Comparison of legislation concerning the establishment and determination of parentage in the Czech Republic and the Kingdom of Belgium SUMMARY The purpose of my thesis is to compare two different, yet somehow similar systems of civil law. Reason for choosing this particular topic (creation of filiation) is because I consider it a very important moment in life of every individual. My thesis is composed of eight chapters, each of them dealing with different part of the main topic. Each chapter is also divided into three parts, each of them studies one particular legislation, because not only this thesis compares Czech and Belgian law, but also examines differences between Czech current legislation (mainly law concerning familial relations and marriage) and future one - the Civil Code which will take effect from 1. 1. 2014. Chapter one is destined to present main reasons and the interest of law on the definition and regulation of the notion "family". Part one describes the problematic from the view of Czech law, part two deals with the same theme, but by Belgian law. Chapters two and three both examinate the issue of determination of motherhood, including problematics of surrogate mothers. In fourth chapter, also subdivided into three parts, I concentrate on legal presumptions of paternity and on possible ways...

O presente trabalho tem por objetivo analisar o instituto jurídico da filiação nas famílias contemporâneas no Brasil. Para tanto, será contextualizado como está o Direito de Família na atualidade, com as principais alterações que vem sofrendo, como o reconhecimento da união homoafetiva como entidade familiar. Para embasar toda evolução sofrida nesse campo é que se optou por tratar de princípios protetivos do Direito de Família. Desta forma, o ponto de partida deste trabalho será a Constituição Federal de 1988 e o Código Civil de 2002, com as reformas por ele sofridas. Na sequência, serão tratadas as relações de parentesco e de filiação, analisando as espécies de filiação admitidas no ordenamento jurídico pátrio e, ainda, a Resolução do Conselho Federal de Medicina que disciplina as técnicas de reprodução assistida. Ainda neste capítulo será discutido se existe prevalência ou não entre as espécies de filiação admitidas no Código Civil atual e a possibilidade de conhecimento da origem genética autorizada pela lei de adoção. A escolha do tema se deu em razão de, na atualidade, mais especificamente após o ano de 2012, ter sido admitido pela via jurisprudencial, a possibilidade de coexistência de filiação biológica e socioafetiva, sem que uma exclua a outra, originando a denominada multiparentalidade. A jurisprudência, no início, foi reticente com relação à temática, mas em julgados atuais (que são trazidos no corpo deste trabalho) tem sido admitida a multiparentalidade, em especial em casos de adoção, inseminação artificial heteróloga e a filiação socioafetiva ao lado da biológica de forma geral. Assim, analisam-se aqui as formas de reconhecimento e desconstituição da filiação, casos de multiparentalidade em concreto, o conceito do instituto jurídico da multiparentalidade, a possibilidade jurídica de seu reconhecimento no ordenamento pátrio, bem como os efeitos decorrentes de tal admissibilidade. O procedimento metodológico aqui utilizado foi a pesquisa bibliográfica tanto do ordenamento jurídico brasileiro, quanto em alguns ordenamentos estrangeiros. / This research study aims at analyzing the right of parentage in contemporary families in Brazil. In order to do that, Family Law is contextualized nowadays, showing the main changes that it has been going through, such as the recognition of homosexual union as a family. To support the arguments for such an evolution, it has been opted to show some principles concerning Family Law. Hence, the starting point of this study is the Brazilian Federal Constitution of 1988 and the Civil Code of 2002 as well as its reformulations. Subsequently, parenting relation and the right to parentage will be focused on, analyzing the types of parentage admitted in the Brazilian Law. Besides that, this research study will mention the Resolution of Federal Medical Council, which regulates the techniques of assisted reproduction in Brazil. Moreover, in this chapter it shall be discussed the existence or not of any prevalence among the types of parentage currently admitted in the Civil Code and the possibility of knowing the genetic origin permitted by the adoption law. This research topic has been developed due to the fact that nowadays, more specifically after the year of 2012, jurisprudence has admitted the possibility of coexisting both parentage types: the biological and the affective ones, without the exclusion of one of them, which causes the so called multiparenthood. The jurisprudence, at the beginning, was very reticent with regard to this issue, but, in recent decisions (which are carried in this research study) the multiparenthood has been admitted, especially in cases of adoption, heterologous artificial insemination and affective parentage as well as the biological parentage, in general. Thus, the study analyzes ways of recognizing and desconstituting parentage, real cases of multiparenthood, as well as its concept, the possibility of its recognition in the Brazilian Law and the effects that may arise from this admission. The methodological procedure used here was the bibliographic research with regard not only to the Brazilian law, but also to the law of some foreign countries.

