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2021, vol. 55, iss. 2, pp. 593-600
Religious marriage between consent and coercion - Čović Ana: Family And Legal Aspects Of Religious Marriages, Institute of Comparative Law, Belgrade, 2020
University of Priština - Kosovska Mitrovica, Faculty of Teacher Education, Prizren-Leposavić

emailjovan.bazic@pr.ac.rs
Keywords: religious marriage; religion; right; LGBT partnership
Abstract
The review of this monograph is observed through the analytical-descriptive approach, which considers the social context of religious marriage arrangement. Moreover, special attention is paid to the results of the analysis of the church matrimonial law rules and their effect in Serbia's legal system, as well in some European societies. The review also speaks about the arrangement of LGBT partnerships as a challenge to the traditional marriage concept.

This monograph by Ana Čović, PhD, Senior Research Associate in the Institute of Comparative Law in Belgrade, is the result of her work within the Institute’s 2020 Research Programme supported by the Ministry of Education, Science and Technological Development of the Republic of Serbia. Here the author presents the results of her research into religious marriages arrangement, dedicating special attention to the analysis of the relevant regulations in church matrimonial law of the Serbian Orthodox Church, the Code of Canon Law and Islamic (sharia) marriage law, as well as their effects in the legal system of the Republic of Serbia and some other European countries. This monograph has been reviewed and recommended for publication by the following outstanding legal experts: Professor Nebojša Šarkić, PhD, Professor Milan Počuča, PhD, and Professor Vladimir Čolović, PhD, the Director of the Institute of Comparative Law.

The content of the monograph is defined and organized in eight chapters which include the topics researched by the author. The separate preface briefly points to the subject and aims of the monograph. At the very beginning, Ana Čović, PhD, observes exceptionally well that “both states and religious communities have always been equally interested in the area of marital law” (Čović, 2020, p. 9), which points to the paradigm that marriage is a legally and socially sanctioned union regulated by laws, beliefs, customs, rules and morality prescribing the rights and duties of spouses.

The first chapter entitled “Introduction to basic religious attitudes about marriage and woman’s position” contains the considerations about: marriage through history, the biblical relationship between the man and the woman, Christian marriage, the woman’s position in Islam as compared to Christianity and Judaism, the sources of sharia law and its application, as well as the woman’s position and basic attitudes about marriage in Hinduism and Buddhism. With these topics, the author makes a broader context for understanding marriage in different cultures and religions, while also pointing to the historical dimension, thus subtly showing her mastery of the topic outside the legal framework as well. In the following chapters (the second, third and fourth), through the prism of expert legal meticulousness, the author comparatively views the thematic units referring to the arrangement of marital life, whereas these topics also intrigue and arouse the curiosity even of those readers who do not belong to the legal profession. Namely, the second chapter entitled “Conclusion of marriage”, there are considerations about: the conditions for the conclusion of marriage in the Serbian Orthodox Church; the procedure for the conclusion of marriage and its registration in church books of the Serbian Orthodox Church; the conditions for the conclusion of marriage in the Roman Catholic Church; the form of marriage celebration and registration in church books according to the Code of Canon Law; and about the conditions for the conclusion of marriage in sharia law. Furthermore, in the third chapter entitled “Legal effects of marriage”, the author deals with the mutual rights and duties of spouses, as well as with their rights and duties regarding children. The fourth chapter entitled “Termination of marriage” considers the normative arrangement of the termination of marriage in the Serbian Orthodox Church, the Roman Catholic Church and sharia law. Just as most legal experts, theologians and structuralist sociologists, the author approaches these matters from the perspective of the static understanding of the order, by abstracting modern social changes that also affect religious attitudes about marriage. In that context it should also be taken into account that “contemporary theology of marriage and family primarily cares for social and cultural changes embracing religious life as well, so that there will be a transition from the static understanding of the order of things to a more dynamic and evolutive one” (Tamarut, 2015, p. 679). That is why it might be more interesting if such approach was expressed in the considerations of the thematic units that refer to the arrangement of married life, as it was done in the final considerations because the evolution of religious attitudes and legal regulations about marriage can be best seen in that domain. In the fifth chapter, the author opens up a new thematic unit referring to mixed marriages. First of all, she explores the regulations about mixed marriages through history, from Moses law to the modern church writing, and then she points to the attitude towards mixed marriages in the Serbian Orthodox Church, in Catholic canon law, and in sharia law. All the considerations of these matters are characterized by an attitude that the marriage between the persons of different religious may be entered into only under certain and strictly stipulated conditions which are essentially reduced to the preservation of religious unity. On the other hand, many experts, particularly sociologists and psychologists, have divided opinions about marriages between persons of different religions, cultural patterns and different mentalities, while some studies show that mixed marriages are rarely terminated by divorce because they are founded on the richer culture where “mine and yours” becomes “ours”, and that is why compromise is more frequent in such marriages (Dijaspora online, 2020).

