In 2007, Tereza Usar petitioned the Municipal Court in Mostar to recognize a common law marriage so that she could exercise her right to a family pension. Usar had lived in a common-law marriage with Ivan Usar from July 1992 until September 1993 when he, a member of the Croatian Defence Council, was killed during the Bosnian War. In the suit, Usar named as defendants the minor child she had with Ivan Usar and his legal heirs, his children from a previous marriage. The Municipal Court dismissed Usar’s claim, finding her petition constituted a request to establish facts and not to enforce a right or legal relation because common-law marriage is not regulated by law, but is a factual situation of a union of a man and a woman. The Cantonal Court in Mostar and the Supreme Court of the Federation of Bosnia and Herzegovina (“FBiH”) upheld the lower court’s dismissal. In 2012, the Constitutional Court of BiH quashed the judgment of the Cantonal Court in Mostar, finding the Cantonal Court violated Usar’s right to a fair trial under Article II(3)(e) of the Constitution of BiH and Article 6(1) of the European Convention on Human Rights. The appellate court found the lower court had arbitrarily applied the law in determining that common-law marriage is a factual and not a legal relation. The Cantonal Court’s decision directly conflicted with Articles 213, 230-234, 263, and 380 of the Family Law of the FBiH, which prescribe the manner for the maintenance of common-law partners and children from common-law marriages, their property relations, and the procedure for obtaining protection against domestic violence. That is, according to the Constitutional Court of BiH, the legislature of the FBiH did not make any distinction between marriage and common-law marriage with respect to legal relations. Thus, “a life in common-law marriage implies certain rights and obligations, and hence, the existence of a legal relation between the persons who live or who had lived in a common-law marriage.”
Decision available in English here.
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