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

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 signif‌i -

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 ref‌l ects these societal changes.

Legislation specif‌i 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 off‌i 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 f‌i 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.

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