In the sixth chapter entitled “Legal effects of religious marriages in the state and legal sphere”, the author quite studiously deals with: the legal effects of church marriage and divorce in the Republic of Serbia and the European Union member countries, the legal effects of sharia marriage and the arbitration councils in the United Kingdom, as well as the issue of implementing the church family law through case law examples. This essentially refers to the intertwined jurisdictions in the conclusion of marriage, marital relations and the termination of marriage deriving from the relation between religion and the state. For the purpose of illustration, it is enough to indicate that the Serbia Civil Code from 1844 recognized the church jurisdiction in the conclusion of marriage (Article 60) and the jurisdiction of church courts in the termination of marriage, including (Article 99). As a matter of fact, sharia courts existed in the territory of Bosnia and Herzegovina as late as 1946. Sharia law was also applied in the territory of Serbia regarding Islamic spouses.

The author dedicates the seventh chapter to the attitudes of religious communities about LGBT marriages. However, here the term “LGBT marriages is rather rarely used and mostly substituted by the term “same-sex couples”, while there is the impression that the author seriously takes into consideration the fact that LGBT partnerships cannot achieve the basic social functions of marriage (biological reproduction, kinship and inheritance), so that is why it is difficult to characterize them as marriages. The matter of redefining marriage “as indifferent to procreation” (Antonić, 2014, p. 99), i.e. of the legal regulation of the same-sex couples, has been presented continuously in different forms ever since the 1970s, whereas there has been increasing insistence on the recognition of the marriage status (Waaldijk, 2005; Ruth Deech, 2010; Herring, 2019; et al.). However, this matter has always been too sensitive, not only to the law-makers but also to the researchers dealing with it. That is why it takes great courage to face this matter from the scientific perspective, particularly within the coordinates of religious attitudes and legal regulation, as Ana Čović, PhD, has done very successfully. The illustrations in the form of interesting court awards also give a substantial quality to these considerations.

Final considerations are presented in the eighth chapter. Here the results of the analysis of the family and legal aspects of religious marriages are summed up. Ana Čović, PhD, rightfully indicates that the influence of religion is present in all spheres of social relations, particularly in marital and family relations. From that context she draws the basic thesis of its analysis: that the conditions for the conclusion and termination of church marriage in the sphere of state law in the Republic of Serbia and other European countries depend on the “influence of the church and its relations with the state” (Čović, 2020, p. 185). This conclusion, as well as all other conclusions by the author, seems to be interesting and convincing. Within the context of final considerations, the author points out that religious and legal regulations striving to be in the function of the progress of the society and individuals “must take into account the current social circumstances”, and that the state and religious communities, through mutual cooperation, should provide “the preconditions in which the man can live and develop as a free citizen, but also as a free spiritual being”. The responsibility and obligation for it, as the author emphasizes, is held by government officials and religious leaders who should “bring religions and laws close to the contemporary conditions of life” (Čović, 2020, p. 186).

