The Family Law Act
This article provides an overview of the Family Law Act1 (FLA) which was passed by the Riigikogu, the parliament of Estonia, on 12 October 1992 and entered into force on 1 January 1995.
The FLA is one of five parts within the new Estonian Civil Code. Of the other four, the General Part of the Civil Code Act and Law of Property Act have been passed and have entered into force, the Succession Act was passed by the Riigikogu on 15 May 1996 and will enter into force on 1 January 1997, and the Law of Obligations Act is still in draft form.
Subsection 1 (1) of the FLA explicitly states that a lawful marriage can only be concluded between a man and a woman, which effectively bans homosexual marriages.
Despite the wide range of cohabital relationships in society today, in Estonia, marriage is only lawful if it is concluded in a vital statistics office and certified by a marriage contract signed by the parties in the presence of both parties. The Act sets out the following requirements for marriage:
1) mutual consent of the parties to marry;
2) the parties have attained 18 years of age. A minor between the ages of 15 and 18 may conclude a marriage contract with the written consent of his or her parents or guardian. A court may also grant permission for marriage on the petition of a parent or guardianship authority if the other parent or a guardian does not give consent for marriage;
3) the parties are not in an existing marriage;
4) the parties are not closely related by blood or related through a relationship which is deemed equal to a close relative by blood such as an adoptive parent and adoptive child or children adopted by the same adoptive parent; and
5) the parties have active legal capacity.
Under the former Marriage and Family Code (MFC) which entered into force on 1 January 1970, a marriage could only be concluded in the vital statistics office of the permanent or temporary residence of either party or their parents. This restriction has been lifted in the FLA, and the parties are free to marry in the vital statistics office of their choice. Upon marriage, each spouse must specify his or her surname. Currently, the parties can choose one of their surnames as a common surname, each person may retain his or her surname or the surname of one spouse may be added to the surname of the other spouse.
Proprietal relations between spouses are governed by legal norms based on certain principles which form a matrimonial regime and which can be either legal or conventional. The MFC established a legal regime by which property acquired during the marriage was deemed joint property while property belonging to either party before marriage or received as a gift or by succession was the separate property of the party. The MFC did not allow for any other matrimonial property regime, even by a matrimonial agreement. The Code allowed for spouses to perform all transactions with property permitted by law, including entry into contracts to wholly or partly divide joint property and regulation of possession and disposal of such property. However, at the same time, the MFC clearly stated that any agreement to change the legal regime with respect to property to be acquired during a marriage was void.
The legal regime has been continued in the FLA, however it now exists concurrently with a conventional regime. This is stated in general terms in § 7 of the FLA which provides that the proprietal rights of spouses are to be specified by law and by a matrimonial agreement if one is entered into. Consequently, spouses may now enter into a matrimonial agreement to determine mutual rights and obligations other than those provided by law. Pursuant to § 9, the spouses may agree what part of each spouse’s property will remain separate property and what part will be deemed joint property of the spouses. The agreement may also provide what property acquired or acquirable during the marriage will be joint property and what property will be separate property. These are the primary issues in marital proprietal relations. The agreement may in addition specify the manner in which joint property is possessed, used, disposed of and divided, and determine any mutual obligations for support during marriage or after termination of the marriage. The FLA does not provide an exhaustive definition of the content of an agreement but states that spouses may specify other mutual proprietal rights and obligations unless such specifications are contrary to law. The Act does, however, provide restrictions on the content of an agreement. For example, property received by either spouse as a gift or by succession on the condition that such property belongs to the person as separate property may not be deemed joint property of the spouses. Further, a divorced spouse cannot be deprived of the right to receive support on the bases provided for in the FLA, nor can the right to divide the joint property of the spouses upon termination of the marriage be waived.
Under the Act, a support obligation may arise between spouses, divorced spouses or persons whose marriage is declared null on the grounds that one spouse was married at the time of marriage or was forced against his or her will into marriage by fraud or coercion.
The basis for a support obligation between spouses and divorced spouses is provided for in the Act, although such obligation may also arise from a matrimonial agreement.
