The Institute of Habitatio in the Family Law of the Republic of Srpska

Abstract

Introduction: The Roman institute of habitatio (the right of residence) represents a personal servitude that authorizes its holder to use another person’s residential property for residential use, without the right to dispose of it. From the perspective of children’s rights, it means the child’s right to a family home, which is guaranteed by international conventions, primarily the Convention on 
the Rights of the Child, adopted in 1989, ratified by Bosnia and Herzegovina. The Family Law of the Republic of Srpska, in Article 339, regulates the right of residence in the family home in favor of the minor child and the parent entrusted with the exercise of parental rights. 

Aim: The aim of the paper is to analyze the Roman law institute of habitatio and its connection with the right of residence contained in the current law of the Republic of Srpska, with special emphasis on the Family Law. We will point out the original characteristics of this institute, the changes it underwent through reception, as well as its significance in assessing the best interests of the child when providing care.

 Materials and Methods: For the purpose of writing this paper, scientific literature in the form of textbooks, master’s and scholarly papers, positive legal regulations of the Republic of Srpska and neighboring states, medieval legal codes, as well as numerous foreign sources, were used. The authors used the following methods: historical, comparative-legal, and normative-dogmatic methods. 

Results: The analysis shows the significance of the Roman institute of habitatio, which, despite the passage of time, has found its place among the internal legal acts of the Republic of Srpska, such as the Family Law and international treaties relating to children’s rights. 

Conclusion: In addition to the three articles of the Family Law of the Republic of Srpska dedicated to this issue, answers to questions that may arise in the procedure of establishing the right of residence are provided by the court. Thus, this paper presents a complete picture of the institute of habitatio, starting from its origins, the solutions of modern legislators, and the judicial practice that interprets the written provisions of the law.