PROBLEM OPSTANKA BRAKA NAKON PRAVNE PROMENE POLA JEDNOG OD SUPRUŽNIKA

2021 ◽  
pp. 423-435
Author(s):  
Veljko Vlašković ◽  
Keyword(s):  
Gender Identity ◽  
Legal Status ◽  
Constitutional Court ◽  
Legal Change ◽  
Same Sex ◽  
Gender Reassignment ◽  
The Will ◽  
Birth Records ◽  
The Right ◽  
Domestic Law

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.

An Argument for the Continued Validity of Woman-to-Woman Marriages in Post-2010 Kenya

2019 ◽  
Vol 63 (3) ◽  
pp. 303-328
Author(s):  
Monicah Kareithi ◽  
Frans Viljoen
Keyword(s):  
Legal Status ◽  
Historical Context ◽  
Cultural Practice ◽  
Same Sex ◽  
Opposite Sex ◽  
The Right

AbstractWoman-to-woman marriage is a form of customary marriage between two women, predominantly found in Africa. These customary marriages have been and to some extent still are conducted by various communities across Africa, including in Kenya. Communities such as the Kamba, Kisii, Nandi, Kikuyu and Kuria practise woman-to-woman marriages for a variety of reasons. The legal status of woman-to-woman marriages in Kenya is uncertain due to the provisions of article 45(2) of Kenya's Constitution of 2010 and section 3(1) of the Marriage Act of 2014, which stipulate that adults only have the right to marry persons of the opposite sex. However, a holistic and purposive reading of the constitution, taking into consideration its recognition of culture and the protection of children as important values in Kenyan society, and considering the historical context within which the provisions concerning same-sex marriages were included, leads to the conclusion that these provisions were not intended to proscribe the cultural practice of woman-to-woman marriage in Kenya. The constitutional validity of woman-to-woman marriage opens the door to a more expansive and fluid understanding of “family” in Kenya.

scholarly journals Beyond the Binary: Towards a Third Sex Category in Germany?

2018 ◽  
Vol 19 (3) ◽  
pp. 627-648 ◽  
Author(s):  
Peter Dunne ◽  
Jule Mulder
Keyword(s):  
Gender Identity ◽  
Case Law ◽  
Case Note ◽  
Constitutional Court ◽  
Legal Recognition ◽  
The Future ◽  
German Constitutional Court ◽  
Progressive Potential ◽  
Domestic Law

This Case Note discusses the recent judgment of the German Constitutional Court (1 BvR 2019/16) requiring either the legal recognition of sex categories beyond male or female, or the aboltion of sex registration requirements. The Note considers the Court's decision within the broader constitutional case law on gender identity, and explores both the progressive potential, and the future—perhaps unforeseen—consequences, of the ruling. The Case Note proceeds in three sections. Section A introduces the facts of the constitutional challenge, and sets out both the submissions of the complainant, as well as the reasoning of the Constitutional Court. In Section B, the Case Note explores the domestic law novelty of the decision, placing particular emphasis on the application of a constitutional equality framework to persons who experience intersex variance. Finally, in Section C, the Case Note contextualizes the judgment, situating the reasoning of the Constitutional Court within wider movements for transgender—otherwise known as trans—and intersex rights.

scholarly journals INTESTATE SUCCESSION AND THE SURVIVOR OF AN UNFORMALISED SAME-SEX CONJUGAL RELATIONSHIP: Laubscher No v Duplan 2017 (2) SA 264 (CC)

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Michael Cameron Wood-Bodley
Keyword(s):  
Constitutional Court ◽  
Same Sex ◽  
Same Sex Couples ◽  
Lesbian Relationship ◽  
Substantive Equality ◽  
Civil Union ◽  
Opposite Sex ◽  
Domestic Partnerships ◽  
The Right