The Act provides three separate sets of circumstances under which the obligation to support a spouse can arise. The first set contains the following circumstances:
2) inability of a spouse to work (disabled person or pensioner);
3) a spouse’s need for material assistance; and
4) financial resources of the other spouse which allow the spouse to provide support.
The second and third sets differ only with respect to the second clause, or inability to work, which is substituted by pregnancy or caring for a child up to 3 years of age, respectively. In the latter case, the sex of the entitled spouse is irrelevant. What is essential is which parent actually cares for the child.
The bases for a support obligation between divorced spouses can be divided into two categories. Subsections 22 (1) and (2) of the FLA provide for the continuation of a support obligation which arises in the course of marriage. The other category pertains to a set of circumstances arising after divorce. These include:
2) inability to work (disabled person or pensioner) arising within three years after divorce;
3) need for material assistance;
4) financial resources of the obligated spouse which allow for the spouse to provide support; and
5) a marriage lasting a minimum of 25 years.
A court may release a spouse from a support obligation or restrict the obligation to a specified term:
1) if the behaviour of the spouse in need during the marriage was immoral;
2) if the marriage lasted a short time; or
3) on other grounds deemed compelling by the court.
A marriage terminates upon the death of a spouse, a court order declaring a spouse to be deceased or divorce. The FLA allows for divorce either in a vital statistics office or a court. If spouses disagree on divorce of the marriage, division of joint property, custody of a child, support payments to a child or spouse, the divorce is performed in a court. If no such disagreements exist, the divorce is performed in a vital statistics office.
Divorce in a vital statistics office is performed on the agreement of the spouses upon a joint written petition which the spouses submit in person. The divorce is performed no earlier than one month and no later than three months after the petition is filed. Divorce can also be performed in a vital statistics office on the petition of one spouse if the other spouse has been declared missing or has been divested of active legal capacity. The MFC also allowed for divorce in a court or vital statistics office, however marriages involving minor children could not be divorced in a vital statistics office and as a result, a court had to resolve such uncontested divorce cases. The existence of minor children does not preclude divorce of a marriage in a vital statistics office if the spouses do not contest custody, distribution of joint property or support payments.
These changes in the law have resulted in a marked change in the ratio of divorces performed in vital statistics offices and courts. Between 1990 and 1994, 82 per cent of divorces were performed by the courts, while only 18 per cent in vital statistics offices. In 1995, after entry into force of the FLA, divorces performed by courts and vital statistics offices reversed dramatically to 29 per cent and 71 per cent, respectively.
Under the FLA, a marriage is terminated upon signature of a divorce decree in a vital statistics office or upon entry into force of the court order for a divorce performed in court. Consequently, there are currently two sets of documents in Estonia valid as proof of termination of a marriage, the divorce decree and certificate issued by a vital statistics office and a court order.
A marriage may be declared null on the basis of a violation of the conditions for marriage, or in the case of a fictitious marriage or where consent to marry was obtained against the will of one party by fraud or coercion (subsection 33 (1)). A court may refuse to annul a marriage if the circumstances serving as the basis for annulment cease to exist. A marriage is annulled from its inception and consequently a person whose marriage is annulled has no rights or obligations arising from marriage. If a marriage is annulled, the provisions concerning common ownership apply to property acquired by the parties jointly during the annulled marriage. If, however, a marriage is annulled on the basis that one spouse was in an existing marriage or obtained consent from the other spouse to marry by fraud or coercion, the court may require support payments from such spouse under the provisions concerning obligation to support a spouse, and, upon a petition from the entitled spouse, may divide property acquired as joint property in the course of the marriage pursuant to the provisions concerning division of joint property. Children born of an annulled marriage have the same rights and obligations as children born of a valid marriage.
One of the most important amendments to the FLA are the new provisions regarding the bases for creation of a legal relationship between a father and a child. The objective of these provisions is to provide greater legal protection to children born out of wedlock.
