part of Central European Professors’ Network 2021 coordinated by the Ferenc Mádl Institute of Comparative Law.