When a person dies intestate his or her heirs are determined by the provisions of section 1(1) and (2) of the Intestate Succession Act 81 of 1987. Included amongst the heirs is the deceased’s surviving spouse, who either takes the entire estate or shares it with the deceased’s descendants (if any). Historically, the reference to “spouse” in the Act was taken to mean a person to whom the deceased was married in terms of the Marriage Act 25 of 1961. Accordingly, persons who were married to the deceased merely by religious rites and persons with whom the deceased was in a long-term conjugal relationship that was unformalised by marriage were excluded.The advent of constitutional democracy in South Africa resulted in a number of challenges to this status quo through reliance on the equality clause of the Bill of Rights. As a result of these challenges it has now been recognised that the survivor of a Hindu marriage, a monogamous Muslim marriage, and a polygynous Muslim marriage all have the right to inherit on intestacy as a “spouse”. Furthermore, in a groundbreaking decision in Gory v Kolver NO (Starke and others intervening) (2007 (4) SA 97 (CC)) the Constitutional Court recognised that the exclusion of the surviving partner of a gay or lesbian relationship from the right to inherit on intestacy was unconstitutional, and directed that the relevant sections of the Intestate Succession Act be amended by a reading-in of additional words to remedy the unconstitutionality. These words conferred the right to inherit on intestacy on the survivor of a monogamous permanent same-sex partnership in which the partners undertook reciprocal duties of support. At the time of writing no survivor of an unformalised opposite-sex relationship has challenged his or her exclusion from intestate succession. Possibly this reticence has been influenced by the decision in Volks NO v Robinson (2005 (5) BCLR 446 (CC)) (hereinafter “Volks”). In Volks the Constitutional Court held that it is not unconstitutional for the Maintenance of Surviving Spouses Act 27 of 1990 to distinguish between married and unmarried persons by giving the survivor of a marriage a claim for reasonable maintenance against the estate of the deceased spouse but not giving a similar claim to the survivor of a relationship in which the parties did not marry.Paleker has raised the question whether the Gory order “must still be applied in light of the Civil Union Act” but he comes to no firm conclusion, and states tentatively that “if marriage … is a precondition for inheriting, persons in same-sex unions who have not solemnised their relationship after the coming into force of the Civil Union Act … may be precluded from inheriting intestate from each other”. On the other hand De Waal and Schoeman-Malan are clearly of the view that the order in the Gory case still operates and – whilst regarding the current position as “anomalous” – they state that it “will probably continue until the Domestic Partnerships Bill [GN36 in GG 30663 of 2008-1-14] eventually does become law”. This has also been the interpretation accepted by the Master’s office acting on advice from the Senior State Law Advisor. The different treatment accorded same-sex couples by the continued retention of the benefits conferred by Gory has been defended on the grounds of substantive equality, since many practical obstacles still stand in the way of same-sex couples formalising their relationships.The question of the continued applicability of the reading-in order in Gory has now come before the Constitutional Court in Laubscher NO v Duplan (2017 (2) SA 264 (CC)) and it is this case which is the focus of this note.

scholarly journals Problems of inheritance in the anti-terrorist operation zone and in the occupied territories

2020 ◽  
pp. 14-18
Author(s):  
A.V. Goncharova ◽  
V.Yu. Chuikova
Keyword(s):  
Legal Status ◽  
Internally Displaced Persons ◽  
Internally Displaced ◽  
Law System ◽  
Special Procedure ◽  
Occupied Territories ◽  
The Will ◽  
The Right ◽  
Civil Law System ◽  
Legal Consequences

