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Statute on Promise of Marriage in Croatian Private International Law
Vilim Bouček
; Pravni fakultet Sveučilišta u Zagrebu, Hrvatska
Sažetak
Like many comparative legal systems, Croatian Private International Law does not contain a written conflict of law rule for the statute relating to the promise of marriage. As a result, it is necessary to fill the gap in the law and determine unwritten conflict of law rules for a statute relating to the promise of marriage based on the Article 2 of the Gender Equality Act. In addition to analogous application of regulations of the Croatian Act on Private International Law, the author proposes the application of certain modern legal solutions provided by the German, Austrian and Swiss Private International Law which, together with Croatian law, belong to the Central European group of European continental legal systems.
In the provisions of these legal systems, as well as in those of the earlier Croatian Private International Law (e.g. Eisner), conflict of law provisions of international family law on the marital statute are applied in analogy with prevailing views.
In keeping with this, the author suggests that substantive conditions for the promise of marriage should be considered on the basis of Article 32, paragraph 2 of the Gender Equality Act, i.e. for each of the fiancé(e)s according to his/her municipal law and his/her personal statute at the time of the promise of marriage.
Regarding the formal aspect, the author suggests that, in keeping with the Article 7 of the Gender Equality Act (the form of the legal transaction or legal action), promise of marriage should be valid if it is valid according to the law where the engagement is made or according to the municipal law of one of the fiancé(e)s.
Based on the Article 19 (contractual statute) and Article 37, paragraph 2 of the Gender Equality Act (applicable law for matrimonial property contract), the author suggests that the law chosen by the fiancé(e)s should be taken as applicable regarding the effects of the promise to marry, or legal consequences of the breach of promise. Subordinately, the applicable law should be the shared municipal law of the fiancé(e)s at the moment of the breach of promise based on the Article 36, paragraph 1 of the Gender Equality Act, and Article 36, paragraph 2 of the same Act supplemented by the modern trend to affirm the link between the ordinary residence and the latest shared ordinary residence of the fiancé(e)s which they have or used to have, if one of the fiancé(e)s still has it in a state, or based on the Article 18, paragraph 3 of the Austrian Act on Private International Law, Article 14, paragraph 1, clause 3 of the German Act on Private International Law, and Article 48, paragraph 2 of the Swiss Act on Private International Law, it should be the law which is closest to the fiancé(e)s. As the last subordinate law, the author suggests the law of the Republic of Croatia, based on the Article 36, paragraph 4 of the Law on Gender Equality.
In cases of offence claims related to the breach of promise to marry, the author believes that, in keeping with modern provisions of the Article 41, paragraph 2, clause 1 of the German EGBGB, Article 133, paragraph 3 of the Swiss Law on Private International Law and Article 4, Paragraph 3, sentence 2 of the Regulation Rome II, the promise to marry statute should be applied in keeping with the accession link in the regulations of the offence statute.
Ključne riječi
promise of marraiage; applicable law; Private International Law
Hrčak ID:
22005
URI
Datum izdavanja:
22.4.2008.
Posjeta: 2.795 *