Throughout her years of practice, Eva has worked on many individual cases with foreign families in Brno. She now shares the tidbits of Czech law that keep surprising her clients.
If you have a family in Brno, read on to make sure you regard your rights and obligations the same way Czech law does.
1) Applying the correct law isn’t always straightforward
It is often the case that when people start dealing with a legal issue involving their family, they do not think about the laws of which country will apply to their situation. Sometimes, they do not consider that a foreign country may apply its own law even on such personal issues. Other times, they automatically assume that it would. Many times, people think that one universal “European” law exists and that determining which law applies is not an issue at all. But the situation is not so straightforward. There is no shame in not knowing; even some attorneys who are not used to dealing with issues with an international element might forget to consider this.
On the one hand, each country naturally applies its own laws on its territory to reinforce its sovereignty; on the other, each country also tries to accommodate the needs and expectations of foreigners by selectively applying foreign law inside its borders, as it would be impossible to overlook the problems that would arise when rigidly applying any single solution. For this reason, a complicated system of laws exists that deals with the choice of law for each situation with an international element where different legal systems collide. These laws are then coordinated between different countries around the world by international treaties or various regulations within the EU. This system then makes it less probable that one country will refuse to acknowledge a judgment already issued by the other country.
What matters is not simply where you got married or where your child was born, as some clients assume. It is essential to assess all factors such as your nationality, your habitual residence, and individual treaties between countries in order to determine the correct body of laws to be used. To make sure that you get the best advice, you should seek a lawyer who is experienced in family law cases with an international element.
In the next part of this article, I provide some background information about the rules that apply in family law cases in the Czech Republic.
2) Child support – an obligation with/out a court ruling
While it is not surprising that parents have an obligation to materially support their children, some people might be surprised that this obligation exists even without an explicit court judgment under Czech laws. When parents decide not to raise a child together but rather one parent assumes the day-to-day responsibilities, the other parent should financially participate, even unprompted. Even in cases in which parents agree that no child support will be paid out between them, due to the lack of funds of one parent or for any other reason, the obligation still exists and later the court might demand such child support even retroactively if it deems that it is in the child’s best interest.
Another thing that might surprise some people is that child support is not paid to the child but rather to the attention (bank account) of the parent who has custody of the child. Unless the child is already of age, the parents are responsible for handling the financial decisions and administering the finances; it is not sufficient to give a child the money directly or even to save it for the child in a special account. That is of course not to say that such forms of payment cannot be made in addition to regular child support payments.
Once the courts establish a child support obligation by a judgement, it should be noted that late payments are not advised! The decision can be enforced by the court, and neglecting to pay mandatory support carries criminal penalties so a failure to pay child support for some months can result in criminal prosecution.
3) Child custody ≠ sole proprietorship. Beware of crossing borders.
When parents decide to split up, a decision has to be made regarding the child’s living arrangements by the court or by the parents themselves. Most people understand that the parent with custody rights gets to make most of the day-to-day decisions, and the other parent is entitled to regular contact with the child, but some people think of the arrangement as a sole proprietorship. That is not the case at all! The other parent is no less of a parent and still has an equal say in all the important decisions in the child’s life.
Some people might be very surprised if their unilateral decision to move towns with the child for work or even to move to a different country entirely to be closer to their family is challenged in court by the other parent. That is because the decision of where the child gets to live or what school they go to is an important decision that needs to be made with the mutual agreement of all parties concerned, or the party changing the agreed-upon status quo needs to get the permission of the court first.
Moving to a different country is not only depriving the other parent of their say in such matters; it is considered an international abduction with legal consequences. Moving out of the country without the other parent’s or court’s permission is a criminal offence in most countries.
4) Divorce = up to 3 separate court rulings
When dealing with a divorce, some people are surprised that three separate proceedings need to be initiated. The very first proceedings to take place are the ones concerning child custody. The court’s primary concern is for the child’s well-being and the court always rules with the child’s best interests in mind. The parents’ interests are also considered but they are not a priority.
Only after there is a ruling in the matter of child custody or a court-approved agreement can the court decide in the matter of divorce. The divorce proceedings can then be expedited if the spouses mutually agree to divorce and if they settle their joint property of spouses. If there is no such an agreement, the court has to first decide on the grounds for the divorce. Only then, in the third proceedings, can the joint property of spouses be settled.
5) A visit from social services is a common practice
Regarding child custody, some people are very surprised when a social department official contacts them and later shows up at their doorstep to assess whether the child’s living conditions are suitable.