In this article, the authors reveal the issue of inheritance in the anti-terrorist operation zone and in the occupied territories. The institution of inheritance in the civil law system is one of the most important issues of research, its importance is due to the fact that the object of inheritance is the right of ownership. The issue of inheritance in the controlled territories remains relevant. This applies to both subjects and objects of inheritance rights. The article emphasizes that in accordance with the Declaration of State Sovereignty of Ukraine and the Constitution of Ukraine, the sovereignty of Ukraine extends to its entire territory, which within the internationally recognized state border is integral and inviolable. Indicated. That within the temporarily occupied territories there is a special procedure for ensuring the rights and freedoms of the civilian population, defined by the legislation of Ukraine. Individuals, regardless of their registration as internally displaced persons or their acquisition of special legal status, and legal entities retain the right of ownership, other real rights to property, including immovable property, including land plots temporarily occupied territories, if such property is acquired in accordance with the legislation of Ukraine. It is noted that the activities of armed groups and the occupation administration are illegal, and any act issued in connection with such activities is invalid and does not create any legal consequences. Emphasis is placed on the fact that the process of inheritance on Ukrainian lands is unchanged, namely, by will and by law. Inheritance by will occurs if the deceased person made a will before death and it is valid. In his absence there is an inheritance by law. Inheritance by law takes place in the following cases: absence of a will; invalidation of the will; the death of the heirs specified in the will before the opening of the inheritance or their refusal to accept the inheritance; the testator revoked a previously made will and left no new one; the will was declared invalid by a court; if the will does not cover all the property belonging to the testator.

scholarly journals Determining the responsibilities of inheritors

2021 ◽  
pp. 30-34
Author(s):  
A.V. Goncharova
Keyword(s):  
Property Rights ◽  
Legal Status ◽  
Time Of Death ◽  
The Will ◽  
The Subject ◽  
The Individual ◽  
The Right ◽  
Subjective Rights

Like subjective rights, responsibilities are part of the legal status of the individual. In the theory of state and law, duty is understood as a measure of proper conduct established by law. The peculiarity of the responsibilities of the heir is that at the time of acceptance of the inheritance, the heir passes not only the asset but also the liability. The heir who inherited the heir is liable for the debts of the testator. The exercise of the right to inherit primarily consists in the fact that the heir has the right to accept the inheritance or to refuse it. At the same time, it is not allowed to accept an inheritance with a condition or with any reservation. At the heart of the realization of the right to inherit - the will of the heir. The heir decides to accept the inheritance, to refuse it or not to accept the inheritance, based on their own interests. The freedom to renounce the inheritance is also manifested in the choice of the method of renunciation: either in favor of a particular heir, or without specifying such. At the time of death, the testator ceases to be the subject of any relationship, loses subjective rights and obligations. In turn, the heirs acquire property rights and subjective rights and obligations only with the passage of time. It is not possible to inherit only rights without fulfilling the obligations arising from the acceptance of the inheritance. It is also not possible to transfer the performance of one's duties to another person in order to be able to exercise one's inheritance right. To the heirs pass not only the rights of the testator, but also his responsibilities (translational succession), even if they were not specified in the will, because the inheritance is a universal succession. In universal succession, the whole set of rights and responsibilities of the testator's predecessor passes to the heir, except those that are closely related to the testator's personality. In this case, all components of this set belonging to the testator are transferred to a single act.

scholarly journals National Anti-Corruption Plan for 2021-2024: anti-corruption elements of the legal status of civil officers

2021 ◽  
pp. 166-175
Author(s):  
Ivan Vladimirovich Grigorev
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Civil Service ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Professional Activities ◽  
Legal Provisions ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right

The subject of this research is the normative sources that establish the rights, responsibilities and prohibitions in civil service, as well as the mechanisms for their implementation. The author dwells on the practical issues arising in the context of implementation of anti-corruption legislation associated with the right of the officers to exercise other paid activity, acquire and own securities, responsibility to notify about the possible colliding interests, limitation on the deed of gift due to their professional activities, providing data on income, expenses, property, and real obligations. Special attention is given to certain legal provisions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, and courts of general jurisdiction related to the peculiarities of the legal status of civil officers. The scientific novelty consists in comprehensive examination of the legal issues in regulation of anti-corruption elements of the legal status of civil officers. The main conclusions lies in determination of the gaps and conflicts of legal regulation of such relations. Critical assessment is given to the case law on the appeal of the prosecutors to transfer the property with no evidence that it has been acquired with legitimate income to the income of the Russian Federation. The author formulates recommendations for the improvement of the existing federal legislation on countering corruption in civil service.

scholarly journals Ekstensifikasi Subjectum Litis dalam Perselisihan Pemilu Legislatif dan Pemilihan Kepala Daerah

