Family Law

1) Cohabitation

- 2 persons (cohabitants)

- a cohabitation agreement is usually drafted by the cohabitants

- the cohabitation agreement stipulates the mutual rights and duties of the cohabitants

Differences between marriage and cohabitation

a)Succession – not automatic

b)Rights to the common home

c)Division of the property if the cohabitation fails

d)Benefits (usually social benefits)

2) Civil Partnership

- 2004 – introduced by the civil partnership act

- it became effective only in December 2005

- civil union – 2 persons of the same sex

- register office (or other approved premises)

- not divorce, but dissolution (to get dissolved)

3) Marriage (Matrimony)

  • Voluntary union
  • (For life)
  • 2 persons of the opposite sex
  • To the exclusion of others

Conditions to form a marriage

a)Age – 18 (16 with the consent of parents)

b)One of them must have been born as a male and the other as a female

c)At the moment of getting married, neither of them can be married

d)Free will of both partners

e)Prohibited degree of relationship

f)Sound mind

Procedural Perspective

  • The marriage must be solemnized (conducted) by an authorized person
  • It must be in authorized building
  • Other conditions

- civil or legal marriages, religious marriages

- to raise an objection

The rights and duties of married couple

a)Maintenance

b)Cohabitation

c)Parental responsibilities

d)Inheritance

Grounds for divorce

a)Adultery

- opposite sex

- six months period

- the innocent party finds it difficult to live with the other person

b)Unreasonable behavior (domestic violence, alcoholism)

c)Separation for 2 years with consent

d)Separation for 5 years without consent of the other party

e)Desertion – one of them leaves

- the petitioner v. respondent

- the petition for divorce

Divorce ↔ judicial separation

1 year + - 1 year, the marriage still exists

Divorce Procedure

3 parts:

  • The divorce itself – the marriage is ended
  • Ancillary relief (majetkovevysporiadanie) – the assets are divided
  • Custody – deals with children

Void and voidable marriages

Void – automatically invalid

Voidable – invalid only when the court decides

A void marriage has never existed in the eyes of law

A voidable marriage is valid until made void by a decree of annulment issued by the court

(relativneneplatnemanzelstvo – uznanezaplatnekymsanerozhodne o neplatnosti)

The grounds of void marriages

- not meeting the conditions that must be met

  • Age - Pugh v. Pugh – an Englishman married an 18 year old girl in Austria

- the minimum age requirement can not be avoided by marrying abroad

  • Prohibited degree
  • Already married
  • Difference in sex

-Talbot v. Talbot 1967 – two women got married by accident

Voidable marriage

  • incapacity to consummate the marriage

- physiologically, psychologically

- the problem must be permanent and incurable

- if there is a cure but it involves a risky surgery, this health problem will be considered incurable

  • willful refusal to consummate the marriage

- Ford v. Ford 1987 – Mr. and Mrs. Ford got married while Mr. Ford was in prison

  • Mistake
  • As to the person

- C. v. D. – she turned out to be a hermaphrodite

  • As to the ceremony

- if someone does not understand the ceremony (converting to another religion)

  • Duress
  • Unsoundness of mind

- usually involves only a mental health problem (not intoxication)

  • Veneral disease (pohl. choroby) – not HIV/AIDS
  • Pregnancy per alium

- if a woman is pregnant with another man in the moment of marriage

- only if one of the persons goes to the court