In this monograph there is a large number of quotes, paraphrases and references to corresponding documents and court awards. The relation between these elements, footnotes and bibliography is established quite carefully and functionally. The bibliography contains 149 items, mostly legal literature in Serbian and English, as well as 20 legal sources (constitutions, laws, church regulations, international conventions, resolutions and charters). In addition, there is an overview of numerous court awards referring to the application of the religious family law, primarily in the United Kingdom and the USA, as well as in the territory of the Republic of Serbia, namely in Novi Pazar.

In her book Family and Legal Aspects of Religious Marriages, Ana Čović, PhD, very clearly and on the basis of arguments analyzes numerous matters regarding marital law and the attitudes of religious communities and the state towards this law. There is an impression that the author has explored these matters objectively from various aspects, thus enabling the reader to get acquainted with the latest research findings and results on a series of matters regarding marital law. Works like this one are necessary to our scientific, expert and social public so that it can become informed and encourage more creative consideration and resolution of many matters in relation to marriage, particularly those that regulate and apply marital legislation, because marriage is not only a theological and legal category, but it also implies conjugal love (amor coniugalis), an intimate union of married life and an existential spiritual unity. That is why this monograph is inspirational to many researchers who deal with studying marriage, to law-makers, as well as to curious readers who want to get informed or learn more about religious marriages.

References

Antonić, S. (2014). Power and Sexuality: Sociology of the Gay Movement. Pale: Sociološko društvo Republike Srpske. Retrieved from https://fedorabg.bg.ac.rs/fedora/get/o:7605/bdef:Content/download.
Čović, A. (2020). Family and Legal Aspects of Religious Marriages. Beograd: Institut za uporedno pravo. [In Serbian]
Deech, R. (2010). Same-Sex Unions and Marriage: Is There any Difference? International Journal of the Jurisprudence of the Family, 1. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3112902.
Dijaspora online. (2020). Mixed Marriages: Different Languages and Customs, but True Love. Retrieved from https://dijaspora.tv/mesoviti-brakovi-mane-i-prednosti.
Herring, J. (2019). Family Law (Ninth edition). London: Pearson.
Tamarut, A. (2015). Contemporary Theology of Marriage and Family. Bogoslovska smotra, 85(3), 679-700.
Waaldijk, K. (2005). Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries. Judicial Studies Institute Journal, 5, 104-127. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1428827.
References
Antonić, S. (2014) Power and Sexuality: Sociology of the Gay Movement. Pale: Sociološko društvo Republike Srpske, Available at: https://fedorabg.bg.ac.rs/fedora/get/o:7605/ bdef:Content/download, In Serbian
Čović, A. (2020) Family and Legal Aspects of Religious Marriages. Beograd: Institut za uporedno pravo, In Serbian
Deech, R. (2010) Same-Sex Unions and Marriage: Is There any Difference?. International Journal of the Jurisprudence of the Family, Vol. 1, Available at: https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=3112902
Dijaspora online (2020) Mixed Marriages: Different Languages and Customs, but True Love. Available at: https://dijaspora.tv/mesoviti-brakovi-mane-i-prednosti
Herring, J. (2019) Family Law. London: Pearson, Ninth edition
Tamarut, A. (2015) Contemporary Theology of Marriage and Family. Bogoslovska smotra, 85(3): 679-700, Available at: https://hrcak.srce.hr/147992
Waaldijk, K. (2005) Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries. Judicial Studies Institute Journal, 5: 104-127, Available at: https://papers.ssrn.com/sol3/papers. cfm?abstract_id=1428827
 

About

article language: English, Serbian
document type: Opinion/Review
DOI: 10.5937/socpreg55-31820
received: 13/04/2021
accepted: 18/05/2021
published in SCIndeks: 16/07/2021
Creative Commons License 4.0