Non-married Cohabiting Couples and Their Constitutional

Author:Andra Olm
Position:Adviser to the Legislative Policy Department Ministry of Justice of Estonia
Pages:104-111
 
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Andra Olm
Adviser to the Legislative Policy Department
Ministry of Justice of Estonia
Non-married Cohabiting
Couples and Their Constitutional
Right to Family Life
1. Introduction
The traditional model of the family, consisting of husband, wife, and children, has ideological roots that
extend far back through history and plays an important role in most societies.*1 However, it cannot be
claimed to be the only form of family life, not least because there are many other forms, among them non-
marital cohabitation, present in modern society.*2 The number of non-married cohabiting couples and the
number of children born in such relationships are both rising steadily in Europe.*3 There have been signi -
cant increases in non-marital cohabitation in recent decades in Estonia too*4, and relative to other Euro-
pean countries, Estonia has one of the highest numbers of children born outside marriage.*5 These changes
in family structure, along with favourable attitudes toward new forms of family, have brought with them an
expectation of family law that re ects these societal changes.
Legislation speci cally aimed at non-traditional forms of the family has been enacted in many jurisdic-
tions, but these vary considerably in their details,*6 often causing a lot of confusion from one jurisdiction to
the next and in translations. More than half of the European Union’s member states have adopted laws on
cohabitation.*7 The traditional approach of considering marriage to be the only of cially recognised personal
1 M. Ebejer, E. Mills. Focus: Family Law. 4th edition. Chatswood, N.S.W.: LexisNexis 2010, p. 1.
2 J.M. Scherpe. The legal status of cohabitants—requirements for legal recognition. – K. Boele-Woelki (ed.). Common Core
and Better Law in European Family Law. Antwerp; Oxford: Intersentia 2005, p. 283.
3 In Sweden, Denmark, France, and Slovenia, some 40–50% of all children are born outside marriage. Ibid.
4 According to the 2011 Population and Housing Census (PHC 2011), 34.5% of the population aged 15 and older lived with a legal
spouse and 15.6% lived in a de facto union. From the gures in the 2000 Population Census, the proportion of persons living
with a legal spouse fell by 5.4 percentage points and that of persons living in a de facto union increased by 4.7 percentage points.
In 2011, of all cohabiting persons, 428 were cohabiting with a same-sex partner. See this press release of Statistics Estonia:
PHC 2011: Popularity of consensual union is growing. 24.4.2013. Available at http://www.stat.ee/65350&parent_id=39113
(most recently accessed on 1.6.2013).
5 Overall, 59% of children in Estonia were born out of wedlock (including to single mothers) in 2009. Only Iceland showed a
higher percentage for this (64%). See European Commission, Eurostat. Live births by mother’s age at last birthday and legal
marital status. Available at http://appsso.eurostat.ec.europa.eu/ (most recently accessed on 1.6.2013).
6 W.M. Schrama. General lessons for Europe based on a comparison of the legal status of non-marital cohabitants in the
Netherlands and Germany. – K. Boele-Woelki (ed.). Common Core and Better Law in European Family Law. Antwerp;
Oxford: Intersentia 2005, p. 280.
7 See Appendix 1 in I. Curry-Sumner. All’s Well That Ends Registered? The Substantive and Private International Law Aspects
of Non-marital Registered Relationships in Europe: A Comparison of the Laws of Belgium, France, The Netherlands,
Switzerland and the United Kingdom. Antwerp; Oxford: Intersentia 2005, pp. 537–541.
104 JURIDICA INTERNATIONAL XX/2013

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