The conference was organised as part of Central European Professors’ Network 2021 and coordinated by the Ferenc Mádl Institute of Comparative Law.
The family law section on the topic ‘Cohabitation in the European Context’ was held at the ‘Conference for Young Lawyers (COFOLA) 2021’. This event has been held annually by the Faculty of Law of Masaryk University since 2007. Unfortunately, we did not have many participants from abroad, likely due to ‘Zoom fatigue’ this year. We hope that our second event, the meeting scheduled for autumn, will be more international.
The event in brief
The family law session focused on cohabitation in the European context. Attention was given not only to the Czech legal regulation anchored in the Civil Code, but also to the Principles of European Family Law regarding Cohabitation by the Commission on Family Law (CEFL), the Model Family Code, and case law of the European Court of Human Rights. Contributions focusing on either private or public law were accepted, and one speaker attended from abroad.
- Introduction – Z. Králíčková
- The missing concept of cohabitation in the Czech Civil Code – Z. Králíčková, Masaryk University, Brno, Czech Republic
- Principles of the European Family Code as an inspiration for lawmakers in Europe – Zatloukalová, Masaryk University, Brno, Czech Republic
- The right to family life in the case law of the European Court of Human Rights – P. Kotková/M Palásek, Masaryk University, Brno, Czech Republic
- The protection of minors born out of wedlock – M. Kornel, Masaryk University, Brno, Czech Republic
- Cohabitation and assisted reproduction in the Czech Republic in the European context – D. Kotroušová, University of West Bohemia, Pilsen, Czech Republic
- Cohabitation in the Slovak Republic: Myth or reality? – L. Garayová, Pan-European University, Bratislava, Slovakia
- Conclusion – M. Kornel/L. Zatloukalová
The event in detail
Following an introduction by the chairperson, Zdeżka Králíčková presented ‘The missing concept of cohabitation in the Czech Civil Code’. The paper dealt with de facto unions, especially those created by men and women. The presentation defined cohabitation and differentiated between the rights and duties of cohabitees connected through a relationship between members of the opposite sex (marriage) and those of cohabitees in a same-sex relationship (registered partnership). As there are few agreements between them, special attention was devoted to the legal rules anchored in all the books of the Czech Civil Code—Book I: General, Book II: Family Law, Book III: Property Rights and Succession, and Book IV: Obligations—and their applicability to cohabitees during the relationship, after relationship breakdown and upon the death of a cohabitee. The speaker stressed that there were no differences between laws governing children born out of wedlock and within marriage. Once parenthood is legally established, there is no legal discrimination between married and non-married fathers in their relationship with their children. Additionally, special provisions, such as property claims—within a reasonable period and limit—by a non-married mother from the child´s father, protect weaker parties.
The next speaker, Lucie Zatloukalová, discussed the ‘Principles of European Family Law as an inspiration for lawmakers in Europe’. The Principles of European Family Law regarding the property, maintenance, and succession rights and duties of couples in de facto unions were developed by the CEFL, an international group of academic experts in family law. The Principles aim to support harmonising European law and to inspire national lawmakers to modernise legislation. Further, the Principles attempt to capture the common core of individual national legislation. If a substantial question does not have a common core, the Commission creates a new rule or ‘better law’. Zatloukalová stressed that principles relating to couples in de facto unions deal mainly with the definition and application framework, general rights and obligations, agreements, property and debts, termination of cohabitation, death, and mutual disputes. The Principles are only advisory. As a more conservative approach prevails in the Czech Republic, de facto unions have not been governed by specific legal regulations. In the future, interesting new legal constructions of the rights and duties of couples in de facto unions could inspire Czech legislators. In the presentation, Zatloukalová provided some proposals of rights and duties according to the Principles for Czech lawmakers.
