engleski

Origin of a child between tradition and reform: legal presumptions in Croatian family law

The recent Croatian legislative intervention regarding the legal presumptions regulating the right of the child to know his or her origin showed once again the constant tension in law between the tradition and the reform. Both the tradition and the reform have their advantages and it is considered the wisdom of the legislator to strike a balance between them. Traditional postulates are important and have been verified by experience for centuries. Reform on the other hand offers a new possibility of improving the legal system, which is by no means an unalterable one. The legislator therefore has to achieve an equilibrium, which shall contribute to the goals of a certain branch of law. The basic purpose of family law, in short, is strengthening the family, as acknowledged by numerous global and regional international treaties, fundamental for family law. Unfortunately, the achievement of this goal has been seriously questioned in the recent legislative intervention. Reflecting upon the protection of the right of the child to know his or her origin in the light of the changes of basic presumptions, the question arises as to what should be done in near legislative future. There are three plausible answers to this question. Firstly, the presumption of maternity should be stipulated as a praesumptio iuris et de iure, following the Roman principle mater in iure semper certa est. It would correspond to the majority of cases. It is also self-evident and should be defined as a rule. The fact that the progress in other areas allows for medically assisted procreation does not imply that the basic presumption should be a rebuttable one, but only reminds us of the fact that for such, rather rare, cases a special provision should stipulate a praesumptio iuris tantum. It would also serve the basic legal logic of presumptions themselves, which are intended to cover the majority of cases, in order to make legal actions foreseeable, logical and stable. It is therefore challenging from the standpoint of legal and life logic that the presumption for majority of the cases is a praesumptio iuris and the presumption regulating legal status in rather rare cases is a praesumptio iuris et de iure. Therefore, a reverse change is needed. Secondly, it would be better if the legislator would reintroduce the possibility of acknowledging maternity. Although rarely used in practice, this mechanism significantly simplified and facilitated the establishing of maternity and hence contributed to the implementation of principles of protection of legal safety and of equality of sexes. Thirdly, as regards the possibility of acknowledging the extramarital paternity to a child born in wedlock, it should be abolished. The life challenges and the complexity of legal relationships arising from this sensitive situation are self-explanatory. However, the situation of two legal bases for establishing paternity – the praesumptio iuris of marital paternity and the acknowledgement of extramarital paternity is logically and legally questionable. By acceptance and implementation of the afore analysed changes, the legislator would bring the pendulum back to where it belongs – to the traditional values, confirmed by centuries of legal experience and expertise. The idea of a reform is sometimes a challenging one, but the legal system should settle its priorities and remain with the legal solutions that have proven to be adequate and in line with the standards of legal mastery.

Origin of a child, legal presumptions, Croatian family law

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