2016 ◽  
Vol 13 (4) ◽  
pp. 828
Author(s):  
Oly Viana Agustine
Keyword(s):  
Political Parties ◽  
Electoral System ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Legislative Elections ◽  
Factors Associated ◽  
Threshold Difference ◽  
Electoral Laws ◽  
The Will ◽  
The Right

Subjectum litis in The Legislative and Regional Head Election Disputes in Indonesia has been determined in a limited manner in The legislation and The regulation of the Constitutional Court. However along with the election, there is expansion and constriction of subjectum litis. The purpose of this study was to investigate the determinant factors that cause flexibility of subjectum litis in legislative and regional head election dispute. In addition, no previous studies that examine factors associated with the causes flexibility of subjectum litis in the legislative and the regional headselestion.The method used in this research is using qualitative methods with normative juridical approach by collecting data and information of the legislative and head regional election dispute advance in literature. The results obtained in this study that the shift in legislative elections expanded not only to political parties and individuals DPD that can be subjectum litis but also those of individual candidates of political parties can be subjectum litis in the legislative election disputes. The factor that caused it is the choice of electoral system is still used to 2014 electoral system. Meanwhile, the Regional Head election disputes in general as subjectum litis are that couple candidates for Governor and Vice Governor, Regent and Vice Regent and the Mayor and Deputy Mayor. But in its development, the narrowing of the only candidates who met the threshold difference of votes that can act as an applicant. Besides narrowing, there is also an extension where Consitutional court accommodate domestic election observers were registered and accredited by the KPU / KIP can act as subjectum litis and as the applicant would be candidates in the General Election of 2010. Factors that cause the narrowing and expansion in the elections of regional heads are the will of lawmakers and the limited authority of the Consitutional court as well as the presence of a single candidate who is not predictable by lawmakers in drafting electoral laws regional head. Whereas in 2010, the expansion of subjectum litis because the Court did extensive interpretation caused by serious violations of the right to be elected (rights to be a candidate). Suggestions for lawmakers tobe more thoroughly formulate norms by looking at the existing state of society so it can bring justice and legal certainty both for the expectant couple and society.

scholarly journals Foreigners and persons without citizenship as subjects of administrative judiciary

2021 ◽  
Vol 12 (4) ◽  
Author(s):  
Saadulaev A.I. ◽  
Keyword(s):  
Legal Status ◽  
Access To Justice ◽  
The Status ◽  
The Law ◽  
Constitutional Right ◽  
Administrative Proceedings ◽  
The Right ◽  
Judicial Protection ◽  
Domestic Law ◽  
Legal Entities

The right to go to court, including administrative, is one of the most important rights of citizens guaranteed by the Constitution and laws of Ukraine. In addition to the general constitutional right to judicial protection, in particular, Art. 7 of the Law of Ukraine «On the Judiciary and the Status of Judges» of 02.06.2016 № 1402-VIII, guarantees everyone the protection of his rights, freedoms and interests within a reasonable time by an independent, impartial and fair court established by law. Foreigners, stateless persons and foreign legal entities have the right to judicial protection in Ukraine on an equal footing with citizens and legal entities of Ukraine. Access to justice for every person is ensured in accordance with the Constitution of Ukraine and in the manner prescribed by the laws of Ukraine. However, along with the guaranteed right to apply to the court of foreigners, stateless persons (refugees, migrants, immigrants), such a category of subjects of administrative proceedings as apartheid remained outside the scope of domestic law. In order to eliminate the shortcomings of the legislative regulation of the legal status of apartheid in Ukraine, the author came to the conclusion that it is necessary to eliminate the existing shortcoming by amending the Law of Ukraine «On Legal Status of Foreigners and Stateless Persons» of 22.09.2011 № 3773-V. Keywords: legal status, foreigners, migrants, apartheid, justice, legislation

scholarly journals Separatist Creditors vs Preferred Creditors Rights in the Bankruptcy Case Based on the Decision of Constitutional Court of 2013