‘Cohabitation in the case law of the European Court of Human Rights’ by Milan Palásek and Petra Kotková was presented by the latter. The paper was devoted to the case law of the European Court of Human Rights relating to cohabitation and other legal aspects related to this institution. The main focus was on the clarification between cohabitation in a relationship of marriage and a same-sex relationship, especially in connection with Articles 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Martin Kornel presented on the ‘Protection of Minors Born out of Wedlock’. He stressed that children born out of wedlock should not be discriminated against based on their status (i.e. Article 2 of the Convention on the Rights of Children). However, the law traditionally approaches children of married and unmarried couples differently. Rules on filiation (fatherhood determination) and obligatory court judgement on custody before parental divorce are the most obvious examples of such situations. This study explored reasons for differing treatment based on child protection legislation and investigated the possibility of more proportionate means of protection. Following presentations by lawyers from Masaryk University, the floor was given to guests.
Denisa Kotroušová presented her paper on ‘Cohabitation and assisted reproduction in the Czech Republic in the European context’. She stated that judicial practice of the European Court of Human Rights leaves no doubt that family life exists between two persons living in a stable relationship outside of marriage or any other formalised union. An inherent part of the family life of any couple, regardless of marital status, is the question of having children. Unfortunately, not every couple can procreate naturally and assisted reproductive technology (ART) is one approach used in such instances. Although access to ART may seem simple at first glance, easy access cannot be assumed in cases of cohabitation, at least not for all cohabitants in every European country. Kotroušová described the current legal position of cohabitants regarding access to ART and the rights and duties—particularly related to the child conceived with this technology, especially under Czech law. The introduction briefly described basic terms such as ‘cohabitation’, ‘assisted reproduction’ and ‘infertile couple’. The second part focused solely on the legal position of cohabitants vis-à-vis the Czech regulation of ART, exploring the issue from two closely connected points of view: 1) whether or not cohabitants form the infertile couple, and 2) whether cohabitants are of the same or opposite sex. The third part of the discussion added a broader international context while providing a brief overview of Europe’s approach to this issue. Some European countries—particularly those whose approach differs from that of the Czech Republic—were examined in greater detail. The presentation concluded with a summary and posed some questions arising from Czech and European approaches.
Lilla Garayová presented her paper ‘Cohabitation in the Slovak Republic: Myth or reality?’ She stated that her presentation sought to define the basic concepts related to the institution of cohabitation, which is only marginally addressed in Slovak legislation despite changing social trends. The 21st century represents an era of change in which we observe the evolving attitudes of young people towards marriage and traditional family values. Therefore, the question rightfully arises: what is the future of marriage? Garayová asserted that Slovak family law in its essence is very traditional and therefore does not recognise same-sex or other non-traditional forms of marriage, and does not define or protect cohabitation, regardless of the gender of cohabitants. A discussion largely devoted to the protection of family dwellings and the new concept of divorce law with minor children followed.
The conclusion emphasised that:
- individuals of the opposite sex can enter marriage and enjoy all rights entitled to married couples, and
- individuals of the same sex can get registered and have some protection by law, especially in the case of the death of a spouse.
The following research questions were identified:
- Is an amendment to the new Civil Code required?
- Shall the lawmaker respect the private autonomy of cohabitees not willing to seek special rights and duties connected with marriage or registered partnership?
- Should the lawmaker draw special rules for these cohabitees according to the Model Family Code or the CEFL’s Principles of European family law?
- If not, should the lawmaker create different provisions instead?
As there is little regulation of the rights and duties of cohabitees and as contracts between them seldom exist, the situation of the weaker cohabitee can be quite difficult. A lack of legal certainty, especially in families with minor children, is often associated with the breakdown of the union. However, it is difficult to strike a fair balance between the private autonomy of those who form a de facto union and the protection of the welfare of a family not based on marriage.
We hope that we were able to address the above-mentioned research questions in greater detail during the conference.
In addition to the presenters listed above, 8-12 doctoral students from the Faculty of Law, Masaryk University, Brno, Czech Republic connected via MS Teams.