Extramarital Union

As with marriage, the first and basic precondition for the existence of an extramarital union is the existence of a community of life, where the community of life should be real, complete, and implies meeting mutual emotional, sexual, ethical, cultural and other needs of extramarital partners. In other words, the community of life should be such that it can be likened to a marital relationship in everything.

Another important precondition is the absence of marital problems (obstacles to marriage). Therefore, just as it is not possible to conclude a marriage if any of the legally prescribed marital problems exist, also in the case of extramarital union it will not be considered that it exists if one or more of them are present.

Obstacles to marriage, and thus to the existence of an extramarital union, are prescribed by the Family Law of the RS and they relate to:

• existence of another marriage
• inability to reason
• blood relationship
• adoptive relationship
• in-laws relationship
• the existence of a guardianship relationship
• juvenile
• lack of free will

The third important condition for the existence of an extramarital union is the length of the union – a requirement that is contained in the very legal definition of the concept of extramarital union. Therefore, the Family Law of the RS itself states that an extramarital union is a more permanent union of life, which practically means that it must last long enough to easily establish a resemblance to marriage. In other words, it did not necessarily have to be long-lasting, but it is necessary that the partners intended to establish a community of life whose duration was not temporary or limited.

The key difference about the very origin of a marriage or extramarital union is related to the very way they occur. An extramarital union is formed with the simple consent of the will of the extramarital partners (with the fulfillment of the previously mentioned conditions), unlike a marriage that occurs in the manner prescribed by law before the competent authority. Therefore, there is no legally prescribed form for establishing an extramarital union.

It is impossible to prove an extramarital union with “paper”, since no legal procedure is required for its formation, which would end with the issuance of such a paper. Therefore, when the need to establish the existence of an extramarital union arises, the existence of an extramarital union is more difficult to prove than the existence of marriage. In other words, one proof is enough to prove the existence of marriage – a marriage certificate, but how to prove extramarital union since there is no such paper?

In our practice, the question of proving the existence of an extramarital union is in most cases raised when the surviving extramarital partner has a legal interest in determining the existence of an extramarital union, in order to exercise the right to a family pension.

In this regard, we note that the amendments to the Law on Pension and Disability Insurance (“Official Gazette of RS”, No. 34/2003, 64/2004 – USRS decision, 84/2004 – other law, 85/2005, 101 / 2005 – other law, 63/2006 – USRS decision, 5/2009, 107/2009, 101/2010, 93/2012, 62/2013, 108/2013, 75/2014, 142/2014, 73/2018, 46 / 2019 – decision US, 86/2019 and 62/2021) – hereinafter: LPDI, made a significant step towards equalizing the position of spouses and extramarital partners in terms of exercising the right to a family pension, by expanding the circle of persons (family members) who are entitled to it. Namely, Article 28 of the LPDI includes the extramarital partner of the deceased insured in the circle of family members of the deceased insured, from December 14, 2019, when the mentioned changes to the LPDI came into force, which was not the case until then.

More precisely, in accordance with the provision of Article 28, paragraph 2 of the LPDI, the right to a family pension may be exercised by the spouse and extramarital partner if the marriage or extramarital union lasted at least three years, or if he has a joint child with the deceased insured. In addition to the above conditions, it is necessary to meet special conditions that apply only to the deceased insured (for example, at least five years of insurance experience), and special conditions to be met by family members of the deceased insured.

Finally, the very existence of an extramarital union is determined in a non-litigious procedure (taking into account that the request to establish the existence of an extramarital union is a request to establish a fact).
A specific non-litigation procedure is initiated by submitting a proposal to the competent court, where the proposal itself should contain relevant data and evidence – data on the proposer, data on opponents of the proposer, data on deceased extramarital partner, data on duration of extramarital union, data on witnesses, and relevant evidence (like birth certificates, photographs, medical records, etc.).

What is encouraging is that such proceedings are shorter and simpler than most other court proceedings, and just initiating such proceedings for the parties is cheaper since the court fees are lower – the fee for submitting a proposal is 390,00 dinars, and you will be obliged to pay the same amount for the court decision fee, after the end of the procedure.

This non-litigation procedure ends witha court decision which determines the fact of the existence of an extramarital union, after which the procedure of exercising the rights from the pension and disability insurance continues.

Another common case when there is a need to prove existence of an extramarital union is the case of inclusion in the compulsory health insurance of persons who are not compulsorily insured under the Law on Health Insurance (“Official Gazette of RS”, No. 25/2019) – hereinafter: LHI. This will most often be necessary for foreign citizens who are not employed in the Republic of Serbia in terms of regulations governing the employment of foreigners in the Republic of Serbia, and therefore cannot exercise their rights under compulsory health insurance.

A person who is including in the compulsory health insurance acquires the status of an insured person on the day of submitting the request for inclusion in the compulsory health insurance to the branch of the Republic Health Insurance Fund – hereinafter: the Republic Fund in whose territory the person resides. In order for an extramarital partner to acquire the status of an insured person on this basis, it is necessary that, in addition to the above-mentioned request, he submits adequate proof of the existence of an extramarital union to the Republic Fund.

Adequate proof of the existence of an extramarital union in this case would be a certified statement of extramarital partners that there is a permanent union of life between them (at least two years before the date of application for insurance) and that there are no marital problems prescribed by law, as well as a certified statement of two witnesses that extramarital union is longer than two years.

The entire procedure described above ends with the issuance of a health insurance document – a health insurance card, by the main branch.

Another common case where the need to prove the existence of an extramarital union may arise is when one of the extramarital partners is serving a prison sentence.

In accordance with the provision of Article 90, paragraph 1 of the Law on Execution of Criminal Sanctions (“Official Gazette of RS”, No. 55/2014 and 35/2019), the convict has the right to visit his spouse, children, parents, adoptive parents and others relatives in the direct line and in the collateral line up to the fourth degree of blood and in-law kinship, as well as breadwinners, foster parents and guardians. As we can see, this provision does not list the extramarital partner as one of the family members, so at first glance it could be concluded that in this case the extramarital union is not equal to the marital one. However, paragraph 2 of this article leaves the possibility for the director of the institution to approve the visits of other persons to the convict.

This leads us to the conclusion that an extramarital partner could (and should) be granted a visit (and it would be extremely irrational if such a possibility did not exist), but depending on the specific institution for the execution of criminal sanctions and specific circumstances, this could lead to to the obligation to prove the capacity of the extramarital partner of the convicted person.

If such an obligation existed, our experience so far has shown that in such cases a statement by which the extramarital partner confirms that he lives with the convicted person in an extramarital union would be sufficient, and such a statement would have to be certified by a notary public.