Same-sex unions and family rights: parenting and adoption

Raising and adopting children

A significant breakthrough in the legal status of same-sex couples was brought about by an amendment to the law on foster care. Partners are now allowed to become joint foster parents, bringing their legal status closer to married couples who have long had this option. The joint fostering of partners thus represents a further step towards breaking down persistent legal inequalities.

With regard to adoption, the amendment has brought about a partial shift, although same-sex couples still do not have the option of traditional joint adoption of children that married couples have. However, a completely new law has been introduced, the so-called “co-adoption”, which allows the other partner to adopt a child already living within their family union. A typical example is when a child is born in a partnership between two women. The biological mother is automatically the woman who gave birth to the child, while the other partner has no legal relationship to the child. If the father of the child is not listed on the birth certificate, the other partner can legally adopt the child. This process requires the consent of the biological mother and a court-appointed guardian of the child. After successful adoption, the other partner acquires all parental rights, including decisions about the child’s education, health care and day-to-day affairs.

In the case of the adoption of children from children’s homes, the amendment did not introduce any major changes. Same-sex couples still cannot adopt a child together. However, since 2016, one of the partners can adopt a child as an individual. This possibility was opened up by a ruling of the Constitutional Court, which found that the ban on adoption by registered partners was discriminatory. However, a child who has been adopted in this way by one of the partners can subsequently be adopted by the other partner if he or she meets the condition of so-called legal freedom, which means that the child has no other legally recognised parents.

Despite these advances, significant legal obstacles remain. If adoption does not take place, the other partner has no legal rights or obligations to the child. This is true even if the child has lived with the partner for a long time and considers him or her to be his or her parent. This situation creates complications in everyday life, for example when visiting the doctor, when the child is hospitalised or when making decisions about his/her healthcare. The other partner does not have the authority to act in the child’s best interests without an adoption, which can lead to unnecessary administrative problems and stressful situations.

Ultimately, the amendment represents a significant step forward, but it also highlights the persistent differences in the legal status of same-sex couples and marital unions. It is clear that the process of equalisation will continue, both at legislative and societal level.

What if I legally adopt a child elsewhere?

Many countries already allow gay couples to legally adopt children, which raises the question of how Czech authorities view adoptions abroad. This issue is particularly relevant for same-sex couples who decide to adopt a child in a country where such practice is not restricted. For example, how would the Czech authorities treat the adoption of a child by a Czech citizen and his/her foreign partner if the adoption took place in the USA? The answer is not straightforward, as Czech law sets strict rules in this respect.

The Czech judiciary generally refuses to recognise a foreign decision on the adoption of a child by a same-sex registered couple if the decision is contrary to Czech law. In 2016, this position was confirmed by a ruling of the Constitutional Court, which rejected a motion by the Regional Court in Prague to annul certain provisions of the Private International Law Act. The proposal sought recognition of foreign adoptions by gay couples on the basis of protection of family life and the best interests of the child. However, the Constitutional Court stated that the legislator has the right to establish rules for adoption and at the same time to prevent these rules from being circumvented through foreign legislation.

The case at hand concerned a Czech citizen and his partner from Trinidad and Tobago who lived in the United States. They had adopted two children with US citizenship in New Jersey. The couple feared legal complications when travelling to the Czech Republic and therefore applied to the District Court in Nymburk for recognition of the adoption. However, the court rejected their request, citing a provision of the Private International Law Act that prohibits the recognition of decisions contrary to Czech law and public policy. The Regional Court in Prague, which heard the appeal, concluded that this condition was unconstitutional because it did not allow it to reflect the real state of affairs and protect the family life of the adopted children. It therefore appealed to the Constitutional Court, which rejected the application and confirmed that the Czech legal order has clearly defined limits in this area.

Under the current law, a foreign adoption can only be recognised if it is in accordance with Czech law and public policy. This means that the Czech authorities will not accept an adoption carried out by a same-sex couple if both partners are not considered legal parents in the Czech legal system. In practice, this means that if a child is adopted abroad by only one of the partners, for example the biological father or the only legal parent, his or her parentage will be recognised in the Czech Republic. However, the other partner will have no legal rights or obligations towards the child.

This situation creates major legal uncertainties for same-sex couples. If the other partner is not legally recognised as a parent, problems arise not only in arranging care for the child, but also in basic administrative tasks such as enrolling the child in school, deciding on health care or travelling abroad.

Current legislation suggests that recognition of a foreign adoption may be possible if one of the partners acts as the sole adoptive parent. However, this situation does not address the issue of full legal protection for both partners and their children. Many experts, including lawyers and human rights defenders, point out that this situation is contrary to the best interests of the child, who should be entitled to legal protection from both parents.

While the 2025 amendment to the law has brought some improvements in the rights of same-sex couples, the issue of recognition of foreign adoptions remains open and requires wider social and political debate.

