Family Law Instruments To Protect And Support Families, Parents And Children In Czechia

Family Law Instruments To Protect And Support Families, Parents And Children In Czechia Presented by: Prof. Dr. Králíčková Date: 8 October 2023 About The Legal Concept Of Families - CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS (1991) • - CHARTER OF FUNDMENTAL RIGHTS AND FREEDOMS (1991) • - all forms of family life family life in general ABGB (1811, 1918), AFL (1949), AF (1963), CC (2012) marriage: permanent union of a man and a woman • - RegPartA (2006) registered partnership for the same-sex couples NO LEGAL REGULATION • couples in de facto unions Marriage - - Personal rights and duties of spouses • to live together • to be faithful to each other • to mutually respect their honor and human dignity • to help each other • to represent each other • to create healthy living environment and background Property rights and duties of spouses • Community property  assets acquired by spouse during marriage (exceptions)  liabilities incurred by spouses during marriage (exceptions)  modification by contract • Maintenance duty • Family dwelling protection • Statutory inheritance • Public law protection: widow's or widower's pension Registered partnership - Personal rights and duties of partners • NO duty to live together, to be faithful to each other, to mutually respect their honor and human dignity, to help each other and to create healthy living environment and background - • DUTY to decide jointly common matters • DUTY to represent each other Property rights and duties of partners • NO community property • only co-ownership with shares towards things • maintenance duty • statutory inheritance • NO protection of common household • NO protection of family dwelling • NO public widow's or widower's pension • SELDOM CONTRACTS! De facto unions - Personal rights and duties of cohabitees • NO duty to live together, to be faithful to each other, to mutually respect their honor and human dignity, to help each other and to create healthy living environment and background - • NO duty to decide jointly common matters • NO duty to represent each other Property rights and duties of cohabitees • NO community property • only co-ownership with shares towards things • NO maintenance duty towards mother of new-born child except single • limited statutory inheritance • NO protection of common household • NO protection of family dwelling • NO public widow's or widower's pension • SELDOM CONTRACTS! Pending drafts - Conservative • Art. 32/1 CHARTER OF FUNDAMENTAL RIGHTS AND FREEDOMS  "Parenthood and the family are under the protection of the law."  Amendments: o "Parenthood, the family and marriage as an union of a man and a woman are under the protection of the law." - progressive? • § 655 CC  "Marriage is a permanent union of a man and a woman formed in a manner provided by this Act."  Amendments: o "Marriage is a permanent union of two people ..." The concept of motherhood - § 775 CC • „The child's mother is the woman who gives birth to the child." • Assisted reproduction: a infertile couple, homologous and heterologous (anonymous), IVF + ET (Act No. 373/2011 Coll.) - Problems connected with motherhood • a) secret/hidden motherhood (since 2004) • b) reality of baby-boxes (since 2005) • c) de facto surrogate motherhood (since ???) Ad a) the child births with the secret motherhood - § 37 Act No 372/2011 Coll., on Health Services • the child's mother may declare that she does not intend to care for the child • details:  single, adult, permanent residence in the Czech Republic  status: she is the mother due to the birth  birth records: no mother  envelope: identity of the mother can be detected Ad b) reality of baby-boxes - - since 2005 • 26. 9. 2023: 85 boxes „saved" 253 children • for details see www.statim.cz or www.babybox.cz THE UN COMMITTEE ON THE RIGHTS OF THE CHILD • Report from 2011  „Presently out of every 10,000 newborn children, 62 children are placed in institutional care - a number way over the EU average which is under 10."  „Parents who can't cope are encouraged to give up their children rather than being helped to retain them."  „The country's 44 baby boxes contribute to this trend-making it all too easy to give up a child on the spur of the moment." Ad c) de facto surrogate motherhood - § 804 CC • Adoption is excluded among persons related in direct line and between siblings. This does not apply in the case of surrogate motherhood. - ECHR: Mennesson v. France, Labasse v. France Paradiso et Campanelli v. Italy The concept of fatherhood - § 776 CC – marriage • (1) If a child is born in a period between the date of entering into marriage and the three hundredth day after the marriage terminated or was declared invalid, or after the mother's spouse was declared absent, the mother's spouse is presumed to be the father. • (2) If a child is born to a remarried woman, the subsequent husband is presumed the father, even if the child was born before the three hundredth day after the previous marriage was terminated or declared invalid. - §779 CC-mutual consent - declaration • (1) If paternity is not determined pursuant to Sections 776, 777 or 778 (the first presumption), the man whose paternity has been determined by an affirmative statement of both the mother and the man is presumed to be the father. Paternity in respect of an unborn child may also be determined in this manner if the child has already been conceived. • (2) The statement is made in person before a court or a registry of births, deaths and marriages. A minor lacking full legal capacity shall always make the statement before a court. - §783 CC-sexual intercourse • (1) If paternity is not determined pursuant to Sections 776, 777 or 778 (the first presumption) or pursuant to Section 779 (the second presumption), the mother, child as well as the man who claims to be the father (putative father) may apply to a court to determine paternity. • (2) The man who had sexual intercourse with the child's mother at a time from which at least hundred and sixty days and no more than three hundred days have elapsed until the child's birth is presumed to be the father, unless his paternity is excluded due to serious circumstances. • (3).... Problems connected with fatherhood - LEGAL PARENTSHIP AGAINST THE FATHERS' WILL • res iudicatae • ECHR PAULIK v. SLOVAKIA, NOVOTNY v. CZECHIA – amendment to CPC „possibility the case to be opened" - RIGHTS OF PUTATIVE FATHERS • ECHR KEEGAN v. IRELAND - amendment to AF, CC Problems connected with same-sex registered partners as parents - NO right to adopt a child together (or to become step-adopter) or to become common foster parents („only" spouses) - New: right to become common guardians (spouses „as a rule") - New: right to adopt a child during registered partnership - single adoption (case law of CC) CONSTITUTIONAL COURT DECISION - TWO MARRIED MEN (ONE CZECH), SURROGATE MOTHER, ONE CHILD BORN IN THE USA - REJECTION OF RECOGNITION OF THE CIVIL STATUS OF THE CHILD BY THE CZECH SUPRIME COURT - CONSTITUTIONAL COURT ARGUMENTS: • HARMONY BETWEEN BIOLOGICAL, SOCIAL AND LEGAL PARENTHOOD • FAMILY LIFE • THE BEST INTEREST OF THE CHILD Conclusions - LOW MARRIAGE RATE v. INCREASE OF de facto UNIONS - HIGHT DIVORCE RATE and HIGHT RATE OF SINGLES - GENDER NEUTRAL MARRIAGE/MARRIAGE FOR ALL? - LOW FERTILITY - BABY-BOXES - SURROGATE MOTHERHOOD - PRACTICAL PROBLEMS: TWO MEN AND A CHILD - (USA, PARENTAL ORDER - public order, civil status of the child: continuity?) - GENDER NEUTRAL PARENTAGE? - CO-PARENTING - CONTINUING PARENTING