O presente trabalho tem por objetivo analisar o instituto jurídico da filiação nas famílias contemporâneas no Brasil. Para tanto, será contextualizado como está o Direito de Família na atualidade, com as principais alterações que vem sofrendo, como o reconhecimento da união homoafetiva como entidade familiar. Para embasar toda evolução sofrida nesse campo é que se optou por tratar de princípios protetivos do Direito de Família. Desta forma, o ponto de partida deste trabalho será a Constituição Federal de 1988 e o Código Civil de 2002, com as reformas por ele sofridas. Na sequência, serão tratadas as relações de parentesco e de filiação, analisando as espécies de filiação admitidas no ordenamento jurídico pátrio e, ainda, a Resolução do Conselho Federal de Medicina que disciplina as técnicas de reprodução assistida. Ainda neste capítulo será discutido se existe prevalência ou não entre as espécies de filiação admitidas no Código Civil atual e a possibilidade de conhecimento da origem genética autorizada pela lei de adoção. A escolha do tema se deu em razão de, na atualidade, mais especificamente após o ano de 2012, ter sido admitido pela via jurisprudencial, a possibilidade de coexistência de filiação biológica e socioafetiva, sem que uma exclua a outra, originando a denominada multiparentalidade. A jurisprudência, no início, foi reticente com relação à temática, mas em julgados atuais (que são trazidos no corpo deste trabalho) tem sido admitida a multiparentalidade, em especial em casos de adoção, inseminação artificial heteróloga e a filiação socioafetiva ao lado da biológica de forma geral. Assim, analisam-se aqui as formas de reconhecimento e desconstituição da filiação, casos de multiparentalidade em concreto, o conceito do instituto jurídico da multiparentalidade, a possibilidade jurídica de seu reconhecimento no ordenamento pátrio, bem como os efeitos decorrentes de tal admissibilidade. O procedimento metodológico aqui utilizado foi a pesquisa bibliográfica tanto do ordenamento jurídico brasileiro, quanto em alguns ordenamentos estrangeiros. / This research study aims at analyzing the right of parentage in contemporary families in Brazil. In order to do that, Family Law is contextualized nowadays, showing the main changes that it has been going through, such as the recognition of homosexual union as a family. To support the arguments for such an evolution, it has been opted to show some principles concerning Family Law. Hence, the starting point of this study is the Brazilian Federal Constitution of 1988 and the Civil Code of 2002 as well as its reformulations. Subsequently, parenting relation and the right to parentage will be focused on, analyzing the types of parentage admitted in the Brazilian Law. Besides that, this research study will mention the Resolution of Federal Medical Council, which regulates the techniques of assisted reproduction in Brazil. Moreover, in this chapter it shall be discussed the existence or not of any prevalence among the types of parentage currently admitted in the Civil Code and the possibility of knowing the genetic origin permitted by the adoption law. This research topic has been developed due to the fact that nowadays, more specifically after the year of 2012, jurisprudence has admitted the possibility of coexisting both parentage types: the biological and the affective ones, without the exclusion of one of them, which causes the so called multiparenthood. The jurisprudence, at the beginning, was very reticent with regard to this issue, but, in recent decisions (which are carried in this research study) the multiparenthood has been admitted, especially in cases of adoption, heterologous artificial insemination and affective parentage as well as the biological parentage, in general. Thus, the study analyzes ways of recognizing and desconstituting parentage, real cases of multiparenthood, as well as its concept, the possibility of its recognition in the Brazilian Law and the effects that may arise from this admission. The methodological procedure used here was the bibliographic research with regard not only to the Brazilian law, but also to the law of some foreign countries.