According to the Estonian Statistical Office, the number of children born out of wedlock is high. They accounted for 38.3 per cent of all births in 1993 and 40.9 per cent in 1994. Paternity was established for only two-thirds of these cases. Hence, in 1993, 12.5 per cent and in 1994, 13.4 per cent of children born did not have their paternity established. It is noteworthy that paternity was established by a court in only 0.31 per cent of cases involving children born out of wedlock in 1993 and in 0.34 per cent of cases in 1994. These figures are similar to figures for previous years.
The low number of paternity cases is easily explained. Under subsection 58 (2) of the MFC, one of four circumstances had to be present in order to establish paternity. The mother and the defendant had to have been in a cohabital relationship before the birth of the child, they had to raise the child together, support the child jointly or the defendant had to have unofficially recognised the child as his own. These restrictive circumstances relied on the good will of the defendant and thus there was little chance that paternity could be established in a court proceeding.
Under the FLA, paternity as a fact is henceforth the only requirement for creation of a legal relationship between a father and a child. Under the implementing provisions, this provision also has retroactive force. Under subsection 135 (1) paternity will be established pursuant to § 42 after entry into force of the Act also with respect to children born or conceived prior to the entry into force of the Act. As implementing provisions as a rule provide the means for transition from a previous Act to a new, the retroactive force of a new Act may only have effect within the terms valid in the previous Act. The provisions of the former Act concerning bases for creation of a legal relationship between parents and children entered into force on 1 October 1968. Consequently, paternity can be established retroactively only for children born out of wedlock after 1 October 1968. Pursuant to subsection 42 (1) of the FLA, paternity of an adult can only be established at the request of the adult. It should be noted that modern genetic testing almost excludes error in establishing paternity. For example, genetic testing has proved that a set of fraternal twins had different fathers. Genetic testing is conducted at the Institute of Molecular and Cell Biology at the University of Tartu and in several other research and testing facilities in Estonia.
The new criterion for paternity not only equalises the status of children born in and out of a lawful marriage, but also has important implications for equalising the rights of men and women. The new provisions for paternity will surely affect society’s values, particularly for men in their sense of responsibility and their attitudes towards women, children and the family. The changes embodied in the FLA reflect changes in attitudes and behaviour in society with respect to sexual relations and marriage.
A child who is conceived or born during the marriage of the parents is deemed to be the child of the man who is married to the child’s mother. The woman who gives birth to a child is entered on the birth certificate as the mother, and the man who is married to the woman is indicated as the father at the request of either party. Some amendments have been made in the new Act to the procedure for issue of a birth certificate in cases where the husband of the mother of a child conceived or born during marriage is not the father of the child. Under the former Act, the husband was not entered on the birth certificate as the father if the mother so requested, and the child was registered as illegitimate. Under subsection 39 (3) of the FLA, both spouses must apply for a husband not to be registered on a birth certificate as the father. Without such applications, the husband is indicated as the father. This entry may be contested in a court by the persons specified in subsection 44 (2). They are:
1) a person entered as the mother or father of the child on the birth certificate;
2) a person who demands recognition as a parent if another person is entered on the birth certificate as that parent; and
3) the guardian of a child, or the child if the child is an adult.
In recognition of the introduction of artificial insemination in Estonia, the FLA provides that a child is deemed the child of a husband who gives written consent for the artificial insemination of his wife. The Act does not regulate similar situations involving cohabiting partners. Neither spouse who gives written consent for artificial insemination has the right to contest the entry regarding the father of the child on the birth certificate.
As previously, the FLA provides that paternity is established voluntarily with respect to a minor illegitimate child on the joint application of the parents submitted to a vital statistics office either during pregnancy or after the birth of the child (subsection 41(1)). Paternity is established on the basis of an application from the father if:
1) the mother of the child is deceased;
2) the mother of the child has been declared missing or has been divested of active legal capacity;
3) the mother of the child cannot be located; or
4) the mother has been deprived of parental rights (subsection 41 (4)).
If the establishment of paternity of an illegitimate child is not voluntary, paternity may be established by a court.
