CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ WITH OR WITHOUT PRIVATE INTERNATIONAL LAW … appellate claimed that the terminology of the Act on Civil Registry, using the different terms “marriage” and “registered partnership”, should be understood in the light of the preparatory works and thus seen as creating difference on the basis of different rights and duties legally associated with the unions, rather than on the basis of the sexes of the spouses. The City Council stated in the decision that the Special Civil Registry Office had (legally) evaluated the factual circumstances as part of its administrative discretion 14 . The City Council agreed with the evaluation conducted by the Special Civil Registry Office on the basis of systematic interpretation of the applicable acts. The systematic interpretation consisted of the following: § 655 of Civil Code defines marriage as a union of a man and a woman; the Act on Civil Registry states that marriages are registered in the marriage registry, where information such as […] of the man and woman enclosing the marriage is included 15 ; the body further argued that from the view of historical development, function and cultural understanding, marriage is clearly to be understood as a union of man and woman. Registered partnership, on the other hand, as defined in § 1(1) of the Act on Registered Partnership, is the union of two persons of the same sex; the Act on Civil Registry states that registered partnerships are registered in the registry of registered partnerships, where information such as […] of the partners enclosing the registered partnership is included; 16 registered partnership was brought into the Czech legal order in 2006 to allow same-sex couples to institutionalise their cohabitation. The Czech legislation, however, distinguishes between “these two relations and does not treat them equally. 17 The argumentation further states that the Special Civil Registry Office is in its activity bound by the legal order of the Czech Republic and is allowed to act only within the legal limits: with this in mind, the refusal to register a foreign same-sex marriage as a marriage is seen as an obligatory action.” 18 Both of the administrative decisions lack any explanation of the assumption that they are entitled to administrative discretion, consisting of legal evaluation of the normative circumstances. Furthermore, none of the authorities acknowledged that the fundamental reason why they can consider rejection of a registration of a foreign marriage for substantive reasons is the PIL provision for public order reservation. They also did not explain or apply the relevant provisions of the Act on PIL answering to why the foreign union at stake should be normatively characterized under the provisions of Czech law. The following instances reviewing this decision were two judicial instances, in which doctrinal awareness could be expected to be higher. 4. Judicial decision-making in the given case The first judicial instance to review the decision of the Special Civil Registry was the Regional Court in Brno, which found the claim unfounded 19 . The court focused on the distinction between marriage and registered partnership. As the spouses required the foreign marriage to be registered as a marriage, and thus registered in the marriage registry, their application could not be complied with as the Act on Civil Registry states that “the marriage

14 Decision of the Brno City Council, no. MMB/0217029/2015, p. 4. 15 Provision of § 20(1) of the Act on Civil Registry. 16 Provision of § 20a of the Act on Civil Registry. 17 Decision of the Brno City Council, no. MMB/0217029/2015, p. 5. 18 Ibid. p. 6. 19 Decision no. 29 a 122/2015-34.

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