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	STUDIA IURISPRUDENTIA - Issue no. 2 / 2005

	Article:	CHALLENGES OF THE NEW FAMILY ACT OF SERBIA ESPECIALLY IN THE FIELD OF ADOPTION. Authors: OLGA CVEJIC JANCIC.


	Abstract: This paper deals with the most important changes which have been made in the new Family Act of Serbia which was promulgated in February 2005 and which has come into effect on July 1st 2005. Special attention was paid to adoption in order to explain one very important institution - the protection of children without parents or parental care. In marital law, one of the changes was the elimination of obligation of mutual faithfulness between the spouses, then changes regarding the provisions on divorce. Causes for divorce have remained the same: breakdown of marital relations and divorce by mutual consent. In the latter case, the consent is not merely an agreement on the exercise of parental rights (which can now be realized as joint exercise – joint custody), but implies the division of joint property as well. Certain novelties have also been made by introducing mediation in family law proceedings in order to try to resolve marital problems and conflicts after divorce or annulment of marriage by alternative dispute resolution processes as alternatives to judicial or administrative proceedings. The new law has introduced marital contract as a completely new institution, then it has equalized non-marital and marital cohabitation and made some changes concerning the obligation of maintenance support. There is a new provision which determines the minimal amount of maintenance support by establishing that it is equal to the compensation given to a foster child, which is periodically determined by the Ministry for Family Protection. The maintenance creditor can choose whether the support will be determined as a fixed monthly rate or percentage-wise with respect to regular monthly income of the maintenance debtor. In case he or she opts for the latter, alimony support can be between 15 and 50%. Furthermore, in the field of paternity the general legal assumption of the previous law (like most contemporary laws) that the father of a child born in wedlock within the first 300 days following the end of marriage is considered to be the mother’s husband from the marriage that has ceased, is no longer present. The new provision is also abrogation of deadline for the child’s right to establish or contest his or her paternity. He or she could do that in any time in her or his life, without time limit. The provisions regarding conception with biomedical assistance contain a completely new provision by which non-marital partner of the mother (besides marital one) is presumed to be the father of the child and if he has given a written consent regarding the conception with biomedical assistance, this presumption is indisputable. Adoption is a way to establish a parental relationship with children without parental care. The only type of adoption is full i.e. unbreakable (permanent) adoption, whereas simple i.e. breakable adoption is abolished. For validity of adoption the child has to be younger than 18 years of age, whereas the adopters have to be a married couple or cohabiting heterosexual couples (with certain exceptions). Homosexual partners do not have any rights in our law. The adopted person in respect of the adopters and their relatives has the same rights and obligations as a child born in a lawful wedlock in respect of his father and mother and their relatives, except for the name. That is to say that the name of the adopted child could be changed, but it is not obligatory. Moreover, the adopter and the adopted child could not get married. Furthermore, the adopted child is equal in rights to inherit the adopters as the child born in a lawful wedlock. At the age of 15 the adopted child gets the right to know who its parents are. The author then emphasizes new provisions on children’s rights, especially some new provisions on the exercise of children’s rights, in accordance with the European Convention, then new corpus of provisions on protection from family violence.




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