The limitation period for a claim to contest an entry made regarding a parent on a birth certificate expires one year from the date the person becomes aware or should have become aware of the incorrect entry.
The FLA proceeds from the presumption that parents have equal rights and obligations with respect to raising a child. The Act also emphasises that parents have a preferential right before all others to raise their children themselves. This absolute right to rear a child is protected by law by providing every parent the right to claim his or her child from any person who has custody of the child without legal basis (§ 50). Subsection 50 (4) provides that a parent may not exercise his or her rights contrary to the interests of the child. Subsection 50 (3) provides that a parent does not have the right to regain custody of a child from a third person if this is contrary to the interests of the child.
Section 53 regulates removal of a child from the custody of a parent without deprivation of parental rights if the child is endangered by staying with the parent. Section 54 sets out the bases for deprivation of parental rights. A court may deprive a person of parental rights if the parent:
1) does not perform his or her obligation to raise and care for the child due to abuse of alcohol, narcotics or other drugs or other reasons which the court does not deem to be justified;
2) abuses his or her parental rights;
3) subjects the child to cruel treatment; or
4) otherwise influences the child in a harmful way;
5) does not contribute to raising the child for one year without good reason.
The Act also provides for the consequences of deprivation of parental rights and the bases and procedure for restoration of parental rights, among other issues.
Provisions regulating support obligations between family members play an important role in the FLA. Three types of legal support relations may arise between parents and children:
1) support of a minor child;
2) support of an adult child; and
3) support of a parent.
A parent is obligated to support a child up to the age of 18 years. Parents are also obligated to support adult children in need who are unable to work and children who are students in a basic school, gymnasium or trade school and continue their education after becoming adults. An adult child is obligated to support a parent in need who is unable to work.
Support payments to children are specified as a monthly payment based on the financial resources of the parents and the child’s need. A monthly support payment must be no less than one quarter of the minimum monthly wage established by the Government of the Republic, per child. Support payments to a parent are set by a court as a monthly payment based on the financial resources of the parent and the adult child and on the parent’s need. The Act also provides the bases for an obligation to support other family members including parents, grandparents, adult and minor siblings, step-parents, step-children, adoptive parents and adoptive children.
Under the FLA, adoption may be performed by a legal process by which the adoptive child acquires the rights of a child of the adoptive parent. These rights include legal relations with the adoptive parent and relatives. Nevertheless, if a man adopts a child with a mother who remains the child’s mother, or if a woman adopts a child who has a father who remains the child’s father, the rights and obligations between the child and such parent are retained. This situation may arise where one spouse adopts the child of the other spouse. Such cases account for two-thirds of all adoptions in Estonia. The majority of adoptive parents are step-fathers since the majority of children remain with the mother after divorce.
Compared to the MFC, the FLA has added numerous provisions governing the conditions and procedures for adoption which primarily affect the adoptive parent.
Under the MFC, adults of either sex who were capable of raising and supporting a child could be adoptive parents. The MFC did not preclude adoption of a child by two persons of different sexes who were not married to one another. Adoption of a child by two persons of the same sex was not directly prohibited, however two fathers or two mothers as adoptive parents would have been unnatural. Neither of these scenarios is possible under the FLA which provides that a child may only be adopted by two persons who are married to one another.
Where the MFC required an adoptive parent to be an adult, the FLA establishes a minimum age of 25 years for an adoptive parent. This limit may be reduced by a court. The primary condition for adoption is that the adoption must be in the interests of the child. The consent of the child’s parents who have not been deprived of parental rights is also required for adoption. A married person may only adopt with the consent of his or her spouse. Under the MFC, permission of the administration of a state child care institution was required for adoption of a child being raised in such facility. This condition has been abolished in the FLA, but has been substituted with the requirement for consent of the child’s guardian. Pursuant to subsection 95 (5) of the FLA, a guardianship agency fulfils the tasks of a guardian until a guardian is appointed. Thus, an agency also provides consent for adoption.
