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Czechia

Czech family and succession law regulate three models of couples' relationships:

  • MARRIAGE between persons of the opposite sex

  • REGISTERED PARTNERSHIP between persons of the same sex

  • DE FACTO COHABITATION between persons of opposite or same sex

Marriage is regulated by the Civil Code (Act No. 89/2012 Coll., Book II). Registered partnerships is regulated by the Registered Partnership Act (Act No. 115/2006 Coll.). De facto cohabitation is not speciffically regulated in an statute.

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DISCRIMINATORY RULES

Marriage is confined only to opposite sex couples. The registration of a partnership is possible only for persons of the same sex. Registered partherships and de facto partnerships are not equal to spouses in regard to the property regime, for instance, they do not have the community of property, common dwelling, common lease of flats and the so-called usual equippment forming the common household. In addition, the spouses and registered partners are in the 1st class of heirs, while the de facto cohabitants are in the 2nd class of heirs.

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Links to applicable regulations

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MARRIAGE

  • Three are different matrimonial property regimes: the statutory one (community of property), contractual one, and one based on the court decision.

The new Civil Code allows marriage to be concluded only between a man and a woman. The new Civil Code paraphrases the previous regulations establishing that each spouse contributes to the needs of the family and the family household according to each’s personal and property conditions, abilities and possibilities so that the standard of living of all members of the family can be the same. Providing property has the same importance as personal care of the family and its members. Besides the duty to contribute to the needs of the family the law also establishes a mutual maintenance duty of the spouses, to the extent of a right to the “same living standard”. Recently, the legislator introduced the concept of the usual equipment forming the common household. It is established that, regardless of the ownership of things that fulfil the necessary life needs of the family, a spouse needs consent of the other one when dealing with them; this does not apply if the thing is of negligible value. A spouse may claim invalidity of a legal act by which the other spouse dealt, without his or her consent, with a thing belonging to the usual equipment of the family household.

The key concept of marital property law is community of property. It includes what one of the spouses has gained or what both spouses have gained in the course of their marriage except for:a) what serves the personal needs of one of the spouses, b) what only one of the spouses has gained by gift, succession or bequest unless the donor or the testator in the will expressed a different intention, c) what one of the spouses has gained as compensation for a non-proprietary infringement of his or her natural rights, d) what one of the spouses has gained by legal dealings relating to his or her separate property, e) what one of the spouses has gained as compensation for damage to or loss of separate property. Besides that, community of property includes profit from what is a separate property of one of the spouses. It does not include an interest of a spouse in a company or a cooperative if that spouse has become a member of the company or the cooperative in the course of the marriage, with the exception of housing cooperative. Community of property also includes debts.

The new Civil Code enables modifications of the legal regime of community of property as follows: a) a regime postponing the creation of community property as of the date the marriage terminates, and b) a regime constituting an extension of the scope of the statutory regime of community property, c) a regime constituting a reduction of the scope of the statutory regime of community property.

Besides that, future spouses and the spouses are allowed to create the agreed regime and establish the regime of separated property.

As an innovation brought about by the new Civil Code, they are allowed to make arrangements for the case of termination of marriage due to divorce.

A record (registration) of a contract on matrimonial property regime in the Public Register is optional. If it is not registered (and there is no consent of the third person), it has effect only inter partes. If a contract on matrimonial property regime is registered, it has effect erga omnes. It is not relevant matter whether or not third parties have been aware of the content or whether they actually know the existence of the contract: anyone must be aware of the existence of a contact (Seznam listin o manželském majetkovém režimu). Beside an optional recording (registration) in the Public Register, the law provides for the obligatory evidence (enrolment) of a contract on matrimonial property regime in the Database (Evidence listin o manželském majetkovém režimu). It shall be carried out by a notary public who has drawn up the contract on matrimonial property regime by means of remote access. The purpose is to make just evidence and retain data for future succession proceedings.

  • In Czech succession law, the principle of freedom of testator in the choice of heirs is recognised.

The decedent may determine freely to whom his property is left. Freedom of the testator is limited only to a certain extent by the rights of the forced heirs. Nevertheless, the decedent may disinherit them under the special circumstances.

If the deceased had joint marital assets, the notary – upon a communication from the parties – draws up a list of these assets and a list of joint liabilities, and determines the value of the assets. Assets disputed by the parties are disregarded. The surviving spouse then has the opportunity to reach an agreement with the heirs on the settlement of joint marital assets. The agreement on the settlement of joint marital assets property between the heirs and the surviving spouse must not contradict the law or the deceased's instructions set out in the disposition of property upon death. Otherwise the notary will not approve the agreement. If the notary does not approve the agreement on the settlement of joint marital assets, or if no such agreement is concluded, the notary settles joint marital assets itself. After settling joint marital assets, the notary draws up a list of the estate's assets and liabilities. In doing so, any contentious assets or liabilities are disregarded. The notary then appraises the value of assets in the estate, as a rule, according to concurring statements provided by heirs.

If the deceased did not leave a disposition of property upon death, the heirs may reach agreement on how to divide the estate in any way they wish. The court confirms the heirs' acquisition of inheritance under that agreement. In the absence of such an agreement, the court confirms their inheritance according to ratios derived from the law for intestate succession.

As an innovation brought about by the new Civil Code, the spouses are allowed to make arrangements for the case of death by making a contract of succession.

 

REGISTERED PARTNERSHIP

Only persons of the same sex are allowed to enter into registered partnership. The legal definition of registered partnership is applicable for the whole legal order. According to the Registered Partnership Act, some rights and duties of registered partners are similar to rights and duties of spouses (for instance provisions against domestic violence and regulating mutual maintenance duty). However, in many aspects the rights and duties are identical with the position of informal unions.

  • As regards the property of the registered partners, neither community of property is available, nor common lease of flats by operation of law, protection of family dwelling and protection by the provisions regulating usual equipment forming the common household. If registered partners own “something together”, there can be only co-ownership with shares between them. There is no special statutory regulation.

  • Under succession law, registered partners are intestate heirs in the same position as the spouses.

 

DE FACTO COHABITATION

There are no articles in the Civil Code establishing mutual rights and duties between the de facto cohabitees (e. g. there is no duty to help, no community of property, no protection of family dwelling and of a common household and no mutual maintenance duty). Due to traditions, there are no differences between the children at all, neither in personal, nor property spheres in the Czech legal order. The law protects property claims of unmarried mother of the child. 

  • In relation to propety ssues, if cohabitees own “something together”, there can be only co-ownership with shares between them. There is no special statutory regulation. As regards cohabitees, no community of property is available.

  • In the event of death, spouses have precedence in case of intestate succession over cohabitees.

A spouse inherits in the first class of heirs together with decedent’s children equally. Czech law does not provide any possibility to register cohabitation of different sex couples. Thus, cohabitees may inherit in second class of heirs only if descendant’s descendants do not inherit and if such partner lived with the decedent in the common household for at least one year before his death and, as a result, cared for the common household or were dependent in maintenance on the descendant.

Based on the national report prepared by Zdeňka Králíčková, Martin Kornel & Lucie Zavadilová