Non-marital heterosexual relationships

In document Policy contexts and responses to changes in intimate life (Page 50-58)

1. Bulgaria (Mariya Stoilova)

1.3. Non-marital heterosexual relationships

1.3.1. Is there law governing heterosexual cohabitation/ de facto relationships?

There is no separate piece of legislation/ policy document that governs cohabitation/ de facto unions. There are scattered and sporadic texts that can be found in a few policy documents and laws, but this does not make cohabitation visible in terms of legislation. With some small exceptions that are explored in detail here, there are no provisions regulating these relations and it can be argued that these relations do not exist in the eyes of the Bulgarian judicial system.

In contrast to the poor legislative presence of cohabitation, there is very heated public debate on these issues. Bulgaria is one of the countries in the EU with highest proportion of children born outside of wedlock and there is a rising concern about parental rights/ responsibilities and the rights of the children. In case of the separation of cohabiting parents the state does not have the right to intervene and decide about parental rights. The Commission for Protection against Discrimination proposed four main changes of the Family Code that would regulate de facto unions: cohabitants to have the right to support after separation; cohabitants to have the right to contact with the child in case of separation; regulation of property relations; and the family name of the child (Sega, 2007). At present property rights and the right to support are not regulated at all. There are provisions about the family name and contact with the parents if the father has officially registered his paternity with the authorities.

Other proposals for changes to the Family Code came from the Socialist Party and from National Movement Simeon the Second. They have similar aims – to protect the rights of the children and to sort out property issues. It has not been discussed that these

entitlements should be available for same-sex couples too. In spite of the discussions no changes in the direction of recognition of cohabiting relations have occurred so far.

1.3.2. What are the rights and responsibilities of heterosexual cohabitants/ de facto partners?

The lack of recognition of cohabiting relations in the legislation leads to no rights and no obligations between cohabiting partners. This does not relate only to the relationship between the couple but also to their children –only the partner who is the biological mother/ father, or the legal adopter/ carer of the children has obligations and parental rights. The biological father has the opportunity to ‘recognise’ the child as it is worded in the legislation, which means that he registers himself as the father at the birth or soon after that. Non-married, non-biological parents cannot do this, but they can adopt their partner’s biological children.

It can be argued that rights and responsibilities in the Bulgarian legislation are bred only by marital and/ or blood relations, not by ‘de facto’ unions. Cohabiting partners do not have the right to inherit from other, no right to support, they do not have shared property rights, and they cannot take each other’s family name.

1.3.3. Are there fiscal benefits and privileges for cohabitants/ de facto partners– e.g. tax, social security and unemployment benefits, pensions and survivor benefits, carers’ allowances, inheritance rights?

There are no fiscal benefits that are targeted exclusively at cohabitants, quite the

opposite– there are such benefits that cohabiting partners are excluded from because they are linked to marriage. Such benefits are the survivor’s benefit, and inheritance rights. Even if the non-married partner is entitled to inherit from their partner through a will, they will be in disadvantageous position because they need to pay higher taxes. However, all benefits that are related to raising children are not related to marital status and

cohabiting couples are entitled to them. More examples of such benefits can be found in the section on Parenting and Reproduction.

Most of the benefits that state social security gives do not depend on marital status, but on the individual’s social insurance status. These benefits are: benefits in the case of a

temporarily reduced ability to work; disability; maternity, unemployment, old age, death (Social Assistance Law). Cohabiting (and single) people are entitled to all these benefits on the same grounds as married people. The only exception is in case of death of the insured person, when the spouse (marriage necessary) and/or children (official

registration of fatherhood necessary if not married to the mother) can receive some of the benefits, as was discussed previously (Section 1 on Marriage).

1.3.4. Are there social benefits and privileges for cohabitants/ de facto partners – e.g. access to social/ state housing; decision making in the event of illness or disability – i.e. next of kin recognition by hospitals?

There are social benefits that cohabitants can use. One of them is the opportunity to become a personal assistant of an impaired partner. According to the Social Assistance Law cohabiting partners (same-sex partners are not explicitly mentioned but they are not excluded either) can receive payments from the state to care for their disabled cohabiting partner. In the additional provisions the law defines cohabiting people as people ‘living together in the same dwelling with or without kinship ties, registered [with the

Municipality] at the same address’.

Comment

This understanding of cohabitating partnerships is quite common – the recognition of the relationship, as rarely found as it is, is always though living together. This makes LAT relationships impossible to legitimise. Another important aspect of the above mentioned understanding of cohabitation is that the relationship is often deprived of its sexuality. This occurs because the comprehension of cohabitation is broad enough to embrace all types of relationships, including non-sexual ones and is often referred to as ‘household’. In this sense the way cohabitation is constituted in the Bulgarian legislation and policy remains much closer to the way we (WP6) have framed our understanding of intimacy, rather than being a relationship linked to sexuality.

The provisions of the Criminal Procedure Code offer some recognition of cohabiting (homosexual and heterosexual) couples as it allows not only blood or marital relations (such as the spouse, ascendants, descendants, brothers, sisters) of the accused party but also individuals with whom he/she lives together to refuse to testify (Art.119). Article 121 also clarifies that a ‘witnesses shall not be obliged to testify on questions, the answers to which might incriminate them, their relatives of ascending and descending line, brothers, sisters, spouses or individuals with whom they in ‘factual cohabitation’ with. Unfortunately, there is no definition of ‘factual cohabitation’ in this law. According to the Civil Procedure Law a person can refuse to present a document if its content relates to the personal or family life; or its presenting will cause dishonour of the person or close people.

