Bendro gyvenimo neįregistravus santuokos teisinio reglamentavimo problemos

Abstract

The Constitution of the Republic of Lithuania declares society’s attitude towards the family, which is under the care and protection of the State (Art. 38). This constitutional provision is the key principle in law drafting. Moreover, it helps to solve theoretical and practical problems, which appear in the process of the family and the State interaction, the individual and society interplay. This provision should be taken into consideration especially in legislating marriage and family relation acts. This article presents the institution of cohabitation, which is one of the novelties of the Third Civil Code Book, titled “Family Law”. Part 6 is called “Rights and Duties of Other Members of the Family”. The norms of Chapter 15 regulate mutual property relations between man and woman living together without having their marriage registered. Fast globalization processes, social, economical and political changes have influenced the appearance of man’s and woman’s cohabitation derivatives, which by many theorists are considered as family alternatives leading to deinstitutionalization of marriage and family relations. We cannot help appraising the situation that a number of cohabitants (factual marriages) have a tendency to grow. Consequently, the legislator cannot help reacting to such phenomena. In our opinion, provisions of “Family Law” of the Republic of Lithuania regulate the institution of cohabitation suggesting some contradictions. These norms do not only consolidate a new registration of marriage form, but also establish a new form of family, which is not included in the Constitution of the Republic of Lithuania. The sixth part of “Family Law” is designed not for the family members, but for the legalisation of relations of factual spouses. Therefore, the author proposes to modify Chapter 15 “Living Together of Persons not Legally Married (Cohabitation)” of Part 6 “Rights and Duties of Other Members of the Family” of the Third Book “Family Law” of the Civil Code of the Republic of Lithuania, to define it as factual marital relations and to establish the legal status of the members of factual marital relations and their children, which should be equal to the status of the children born in marriage. As the other way to eliminate deficiency the author proposes to improve the existing provisions.Nowadays there are various approaches to cohabitation. The spectrum ranges from overtly hostile attitudes to full assimilation of formal marriage This article draws attention to the institution of cohabitation in other foreign countries, especially Scandinavian, because the initial draft of this chapter of CC followed closely the Swedish Cohabitees Act.