CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ WITH OR WITHOUT PRIVATE INTERNATIONAL LAW … under the term of public order at first sight, but its connection with this term is made due to the traditional understanding of the institute of marriage as a union between man and woman 38 . The Regional Court refers to previous case-law of the Supreme Administrative Court which lists the principle of monogamy and the best interest of the child as exemplary principles from the field of Family Law establishing the scope of public order. It adds that these are to be included because they are steady and unchanging norms, which have not been subject to amendments, and constitute pillars of the system at the base of Family Law 39 . The Regional Court then refers to the history of marriage in the Czech Republic to explain why marriage as a union of opposite sexes should be added to those principles 40 . The author thus does not see non-recognition of the marriage as an inevitable outcome of the law application but rather as a value choice of the administrative and judicial decision- making bodies which is not to be condemned through this article as it is an immanent part of every “hard case” adjudication. The outline of how the legal sources could have been applied differently to this case can be seen as an example supporting the argument of the preceding part. From how the law could have been applied differently with approaching the interpretation of meaning with different ideology, the critique now shifts to how the law should have been applied differently according to the deductive order of interpretation of legal sources. 6. The doctrinal wanting Despite the fact that all of the decision-making in the case has been based on the premises of Private International Law, the administrative bodies and courts apply this field of law as a marginal perspective of a supportive role. The administrative bodies deciding in the case treat the Act on Civil Registry in conjunction with the Civil Code as primary sources of their adjudication. The Act on Civil Registry does not provide reasons for rejecting an application, those can be argued solely by interpretation a contrario on the basis of non- compliance with the formal requirements of the proceeding. The provision of § 87 of the Act on Civil Registry was used to argue that the Special Civil Registry Office is allowed to reject a claim, while the provision of § 655 of the Civil Code has been used to argue the reasons for such rejection. Without proper argumentation using the provisions of the Act on PIL, it seems that any marriage normatively noncompliant with the Czech substantive law could be denied recognition in the Czech Republic, which presumption would go entirely against the meaning and essence of PIL. The argumentation lacked a reason to apply Czech law for qualifying the marriage as a non-marriage for the purpose of searching for the connecting factors within the provisions of the Act on PIL. To argue the choice of application of Czech law to the question of qualification the administrative bodies and the courts would need to argue and interpret § 20 of the Act on PIL (Qualification), which none of them did. Additionally, the only reason to reject an application for registration of foreign marriage for the substantive reasons under the applicable law is to activate the public order exception under § 4 of the Act on PIL. Instead, the consideration for public order exception was first introduced to the adjudication in the first instance of the judicial assessment when the Regional Court stated that public order is “a factor not explicitly mentioned but

38 Decision no. 29 a 122/2015-34, § 34. 39 Ibid. 40 Ibid. § 35.

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