When the court proceedings for custody are initiated (during a divorce or even outside of it, with single parents), children obviously cannot represent themselves and neither of the parents can be considered impartial enough to represent them. The court appoints a legal guardian, OSPOD (the Social Department) or the Office for Social and Legal Protection of Children, to represent the child during the proceedings.
The social department official assigned to the case then individually investigates the best course of action for the child, whether each parent can provide suitable living conditions for the child, etc. This official will also participate in the custody proceedings, making recommendations to the court on behalf of the child. It is therefore advisable to cooperate with the social department as requested.
6) Child’s own opinion can be heard
Among other things, the social department official will inquire after the child’s opinion on the matter and presents this opinion to the court.
The weight of the child’s opinion increases proportionally with their age, and older children can even be heard before the judge. Especially for younger children, the social department official is the person who makes it possible for children to express themselves while shielding them from the direct impact of the stress of the courtroom.
7) The law presumes the father. Maybe differently than you’d like.
If you are recently divorced and expecting a child with a new partner, you should be made aware of the way Czech law presumes paternity. As the old Roman law principle goes: Mater semper certa est pater nunquam, or The mother is always known, the father never.
To determine paternity, Czech law applies three successive presumptions. It must be then kept in mind that Czech law prefers stability and certainty in the child’s life, sometimes even over biological bonds.
First, it is presumed that from the day of the conclusion of the marriage till the 300th day after its dissolution, the mother’s husband is the child’s father. If this presumption cannot be applied, then it is presumed that the man who declares paternity in agreement with the mother is the father. If there is no such declaration, it is then presumed that the man with whom the mother has had relations within the period between 160 and 300 days before the child was born is the father of the child. This third presumption can only be applied in court proceedings.
It is possible to dispute these presumptions, but only within specified periods that are usually 6 months long and that end by the child’s sixth birthday at the latest. If one of the presumptions incorrectly applies to you, it is recommended to seek legal remedy immediately.
8) No prenup?
If you and your spouse both reside in the Czech Republic, then your mutual property relations may be governed by Czech law. It would therefore be beneficial to know at least the basics of how Czech law deals with property relations between you and your spouse or any third person.
A question I have been asked frequently is whether there is a special relationship established by mere cohabitation of two people. No such institution exists in Czech law and the joint property of spouses is created only after marriage.
Unless there is a prenuptial agreement or the court stipulates otherwise, the statutory regime applies. In a statutory regime (=following the basic rules written in the code of law), the property owned by one spouse before the creation of the joint property remains their exclusive property. Anything that was acquired during the marriage by one of the spouses individually or both spouses jointly is the joint property of spouses. This includes any profits from a property belonging exclusively to one of the spouses. Any shares in a company or cooperative acquired during the marriage are also included in the joint property.
Excluded from this general rule is property acquired as a gift, inheritance, or legacy. Also, special cases of compensation for harm (awarded by a court ruling), compensation for damage, destruction, or loss of the exclusive property of one of the spouses, and whatever was acquired by one of the spouses by a juridical act relating to their exclusive property are all excluded. Part of the exclusive property is also anything that serves the personal needs of one of the spouses.
9) Who makes decisions on the joint property?
The administration of joint property in the statutory regime can be divided into two categories. The first is administration in common matters, the second is in matters that cannot be considered common.
In common matters (like who gets to use the car on an everyday basis, buying groceries, etc.) each spouse can act without the other’s explicit approval as both of the spouses manage and administer the property as agreed. Any such juridical acts relating to joint property oblige and entitle both spouses jointly and equally.
In matters that cannot be considered common, like buying or selling a house, the spouses can only act with each other’s consent. The administration of the joint property relies largely on trust between the spouses, since if one spouse does not consent, the non-consenting spouse might need to prove that there was no consent given.
10) Prenup as according to Czech law
If the statutory regime generally described above is not to your liking, it is possible to conclude a prenuptial agreement that allows you to set up your property relations in marriage differently.
While the possibilities of potential agreements are endless as the law permits even special rules for any individual thing that may potentially become a part of the joint property, there are three main frameworks.
The first framework is the separate property regime, which allows for the spouses to have basically the same property relations as while unmarried. The second reserves the creation of the joint property of spouses as of the date the marriage ends. This allows spouses to freely manipulate their property during the marriage in the same way they would while unmarried, but also to divide the property fairly if their marriage ends. This might be useful for people who regularly trade real estate. The third main framework is one that simply extends or reduces the scope of the statutory regime, by for example including in it a house that is exclusively owned by one spouse that the spouses decide to live in together.