This thesis explores children's perceptions of their ability to participate in decisions that directly affect them following parental separation. Taking a postmodern approach, the thesis argues that the concepts of 'the child' and 'childhood' are social constructs produced by discourses that have arisen from historical accounts of the position of children in 'adult' society. The knowledge thus produced constructs children as incomplete beings, vulnerable and unable to understand significant issues such as those associated with parental separation. Consequently, children are marginalised, 'othered' and denied the opportunity to participate in decisions that directly affect them. After reviewing the ways in which discourses operate to subjectify children in this way, the thesis explores an alternative construction of children as competent and resilient, able to participate with their adult counterparts in decision-making activities. The potential for the provisions of both the United Nations Convention on the Rights of the Child and the Australian Family Law Reform Act 1995 to reconstruct children in this way is explored. Reviews of the literature indicated that Australian children had not been included in research and discussions about their involvement in decisions that directly affected them. Consequently, this research undertook in-depth interviews of sixteen children between the ages of 7 and 17 years. Their views about their abilities to participate in decisions that directly affect them are reviewed in relation to the different discourses identified in the literature. The extent to which children?s understandings reflect these discourses is considered. The thesis argues that much is still to be achieved. A review of the findings includes an account of the difficulties experienced in recruiting children for this project and suggests that the social construction of children continues to position them as vulnerable and incompetent. It is argued that the constructs of 'competence', 'age' and 'maturity' are not useful indicators of children's abilities to make decisions; thus, a 'new' construction of children, based on greater adult understanding of their unique experiences and understandings, is suggested. In relation to decisions that affect children following parental separation, the thesis makes a number of suggestions that support an exploration of creative initiatives that reflect the children's views. / PhDSocialScience

The present study examined the efficacy of a self-help guide in the area of marital separation and divorce. The guide itself was written after an extensive series of interviews with people undergoing separation and professionals such as lawyers and counsellors who deal with separating people as part of their working day. The experiment demanded firstly a thorough investigation of two major areas viz.(a) the new Family Law Act and its effects, and (b) the current trend to self-help in many areas of our society. The particular style of self-help under investigation was help through reading-bibliotherapy. A factor analysis was performed in order to determine which facets of separation most required attention from those who have separated or are about to separate. Methodology involved using three groups matched for certain characteristics to test for changes after bibliotherapeutic interventions. The failure to find statistically significant results was discussed in terms of methodological problems. Socially significant results emerged as implications for welfare practice, and possible legal changes were examined.

The number of multi-million dollar divorce settlements has been increasing rapidly in the last decade. Although Donald Trump's divorce from his first wife, Ivana, wherein $25 million was awarded to the former spouse, may have seemed like a significant sum in 1992, this amount appears quite minuscule today.1 In December of 2011, Mel Gibson's soon to be ex-wife Robyn Moore received $425 million in the couples' divorce settlement.2 In March of 2012, Frank McCourt was forced to sell his professional franchise, the Los Angeles Dodgers, in bankruptcy during his divorce proceedings with Jamie McCourt.3 It seems as if every month we hear details of another celebrity divorce settlement involving hundreds of millions of dollars, begging the obvious question: do athletes and celebrities who stand to make fortunes during a contemplated marriage, need to be more aware of the consequences of divorce and how to better protect themselves in such a case, before repeating the words "I do"? 1 Joanne Kaufman, "The Art of the Divorce," People,http://www.people.com/people/archive/article/0,20105577,00.html (accessed April 19, 2012). 2 Ken Lee, "Mel Gibson's Ex Wife Takes Half His Estimated $850 Million in Divorce Settlement," People, http://www.people.com/people/article/0,20556666,00.html (accessed April 19, 2012). 3 Stephen Dunn, "Why the McCourt Marital Agreement Failed," Forbes,http://www.forbes.com/sites/stephendunn/2011/12/14/why-the-mccourt-marital-agreement-failed/ (accessed April 19, 2012).

