CYIL vol. 10 (2019)

NICOLE ŠTÝBNAROVÁ CYIL 10 ȍ2019Ȏ v mezinárodním právu soukromém. Na základě výše uvedeného článek shrnuje, že uznávací činnost v případech uznání zahraničních manželství je českými soudy a úřady vykonávána na základě mezinárodního práva soukromého, ale bez jeho užití. Key words: Private International Law, Same-sex Marriage, Recognition of Personal Status, Public Order, Legal Interpretation. About the Author : Nicole Štýbnarová is a PhD. candidate in the Erik Castrén Institute of Public International Law and Human Rights at the University of Helsinki. In her research the author focuses on intersections of Migration Law and Private International Law. This article is a result of the author’s collaboration in the international research group Young PIL Scholar. 1. Context Recognition of a personal status acquired abroad is an activity which occurs in a situation when the subject of law changes personal status in one state and attempts to register this status in another state. These situations can occur under various circumstances: someone has a citizenship or permanent residence in one state but travels to another state to marry, or temporarily resides in a state in which they have got married and aim to have this marriage and their change of personal status registered in the state of their citizenship (which then becomes the state of the forum). It can also occur when someone has been married and living in one state and now moves to another state with their partner and aims to be regarded as a married person in this state (the forum state). These marriages can be categorised as marriages with an international element, i.e. they include a legal connection to more than one state. For the international element immanent to these marriages, the conditions allowing them to have effect in both (or several) states concerned are regulated by the provisions of Private International Law (PIL), which is usually defined as a field of law regulating legal relations with an international element 1 . Recognition of a personal status acquired abroad is one topic of PIL currently receiving much attention from European PIL scholars. A particularly puzzling aspect to the recognition of foreign personal statuses arises when the normative requirements for the legal situation causing the change of status differ between the country where the actual change of status occurred and the country where the recognition claim is submitted. In the cases of foreign marriages, a hurdle to the usually smooth recognition process might occur when the country where the marriage was celebrated stipulates different normative aspects or constitutive elements to a marriage as opposed to the country of forum, i.e. the country where the parties to the marriage have applied for recognition of their marriage. One challenging situation of this kind can be the claim of an applicant residing in a Western European country for recognition of a polygamous marriage which he concluded in a country where these marriages are legal. This challenge to the doctrinal interpretation of PIL connected with a need for balancing of interests in the given cases currently occupies 1 Further information on recognition under Czech Private International Law can be found e.g. in ONDŘEJ, Jan: Mezinárodní právo veřejné, soukromé a obchodní , 3. vydání, Plzeň: Aleš Čeněk, 2009, p. 283 [International Public, Private and Business Law]; KUČERA Zdeněk a spol .: Mezinárodní právo soukromé , 8. vydání, Plzeň: Aleš Čeněk, 2015, p. 328 [Private International Law].

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