FIAT JUSTISIA ◽  
2019 ◽  
Vol 13 (3) ◽  
pp. 231
Author(s):  
Rilda Murniati ◽  
Desma Cahya Selvya
Keyword(s):  
Judicial Review ◽  
Legal Status ◽  
Labor Law ◽  
Bankruptcy Law ◽  
Constitutional Court ◽  
The Right ◽  
Case Based

Workers are preferred creditors whose payment must take precedence in the bankruptcy of the company. Problems in practice occur in the company's assets as collateral for debt to separatist creditors so that workers' rights are ruled out. Therefore, workers submit applications for judicial review of the Bankruptcy Law and Labor Law. This study is normative research using primary legal materials, namely laws and case study decisions that are analysed qualitatively. The results of the study and discussion determined that the Bankruptcy Law and the Labor Law regulate the same as the legal status of workers as preferred creditors who are entitled to prioritize payment in the distribution of bankrupt assets strengthened by the results of a judicial review in Decision of the Constitutional Court Number 67/PUU-XI/2013 The right of workers to wages is prioritized and calculated from collateral objects which are the rights of separatist creditors. For this reason, curators with authority must share the right of separatist creditors and preferred creditors with the principle of balance and justice so that all the assets of a bankrupt company can pay off the debts of its creditors.

scholarly journals PRINCIPLE OF NATURAL COURT: CURRENT PROBLEMS OF LEGAL UNDERSTANDING AND LAW ENFORCEMENT IN UKRAINE

2021 ◽  
pp. 70-74
Author(s):  
S. Prylutskyi ◽  
Keyword(s):  
Legal Status ◽  
Constitutional Court ◽  
Exclusive Jurisdiction ◽  
Basic Law ◽  
The Status ◽  
Separate System ◽  
Specialized Courts ◽  
The Subject ◽  
The Law ◽  
The Right

In 2016, a provision appeared in Article 125 of the Basic Law, which stipulated that higher specialized courts may operate in accordance with the law. Filling the content of this wording in, Article 31 of the Law "On the Judiciary and the Status of Judges" (2016) establishes that in the judicial system there are higher specialized courts as courts of first instance to consider certain categories of cases. This category of courts today includes the High Court of Intellectual Property and the High Anti-Corruption Court, activities of which are initiated by the relevant legislation. However, in political circles there was a discussion about the constitutionality of this court and, accordingly, the subject of the right to a constitutional petition questioned a number of provisions of the Law "On the Supreme Anti-Corruption Court" and appealed to the Constitutional Court of Ukraine to declare this law unconstitutional. In turn, the Constitutional Court of Ukraine initiated constitutional proceedings on this issue. Familiarization with the legal position of the subject of the constitutional petition indicates that the key issue of this constitutional proceeding concerns the presence of signs of a "special court" (within the meaning of Part 6 of Article 125 of the Constitution of Ukraine) in the mechanism of legislative regulation of the Supreme Anti-Corruption Court. In order to find an objective answer to the existing conflict, it is necessary to abstractly identify the main features of a "special" court. To solve such an applied problem, the author of the article turned to the theory and applied provisions of the principle of natural judgment, which was the subject of this study. As a result of the study, the author argues that by giving the Supreme Anti-Corruption Court exclusive jurisdiction over the system of general courts, the legislator has significantly deviated from the permissible limits of constitutional legality. The author singled out and grouped the key features of a special court, which included: 1) Separation of a judicial institution with a separate system of instances for consideration of certain categories of cases selected from the general array (special jurisdiction) or in respect to a separate category of persons. 2) The court, which is entrusted with special, different from other general courts, the purpose and objectives of the activity. 3) A court formed to expedite the resolution of certain categories of cases specific to a certain period; 4) A court in which judges have a special legal status (special tasks in the administration of justice; special professional qualifications (requirements, selection criteria); a special (extraordinary) procedure for the formation of the judiciary, etc. It is seen that the principle of natural judgment – is a fundamental constitutional and legal heritage of civilized humanity, which is designed to protect people, their rights and freedoms from the arbitrariness of the state, and from the use of courts as an instrument of terror and wrongful persecution.

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