Throughout Islamic history, Islamic schools of law (madhāhib) enjoyed tremendous authority. In addition, traditional religious institutions that have taught the doctrines of the various Islamic schools of law have also wielded similar authority within the Arab-Muslim states. However, Arab-Muslim intellectuals challenged the authority of these madhāhib both from within the madhāhib and from outside of them. As a result, consensus (ijmā`) reached by past jurists of the madhāhib, has also been challenged in favor of a new type of ijtihād known as collective ijtihād. This new method of ijtihād allows professional women to participate in the process of lawmaking alongside men as reforms are made to Islamic family law. As a consequence of this legal process, the authoritarian method of traditional consensus (ijmā`) has been weakened in favor of more inclusive methods which allow for the creation of laws that are more favorable to women. Over the course of the twentieth century there has been a dynamic and ongoing debate within both traditionalist and reformist circles of Arab-Muslim society regarding the topic of marriage. Muslim conversations regarding the marriage contract demonstrate that the debates over family law in general, and the marriage contract in particular, are complex and challenging. The fact that not all Arab-Muslim intellectuals and muftīs share the same opinion regarding the legal age of marriage for women, the role of the marriage guardian (walī) in marriage, or the right of women to conduct their own marriages, for example, illustrates this point. Even individuals from within the same Islamist party have vastly differing opinions. While some argue for the preservation of the Islamic tradition by the continued restriction of a wife's role in her marriage, others want to grant women broader agency in some aspects of the marriage contract. All intellectuals, traditionalists, Salafis, and reformists, however, draw on past Islamic authority--the Qur'anic text, the Sunna of the Prophet, and past jurists' opinions--in order to legitimize their argument in an effort to preserve the identity of Muslim society and its core foundation, the Muslim family. Chapter one of this dissertation introduces the origins of Muslim jurists' opinions and rulings in Islamic jurisprudence (fiqh). While the chapter outlines the opinions of the majority of jurists regarding the age of puberty (bulūgh) for men and women, the age of financial competency (rushd), and the legal age of marriage, it also illustrates the opinions of minority jurists who reject the marriage of minors outright. Chapter two demonstrates the opinions of numerous Arab-Muslim intellectuals, as well as the codification of some of the Arab-Muslim states' Personal Status Laws (PSLs), and the debates among intellectuals along with the evidence they cite to justify their opinions. Chapters three and four are concerned specifically with debates among Moroccan intellectuals. They also include a discussion of the history of debate over the Moroccan Mudawwana from its initial publication in 1957 through the present day. The chapters discuss the opinions of Moroccan intellectuals regarding some of the Articles of the Mudawwana and show the evidence presented by each side both for and against reforming the Mudawwana. Chapters three and four also present the opinions of intellectuals voiced during personal interviews I conducted in 2013. These interviews show how complex the task of compartmentalizing the various Arab-Muslim intellectuals' opinions may be when seeking to label them either traditionalist or reformist with respect to their views on the rights of women in marriage.

