Original scientific paper
PROVING OF COHABITATION – ANSWERS TO INCONSISTENT LEGISLATION AND JUDICIAL PRACTICE
Nataša Lucić
; Faculty of Law, Josip Juraj Strossmayer University of Osijek
Abstract
People living in cohabitation enjoy a very high level of legal protection within the Croatian legal system. Even before the family law reforms of 2015, cohabitants had in many aspects enjoyed equal rights and had had equal obligations – based not only on the family law but on other legislation as well. The recent family law reform has extended the legal protection of marriage to cohabitation as well. In other words, cohabitation differs from marriage only by the means of its formation and termination. The Croatian legislation stipulates that a marriage is started by a formal declaration of consent whereas cohabitation remains an informal legal category. The assumption that the effectiveness of the law is demonstrated by its application or judicial practice, raises a question of proving the existence and duration of cohabitation as a category equal to marriage. A life union is a legal standard, but the law does not specify the aspects of a life union that form its legal essence. Considering the effects of cohabitation in our legal system, the courts have a huge responsibility in determining whether a specific cohabitation bears the features of legal cohabitation recognized by the law, and also in determining when exactly the cohabitation started and ended. It is difficult to prove the existence and duration of cohabitation not only due to its informal form but also due to the high degree of inconsistency of various regulations. Different regulations specify different grounds for existence of legally valid cohabitation, as well as the ways of proving the existence of cohabitation. These legal discrepancies can lead to situations that the same people are assumed cohabitants according to one law whereas according to the other they are not. The same applies to the situation when people live in multiple cohabitations. Due to these factors a seemingly high level of legal protection that cohabitants enjoy, often creates legal insecurity in legal practice. The paper researches into the legal insecurity when proving the existence of cohabitation under the Croatian law and it explores possible solutions to the disputes created by inconsistent legal framework and judicial practice.
Keywords
cohabitation; proving; inconsistency; judicial practice
Hrčak ID:
155894
URI
Publication date:
30.12.2015.
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