Comment

There is a very interesting example of how cohabitation is ‘written between the lines’ and is more a matter of good will, rather than a strictly defined legal term. The people who are entitled to municipal [state] housing are either individuals or families. Family is explicitly defined as ‘spouses and the underage children if they have not entered

marriage’ (Law on Municipal Property, last amendment SG 63/03.08.2007), Additional Provisions: 2). The following people and families have priority: families with two and more children; single parents with underage children; families where one of the members has 1st or 2nd degree impairment; young families; families or individuals who have lived under hard living conditions longer (Regulations on the Implementation of the Law on Municipal Property, Art.7:3). At the same time, the same document uses the term ‘one- person family’ (Art. 17:1), rather than a ‘single person’, which demonstrates quite flexible understanding of what ‘family’ is. Furthermore, in the Annual Report of the Public Mediator (2002) is mentioned that people are required to present a copy of their marriage certificate to prove their civil status. However, one needs to get to the more ‘practical’ documents to understand the functioning of these entitlements. In the declaration that a person has to fill in to apply for municipal property the category is changed to ‘family/ household’, which makes non-married couples eligible to apply. The declaration defines family/ household members, income and housing conditions.

This situation shows the necessity of integrating cohabitation/ de facto partnership into legislation and policy and of making it more visible. The current situation reveals that there is significant discrepancy between legislation and practice, and also significant confusion of the terms used. The practical flexibility of the terminology that is currently used creates dependence on the personal judgement of the civil servants, rather than on legal rights and opens possibilities for corruption.

1.3.5. How different from marriage are non-marital heterosexual relationships in terms of fiscal benefits and social benefits?

Benefit/ Privilege Married Couples Cohabitants

Temporary employment incapacity Benefit (looking after ill family member)

Yes No

Bereavement benefit Yes No

Hereditary Pension Yes No

Right to Inheritance Yes (including ‘reserved

share’)

No

Benefits on Inheritance Tax Yes No

Property Rights Yes No

Days off work for bereavement Yes No

‘Nearest Relative’ in Health Act Yes Yes (with conditions)

Removal of sanctions of some sexual acts (for example with persons the under age of 14)

Yes No

Meetings/ phone calls/ correspondence while in prison

Yes No

Right to family name change Yes No

Father’s Parental Responsibility Yes (including 300 days

after divorce)

Not automatic

Adoption Rights Yes Yes, for other

partner’s children No, for other children Right to become a personal assistant of

impaired partner

Yes Yes

Right to refusal of criminal testimony Yes Yes

Rights to transplantation of organs Yes Yes

Protection from rape Yes Yes

Protection from domestic violence Yes Yes

Marriage and non-marital heterosexual relationships are treated differently by the Bulgarian legislation. Marriage, quite often blood ties too, give rise to many rights and responsibilities that are not valid for not-married couples. Example of these are

entitlement to days off work for care, shared property, right to financial support from each other, hereditary pensions. In other occasions, although these entitlements are not ‘by default’, they can be initiated, for instance: inheritance through will; parenting through ‘recognition’ of the child; visits in hospitals and information about a health condition through a declaration; social housing, and some income related social benefits through possibility of considering households instead of spouses. There are other

situations where non-marital relationships are explicitly recognised, for example in cases of domestic violence and donation of organs.

It can be argued that Bulgarian legislation has a mixed approach to non-marital relations, encompassing situations of total denial of rights and responsibilities and some of equality and recognition. The co-existence of very old and traditional texts and very contemporary pieces of legislation makes the understanding of how different marriage and non-marital relationships are difficult. There is inconsistency in the overall approach, and also discrepancy between legislation and actual practices, for example in the cases of entitlement to state housing. LAT relations are the ‘persona non grata’ of the Bulgarian legislation and policy.

1.3.6. What is the law (if any) regarding domestic violence, and what are the policy initiatives to combat it?

The Law on Protection from Domestic Violence (2005) does not distinguish between the marital status of the people involved. According to the law domestic violence is ‘any act of physical, mental or sexual violence, and any attempted such violence, as well as the forcible restriction of individual freedom and of privacy’, carried out against individuals who have or have had family or kinship ties or cohabit or dwell in the same home (Art.2). People can seek protection under this law if they have suffered violence from: a spouse or

ex-spouse; a person with whom they are or have been in a de-facto union; a person with whom they have a child; relatives by ascending or descending line; brother or sister; relative by-marriage up to 2nd degree; guardian, trustee or foster parent. The procedure can be initiated by the victim, by the Executive Director of the Agency for Social

Assistance or, in the cases of urgent protection, by siblings of the victim or other relatives of direct descent. In this sense the law provides for cases of de facto unions or people who used to live in de facto unions. LATs again remain outside the provisions.

1.3.7. To what extent are the two parties to a cohabitation/ de facto union treated as a couple/ unit, and to what extent are they treats as individuals?

The two parties of cohabitation are most often treated as individuals, the law does not assume by default that there is bond between them. At the same time there are

opportunities for recognition of the relationship and the cohabitants can undertake actions that will ‘make’ them a unit. In other cases, such as applications for state housing, the couples are treated as a unit to avoid the ‘draining’ of state resources.

Comment

History: The socialist policy – relaxed towards cohabitation

In 1945 there is a Supplementation to the Law on Support of the Victims of the Anti- Fascist and Anti-Capitalist Fight which allows the ‘illegitimate wives of people’s fighters’ to receive support. (Vodenicharov, 2004, p9).

In document Policy contexts and responses to changes in intimate life (Page 50-58)