PROBLEM OPSTANKA BRAKA NAKON PRAVNE PROMENE POLA JEDNOG OD SUPRUŽNIKA

Abstract

By its decision in case Goodwin v. United Kingdom (2002), The European Court of Human Rights has established positive obligation of states parties to find appropriate means of achieving legal recognition of one’s gender reassignment in the context of the right to protection of private life. Under the direct influence of the mentioned judgement, Constitutional Court of Serbia was deciding on constitutional complaint of a transsexual in 2012 and made the decision that administrative authorithies dealing with civil status registry have subject-matter jurisdiction to enter gender reassignment data in birth records. After, The Law on Civil Records was amended in 2018 enabling adoption of by-law act that esentially involves substantial requirements for legal recognition of preferred gender in birth records. Hence, it is possible for a transsexual to have his/her preferred gender legally recognized during the marriage. Since domestic law still does not allow same-sex marriages, the issue of such marriage survival may arise when both spouse accept legal gender reassignment deciding not to break up their marriage bond. The problem of marriage survival after legal gender reassignment in states that have enabled same-sex marriage is part of legal history. However, for legislations that insist on the heterosexual idea of marriage, these cases give rise to legal difficulties. The historical-legal and comparative-legal approach indicate that after the legal change of gender during the marriage, the values of marriage and the right to gender identity are viewed as opposites. In this regard, a transgender person is required to sacrifice marriage or to renounce his or her right to gender identity. However, the law of Serbia on this issue is, to put it mildly, indefinite. Thus, on the one hand, the Serbian Constitution supports the heterosexual view of marriage, while on the other hand it guarantees the freedom of divorce and the inviolability of human dignity. At the same time, the existing rules on the conditions for legal gender reassignment do not regulate the question of the fate of such a marriage. At the same time, within the framework of the domestic legal order, there is no direct legal means by which the mentioned same-sex marriage would end against the will of the spouses. Ultimately, there is a dilemma as to whether the preservation of the institution of marriage can be insisted on at the expense of the will of the spouses as individuals. According to domestic law, a legal change of gender in the birth records occurs on the basis of a constitutive administrative act of the municipal or city administration responsible for keeping the civil records. The mentioned administrative act determines the gender reassignment on the basis of the certificate of the appropriate health institution. The effect of gender reassignment is tied to the date of the decision of the administrative body and is valid for the future. Thus, a legal change of gender does not affect the parental relationship that may have been previously established between the person who legally changed the gender and the child. Therefore, imposing the termination of a marriage after a legal reassignment of gender of one of the spouses cannot be acceptable. However, as marital status is only one segment of the legal status of transgender persons, it is necessary to enact a special law that would regulate their legal status and eliminate problems that may arise in practice. In the case of a possible procedure for assessing constitutionality and legality, the decision of the Constitutional Court of Germany from 2008 should serve as a guide for the Constitutional Court of Serbia. According to this decision, the marriage would remain valid even after the legal change of gender of one of the spouse until the special legislation that would determine the manner of exercising the right to gender identity is adopted in cases when spouses do not want divorce.