Under the new Act, adoption is no longer decided by a guardianship agency, but by a court. A guardianship agency continues to gather information necessary for the adoption decision and makes preparations for the adoption. Section 85 provides that the adoptive child is given the surname of the adoptive parent at the request of the adoptive parent, and that the given name of the child may be changed. However, the consent of an adoptive child who is at least 7 years old is required to change his or her given name or surname. Under the MFC, it was possible, at the request of the adoptive parents, to enter the adoptive parents as the parents of the child on the child’s birth certificate. Consent of a child of 10 years of age or older was required. Section 84 of the FLA provides that an adoptive parent is entered as the parent on the child’s birth certificate. The new Act no longer contains a provision similar to § 127 of the MFC under which a child who had the right to receive support for loss of a provider retained this right even after adoption. This provision is however contained in § 16 of the State Support Payments Act.2
The MFC allowed for an adoption to be declared void or be cancelled. An adoption could be declared void upon violation of the conditions for adoption or in the case of a fictitious adoption. The FLA has not amended these provisions.
The MFC established two types of bases for cancellation of adoption. Bases for cancellation of adoption were provided for in subsection 130 (1) and were similar to the bases for deprivation of parental rights provided for in § 74 of the same Act. A completely different basis for cancellation of adoption, categorised as gross mental underdevelopment, was provided for in subsection 130 (2). Cancellation of adoption was deemed necessary both in cases where the interests of the child so required but also in cases where the objective of adoption, that is to raise the child in the adoptive parent’s family, was not being achieved due to the fact that the child had for example returned to his or her parents or to the person who raised the child before adoption. In brief, these were the bases for declaring a factual termination of adoption. Cancellation of adoption after the adoptive child became an adult was a similar basis which was added later in subsection 130 (3) of the MFC.
The FLA adopted the bases for cancellation of adoption established in subsection 131 (1) of the MFC and, based on their content, has labelled them bases for deprivation of the parental rights of an adoptive parent. It is questionable whether it was correct to opt not to provide the bases for declaring a factual termination of adoption. These would have also included the basis specified in § 89 of the MFC, since this does not constitute a violation of the conditions for adoption.
Guardianship and curatorship are means by which the state cares for persons who are unable to independently exercise their rights or perform their duties. Such persons include orphans and other minors who have been left without parental care under other circumstances and adults who have been divested of active legal capacity or have only limited active legal capacity.
The MFC differentiated between guardianship and curatorship based on the difference in legal capacity. Persons who had been divested of active legal capacity and minors up to the age of 15 years were placed under guardianship, while minors with limited active legal capacity between the ages of 15 and 18 years and other persons with limited active legal capacity were placed under curatorship. These criteria for differentiation between guardianship and curatorship no longer exist. Persons who do not have active legal capacity or have limited active legal capacity are placed under guardianship. Only adults with active legal capacity who are unable to independently exercise their rights or perform their duties due to a mental or physical disability are placed under curatorship.
Unlike under the former system of administration, a person is now placed under guardianship by a court. Documents necessary for the establishment of guardianship are compiled and prepared by guardianship agencies, which are the county, city and rural municipality governments. Curatorship is established and terminated by a guardianship agency.
Under the FLA, guardianship agencies are assigned a wide variety of tasks. For example, they submit petitions to a court to grant a minor the right to marry (§ 3), submit petitions for establishment of paternity (§ 42), decide on the given name of a child if the parents disagree with respect to the child’s given name (§ 46), decide on the procedures for relations with the child in the case of dispute between the parents (§ 52), submit petitions for deprivation of parental rights (§ 54), and submit petitions for the awarding of child support payments (§ 61). On the order of a court, guardianship agencies must also compile and prepare information for a decision on adoption (§ 76) or establishment of guardianship (§ 93). Guardianship agencies also give consent to a guardian to perform transactions with the property of a ward (§ 99).
1 Riigi Teataja 1994, 75, 1326; 1996, 40, 73; 49, 953.
2 Riigi Teataja I 1993, 15, 256.