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