Family Law
In the context of family law, the most common job of a lawyer is the resolution of disputes between spouses, which relate to the custody of children, alimony or property, and most often takes place in connection with divorce proceedings. However, the services of a lawyer in this area of law are also used by people, who are not undergoing divorce proceedings, e.g. fiancés or spouses who wish to adjust their marital property regime. These are often sensitive matters that require a great deal of patience and questioning, as clients often do not talk about what is essential, on the contrary, they often emphasize things that bother them, but are not essential for the solution of the problem. Especially before initiating divorce proceedings, it is necessary to explain to the client what steps he or she will have to take or undergo, what are the options for a possible outcome, and discuss the possibilities of an amicable solution with the opposing party (divorce with an agreement between spouses, even if only on a part of the disputed points, is always cheaper and faster). If the conditions for an uncontested divorce under Section 757 of Czech Act No. 89/2012 Coll., the Civil Code, are not met, it is time to file a petition for divorce, usually together with a petition for modification of custody and determination of alimony for minor children. The division of property can be resolved only after the divorce, often a petition for the initiation of proceedings for the settlement of the joint property of spouses is filed months or even years after the divorce.
In addition to my experience with the above-described procedures, I specialize in family law primarily in marriages of foreigners or of spouses with two citizenships. Here, the role of the lawyer is much more important, also during the marriage or even before it is concluded. The general ideas of spouses (especially if they have been living in one state for a long time) about the legal consequences of their legal acts may be significantly different from reality when, for example, property is acquired as a gift or inheritance by one of the spouses during the marriage – it can be part of the joint property of the spouses in one legal system (in our country we speak of “joint property of spouses” – společné jmění manželů, SJM), but in another legal system it may fall within the property owned by both spouses. It is important to determine the law applicable to property matters of spouses, last but not least in order to prevent future problems, this can be done also in the form of a correctly executed choice of the applicable law between spouses.
Similarly, questions arise regarding alimony (especially for a minor child, but it may also be alimony for a spouse) in the case of divorce of spouses who have different citizenships, especially if they do not live with their child in the same country, or if the child’s country of residence changes over time. In such a case, maintenance may be determined by different applicable laws, that set different criteria for granting maintenance, as well as the range of entities who have to provide maintenance or who are entitled to maintenance. The determination of the competent court (whether it will be a Czech court or not) and the applicable law (i.e. the legal system that will provide answers to disputed questions) is therefore essential.
Family law legislation is currently contained in a number of legal norms of various origins and legal strength. For example, Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, which includes the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, has its origins in European law, and national legislation is contained primarily in Act No. 89/2012 Coll., Civil Code and Act No. 292/2013 Coll., on Special Judicial Proceedings. However, Act No. 91/2012 Coll., on Private International Law, also comes into play.
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