In modern societies extramarital union is becoming more and more common and is one of the corner stones for founding a family.
The institution of extramarital union is not unknown to our legislation, i.e. extramarital union in our legislation is regulated by the Law on Family, which in Article 13 stipulates that extramarital union is a life union of a man and a woman that is not established in accordance with the provisions of this law (extramarital union) and which lasted at least one year, is equal to the marital union in terms of the right to mutual support and the property acquired during the duration of that union.
Although, beforementioned article apparently gives the impression that the extramarital union is completely equal to the married union, still in practice there is a difference in the rights of the married and extramarital partners.
Namely, in our legislation, the Law on Family provides protection for legal relationships arising from extramarital unions in the sphere of maintenance, the Law on Property and Other Real Rights provides protection for the acquisition of property, and the Law on Obligations provides protection in relation to of compensation for damages in case of death or severe disability of one of the non-marital partners, however, the right to health insurance, the right to a family pension and the right to inheritance remain outside the legal regulations, although the need to regulate these relationships by law is more than obvious which are evident between extramarital partners, but remain without the necessary protection.
Hence, the right to health insurance, the right to a family pension and the right to inheritance are rights exercised by married, but not extramarital, partners.
- The right to health insurance – With the Constitution of our country, the right of health care is
guaranteed for every citizen, but every citizen also has the right and duty to protect and improve his own health, as well as the health of others. The constitutional guarantee of this right, for every citizen, is still not fully supported in the Law on Health Insurance. Namely, on the basis of the compulsory health insurance of the insured, compulsory health insurance is also provided to the members of his family, if they are not insured according to another legal basis, and as family members, based on this law, only the spouse and children are considered born in marriage or out of wedlock, stepchildren, adopted children and dependent children. Partners in an extramarital union, regardless of whether they live with the insured in a joint family, according to the above-mentioned law, are not considered members of the insured’s family.
- The right to family pension – The problems in realizing the rights of extramarital partners also
exist in the realization of rights from the pension-disability insurance, or rather they are outside the pension system of the state, which means they have no possibility to realize such rights.
In the Law on Pension and Disability Insurance, family members can receive a family pension, which includes the spouse, children born in marriage or out of wedlock or adopted, stepchildren supported by the insured, grandchildren and other children without parents, whom the insured supported. This category also includes parents, that is, father, mother, stepfather and stepmother, as well as the adoptive father, who were supported by the insured. The attitude of the mentioned law towards the divorced spouse who has the right to a family pension, if the right to support has been determined by a court decision, is interesting.
However, such a right is not provided for the extramarital partner, if the extramarital partner also has the right for support, given the reality of such a possibility arising from the equalization of the extramarital with the marital union, precisely in terms of the right to mutual support, in accordance with the Law on family.
- The right of inheritance, according to the Law on Inheritance, is provided equality in
inheritance. Namely, “under the same conditions, citizens are equal in inheritance”. However, this equality is partial, because it applies only to persons who, according to the Law, can be named as heirs, and not to all citizens. According to the provisions of the Law on Inheritance, the circle of legal heirs is determined according to: kinship, marital relationship and living in a permanent union.
All possible legal heirs of the testator are divided into three lines of succession, so the heirs from the closer line of succession exclude the persons from the more distant line of succession from inheritance. The first line of inheritance includes all the children of the testator and his spouse. If the testator left no descendants, the persons from the second line of succession, namely the testator’s parents, appear as heirs. Along with them, his spouse, that is, brothers and sisters or their descendants, in case they are not the living parents of the testator or the parents of the descendants, enters this line of succession.
The third line of succession is reserved for grandparents, if the testator left no descendants, nor did they leave their own descendants, nor a spouse.
The circle of legal heirs, in addition to kinship and marriage, includes as heirs and persons who lived in a permanent union with the testator. Such persons are: the guardian and the breadwinner, the stepson and the shepherdess, the stepfather and the stepmother, the daughter-in-law, the father-in-law and the mother-in-law, the son-in-law, the father-in-law and the mother-in-law and persons who are blood relatives, who lived in a permanent union, provided that the testator did not leave a spouse and other heirs from the previous lines.
In the long line of legal heirs, however, no proper place is provided for the law of the inheritance of the extramarital spouse, regardless of the duration of the extramarital union, with which it is again discriminated in the area of inheritance law. What’s more, the Law on Inheritance itself states that in terms of inheritance, extramarital kinship is equated with marital kinship. However, in the lines of succession, the extramarital partner is not included as an heir.