Czech Constitutional Court rules against same-sex couples in ongoing adoption battle

The court was divided in its ruling, but said that a different approach to changing the law has to be taken.


Written by ČTK Published on 26.07.2021 12:28:00 (updated on 26.07.2021) Reading time: 3 minutes

Brno, July 26 (ČTK) – The Czech Constitutional Court rejected the proposal of the District Court for Prague 5, which would have brought registered partnerships closer to the level of marriage. The ruling is available in the court’s online database.

The district court proposed annulling a Civil Code passage that generally stipulates which areas of rights and obligations related to marriage also apply to registered partnerships. The adoption of the child of a registered partner, which was primarily the subject of the proposal, is not among these rights.

The constitutional judges were not united in their opinion on the case. Most of them agreed that the proposal should concern more concrete parts of the Civil Code that concern adoption and do not mention registered partners.

The Constitutional Court had received several similar proposals from various Czech courts, which dealt with applications for one registered partner to adoption a partner’s child. In addition to the District Court for Prague 5, motions also came from the Plzeň-jih District Court and the Brno-venkov District Court. The constitutional judges dealt with the first of the series of proposals, which was the Prague one.

In all the proposals, there were a few words that made the provisions of the first, third and fourth parts of the Civil Code apply to both registered partnerships and marriages. In practice, this means that the registered partnership is affected by the first, general part of the Civil Code, and then by its part on absolute and relative property rights, but not the second part on family rights, including the regulation of adoption.

According to most constitutional judges, the petition for annulment should have focused more on specific sections of the Civil Code, which regulate adoption and do not mention registered partners. The official reason for rejecting the petition is then the ineligibility of the petitioners. The ordinary courts may propose for annulment only those paragraphs that they must apply in the present case and which they consider unconstitutional.

Judges David Uhlíř, Jan Filip, Josef Fiala and Radovan Suchánek took different positions on the Constitutional Court's ruling, particularly on the procedure and the reasons for the rejection. Uhlíř's opinion also took exception to discrimination on the grounds of sexual orientation.

All of the courts that have addressed the Constitutional Court have cases on their docket involving registered partners, one of whom has a child and the other of whom is seeking to adopt the child while preserving the rights of the parent. The aim of the partners is usually that the non-parent should have a legal relationship with the child – for example, maintenance or inheritance rights. However, the so-called adoption of the partner's child is not currently allowed by law.

In 2016, the Constitutional Court already opened the way for people living in a registered partnership to adopt a child individually. LGBT organizations welcomed the decision. At the time, the Constitutional Court struck down a provision of the law that explicitly prevented adoption by registered partners, even though unmarried same-sex couples could theoretically adopt a child as individuals. The ruling did not apply to joint adoption, which the Civil Code previously allowed only to married couples.

This year, the Constitutional Court rejected a proposal to repeal several words in the Private International Law Act. As a result, the Czech judiciary can no longer recognize foreign decisions on the adoption of a child by a same-sex registered couple. Czech legislation gives preference to married couples. According to the Constitutional Court, the attempt to prevent its circumvention through foreign decisions is legitimate.

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