Legal protection of factual relationship: is marriage necessary to create a family?

• Author: Muharem Faiku - Shanoela Berisha
• Position: University of Prizren 'Ukshin Hoti'
• Pages: 11-17

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l.

5

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o

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3

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ovember, 201

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SSN 2410-391

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cces online at www.ii

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ccl.or

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11

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cademic Journal o

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Business,

A

dministration, Law and Social Sciences

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PCCL Publishin

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, Graz-

A

ustria

L

egal protection of factual relationship: is marriage necessar

y

to create a

f

amil

y

?

A

ss

o

c. Pr

o

f. Dr. M

u

h

a

r

e

m F

ai

k

u

U

niversity o

f

Prizren “

U

kshin Hoti

”

Ph

D. S

ha

n

oela

B

e

r

i

s

ha

U

niversity o

f

Prizren “

U

kshin Hoti

”

Ab

str

a

ct

I

n Kosovo, the number o

f

people who choose out-o

f

-marriage relationships as an alternative

way o

f

f

amily-making is increasing. But, there are also many couples who have a traditional or

religious ceremony without

f‌i

nalizing their relationship through

f

ormal civil marriage. Today,

cohabitation has almost the same legal protection as marriage has, hence it is an option without

m

any obligations and

f

ormalities, but it is adequately protected. There

f

ore, this research will

e

xplain the cases in which out-o

f

-marriage relationship has legal e



ects. Which are the content

a

nd the main elements o

f

f

actual relationship? Furthermore, special a ention was given to the

comparison o

f

cohabitation and marriage,

f‌i

nding their similarities and di



erences. Finally,

we have also presented the legal ways o

f

ending the

f

actual relationship.

K

e

y

wor

d

s

:

out-o

f

-marriage relationship, marriage, institution, dissolution o

f

the

f

actual

re

l

ations

h

ip

.

I

ntr

odu

ct

io

n

Social-economic changes, declining o

f

religion im

p

act, increasing levels o

f

education,

a

nd economic inde

p

endence o

f

women are the main

f

actors that in

f‌l

uenced

y

oung

cou

p

les to choose cohabitation instead o

f

the traditional marriage.

I

n Kosovo’s societ

y

,

b

ecause o

f

the lack o

f

law tradition, there are man

y

cases where the cou

p

les had a

t

raditional ceremon

y

, but the

y

did not register it o



ciall

y

as a civil marriage. Hence,

t

he regulation and recognition o

f

the

f

actual relationshi

p

is a legal necessit

y

. This

i

nstitute has s

p

ecial a ention not onl

y

in regulating the relationshi

p

o

f

the

p

artners

b

ut also in the necessar

y

p

rotection o

f

children born in this union.

F

amil

y

Law o

f

Kosovo regulates the

f

actual relationshi

p

stating that “

A

f

actual

r

elationshi

p

(out-o

f

-marriage relationshi

p

) is the

f

actual relationshi

p

between the

h

usband and the wi

f

e who live in as a cou

p

le, characterized b

y

a joint li

f

e that

r

e

p

resents a character o

f

stabilit

y

and continuation.”

1

A

s we notice, in Kosovo we use

the term

f

actual relationshi

p

or out-o

f

-marriage relationshi

p

.

O

n the other side, in

A

lbania, the

y

use the term cohabitation with a similar de

f‌i

nition “Cohabitation is the

f

actual union between the husband and the wi

f

e who live in as a cou

p

le, characterized

by

a joint li

f

e that re

p

resents a character o

f

stabilit

y

and continuation”.

2

E

ven though the marriage union was the acce

p

ted

f

orm, the institute o

f

out-o

f-



1

Kosovo Famil

y

Law No. 2004

/

32, Article 39

p

aragra

p

h 1

.



2

Famil

y

Code of the Re

p

ublic of

A

lbania, article 163

.