What if the partnership doesn’t work out?

Like any other cohabitation between two people, a same-sex union may not last forever, and separation is a real possibility. Until now, the process of ending a civil partnership has differed from dissolving a marriage in its simplicity and speed. Partners petitioned the court to dissolve the partnership, and the process was often more formal and less complicated than divorce. However, with the amendment to the law effective from 2025, the rules have changed and the dissolution of a civil partnership is now more akin to the traditional divorce process. This change is intended to provide greater legal protection and clear rules, particularly in situations where there are child custody issues or property disputes to be resolved.

In cases where the partners have joint custody of a child, for example in the context of an adoption, the court must decide on the custody arrangements when the partnership is dissolved. The procedure is similar to that for dissolution of marriage. The court considers the sole custody of the child by one of the partners, alternate custody or another form of custody, always taking into account the best interests of the child. A key criterion in the decision is maintaining stability and ensuring emotional and material care for the child. The court also regulates the other partner’s access to the child and any maintenance that the non-custodial partner is obliged to pay.

Another major change is the way in which property relations are resolved when a partnership is dissolved. The amendment introduces rules similar to those applicable to spouses on divorce. If the partners have acquired joint assets during their cohabitation, such as real estate, savings or other valuable assets, these assets must be settled. If there is an agreement, the partners can divide the property according to their own preferences. However, if they do not agree, the court will decide on the division, taking into account in particular each partner’s share of the community property, their needs and other relevant circumstances.

In addition to property issues, disputes may arise over housing. For example, if the partners jointly occupied a property that one of them owned, the court may decide that the other partner should stay in the property temporarily, taking into account his/her situation or the needs of the children. These cases are usually dealt with on an individual basis, taking into account the specific circumstances.

The new rules emphasise the need for transparency and fairness in the termination of the partnership, but the introduction of formal rules also entails higher administrative and time costs. Same-sex partners must now expect that the termination of their union will not be as quick as before and may require active participation in court, especially if they cannot agree on key issues related to children or property.

A story from law practice

Several clients of our law firm, such as Petr and David, have already experienced the legal problems caused by the different legal regulations of homosexual unions across Europe. They met in 2010 when they were both working for an international company based in Germany. After several years of relationship, they decided to seal their union and in 2015 they got married in Denmark, one of the first countries to allow same-sex couples to marry.

When they returned to the Czech Republic a few years later, they discovered that their marriage was not legally recognised here. In order to enjoy at least the limited rights offered by the Czech legal system, they registered as partners in 2016. A few years later, however, their relationship began to sour. In 2023, they decided to dissolve their registered partnership in the Czech Republic. The process was relatively simple and financially inexpensive. They both believed that this put an end to their legal union altogether.

However, after the dissolution of the partnership, a major problem arose. Petr dealt with a lawyer from our law firm on some property issues abroad and was advised that their Danish marriage was still legally valid. The Czech dissolution of the partnership had no consequences for their original marriage in Denmark. They were de facto still married, at least in terms of Danish law. This situation forced them to take further legal action. They had to initiate divorce proceedings directly in Denmark, which involved many administrative formalities and the cost of hiring a local lawyer. The whole process took almost a year and cost them a lot of money and effort.

Can I claim maintenance from my ex-partner?

One of the areas where the rights of registered partners are similar to those of spouses is the issue of maintenance after the end of the partnership. Maintenance can be awarded to a former partner under certain conditions, either in the form of support in the event of material hardship or as compensation for the damage caused by the break-up. This arrangement reflects the desire to ensure a basic standard of living for the partners even after the end of their legal union.

The first case in which maintenance may be claimed is where one of the former partners finds himself in need and is unable to support himself. This situation may arise, for example, because of a disability, long-term illness, loss of employment or childcare which makes it impossible to work. Maintenance in this case depends on the ability and capacity of the other partner to contribute financially. In making its decision, the court takes into account not only the current financial and income situation of both parties, but also the duration of the partnership and the degree of interdependence of the partners during cohabitation.

The second type of maintenance that can be claimed is so-called penalty maintenance. This can be claimed by a partner who was not involved in the breakdown of the partnership and who has suffered serious harm as a result of the break-up. Punitive maintenance is a form of compensation for the adverse effects of the break-up, for example for the loss of standard of living or opportunities that were sacrificed during the duration of the partnership (for example, career breaks to care for the household or support the partner’s career). This type of maintenance is limited in time and can be awarded for a maximum of three years after the end of the partnership.

The court assesses a number of factors when deciding on maintenance, including the economic situation of both parties, the reasons for the separation and the overall circumstances at the time of the partnership. Maintenance is not automatically awarded and the former partner claiming it must prove the validity of the claim. In some cases, the court may decide on a lump sum financial settlement instead of a regular monthly payment, if the situation of both parties allows it and corresponds to their needs.