New draft Family Law Act sent to ministries for approval
24. May 2005
Yesterday the Ministry of Justice sent the new draft Family Law Act to other ministries for approval. The act is aimed at modernising and clarifying the proprietary relations in the family and ensuring better protection of children and wards.
"Adoption of the new Family Law Act would mean a considerable step in the field of private law," noted Mr. Rein Lang, the Minister of Justice. "This would give
The draft Family Law Act comprises three large parts: marriage, legal relations arising from a blood relationship and the issues of guardianship.
The first part regulates entering into marriage and the legal relations arising therefrom such as marital property law, termination of marriage and maintenance of the spouse. As for marital property the draft act stipulates that the spouses remain the owners of the property acquired by them during marriage. In case of a divorce the property acquired during marriage is divided into two halves and thus the draft act does not change the size of the property left for either spouse in the event of a divorce compared with the current act.
The system suggested in the draft act gives the spouse the right to dispose of his or her property as the sole owner, but nevertheless limits this freedom with the obligation to take the interests of the other spouse and the children into account. The draft act establishes restrictions to entering into transactions with the property that is important for the family as well as the duty of mutual maintenance and support (art. 30 on restrictions to the use of property and art. 21 on the duty of maintenance of the family, incl. the spouse).
The second right which arises from a blood relationship means succession, maintenance duties, parental curatorship rights and the issues of adoption. The part on the curatorship right allows for more flexible determination of parental rights and duties with respect to their children. For instance, if the parents are separated and the curatorship right is given only to one parent it does not mean that the other parent loses the parental rights entirely. However, this parent's rights to enter into transactions on behalf of the child would be restricted.
The guardianship part of the draft act regulates the issues of guardianship of children and adults, with the most significant change being supervision over the activities of the guardian. According to the draft act, not the guardianship authority (the local government) but the court will give the guardian the approval to enter into transactions. This eliminates the situation where the same local government can be the guardian and the supervisor at the same time. The draft act also broadens the protection of the wards by allowing for appointment of a special guardian, who represents the ward in the event the interests of the ward and the guardian are in conflict.
The press release is accompanied by a clarifying memo on the issue, which was introduced in today's briefing.