This paper deals with the legal situation surrounding the legal statutory portion. The purpose of this paper is to investigate the statutory portions function in our society, does the rule fit into today’s society? To carry out this study, the authors analyzed the legal situation accordingly to the legal dogmatic method. Emphasis has been placed especially on laws but also non-government bills and doctrine.The statutory portion was introduced in the Swedish system, as early as in the 17th century. Its primary purpose then was to ensure a heritage to the descendants’ heirs. At this time most people died at a young age and their children were often young and incapable of supporting themselves. Today, it is more unusual to leave minor children, and it its more common to die of old age with already adult chil-dren. The statutory portion, which has as a purpose to ensure that parts of the de-scendants inheritance shall rightly fall to its heirs, is found today in 7 chapter 1§ ÄB .In recent years, a large number of non-government bills and government bills has been presented with proposals for the abolition of the statutory portion. Different writers express their view on the statutory portion as outdated and that the system does not fit into our society. Those who find the statutory portion outdated also express the meaning that statutory portion stands in conflict against both property law and the descendants last will.The authors consider the need for an investigation on the matter to determine whether the legal portion is outdated and no longer fulfills its purpose, or if it still is adapted to our modern society. / Denna uppsats behandlar den rättsliga situationen kring laglottsskyddet. Syftet med uppsatsen är att utreda laglottens funktion i dagens samhälle, är regeln anpas-sad efter dagens rättsliga behov? För att genomföra denna undersökning har för-fattarna analyserat det rättsliga läget i enlighet med den rättsdogmatiska metoden. Tyngd har lagts särskilt på lagtext men även motioner och doktrin har spelat en viktig roll.Laglotten infördes i det svenska systemet redan på 1800-talet. Dess främsta syfte var då att säkerställa ett efterarv för den avlidnes bröstarvingar. På den här tiden dog de flesta i ung ålder och de barn som efterlämnades var ofta unga och oför-mögna att själva försörja sig. Idag är det mer ovanligt att den som avlider efter-lämnar omyndiga barn, oftast dör vi idag i en hög ålder och våra barn är då själva redan vuxna. Laglottsskyddet, vilkets innebörd är att viss del av en avlidens arv skall tillfalla dess bröstarvingar, hittas idag i 7 kap 1§ ÄB.Under de senare åren har ett stort antal motioner och propositioner lagts fram med förslag om ett avskaffande av laglotten. Olika skribenter utrycker en åsikt om att laglotten är föråldrad och att systemet inte passar in i vårt samhälle. Det menas också att laglotten strider emot både egendomsrätten och den avlidnes sista vilja.Författarna anser att det behövs en utredning på området, för att fastställa huruvida laglotten är föråldrad och ej längre uppfyller sitt syfte, eller om den än idag är anpassad till vårt samhälle. Efter en utredning finner författarna att en re-form av laglotten kan finnas nödvändig.

This thesis explores children's perceptions of their ability to participate in decisions that directly affect them following parental separation. Taking a postmodern approach, the thesis argues that the concepts of 'the child' and 'childhood' are social constructs produced by discourses that have arisen from historical accounts of the position of children in 'adult' society. The knowledge thus produced constructs children as incomplete beings, vulnerable and unable to understand significant issues such as those associated with parental separation. Consequently, children are marginalised, 'othered' and denied the opportunity to participate in decisions that directly affect them. After reviewing the ways in which discourses operate to subjectify children in this way, the thesis explores an alternative construction of children as competent and resilient, able to participate with their adult counterparts in decision-making activities. The potential for the provisions of both the United Nations Convention on the Rights of the Child and the Australian Family Law Reform Act 1995 to reconstruct children in this way is explored. Reviews of the literature indicated that Australian children had not been included in research and discussions about their involvement in decisions that directly affected them. Consequently, this research undertook in-depth interviews of sixteen children between the ages of 7 and 17 years. Their views about their abilities to participate in decisions that directly affect them are reviewed in relation to the different discourses identified in the literature. The extent to which children?s understandings reflect these discourses is considered. The thesis argues that much is still to be achieved. A review of the findings includes an account of the difficulties experienced in recruiting children for this project and suggests that the social construction of children continues to position them as vulnerable and incompetent. It is argued that the constructs of 'competence', 'age' and 'maturity' are not useful indicators of children's abilities to make decisions; thus, a 'new' construction of children, based on greater adult understanding of their unique experiences and understandings, is suggested. In relation to decisions that affect children following parental separation, the thesis makes a number of suggestions that support an exploration of creative initiatives that reflect the children's views. / PhDSocialScience

Thesis title: Adoption of persons of full age - evolution and comparison of legislation from the General Civil Code to the Civil Code 2012 This master's thesis focuses on historical evolution of the legal institute of adoption of persons of full age, also known as adoption of an adult or adult adoption. This legal option returned to the Czech family law after more than 60 years of legal history, during which it was prohibited with regard to the former understanding of adoption. The restoration of adult adoption to the Czech legislation was caused by one of the main principles on which the new Civil Code is based, and that is a return to traditional understanding and interpretation of family law within European continental traditions. The first part of this thesis deals with historical evolution of the legal option to adopt an adult person since the ancient Rome epoch, where this institute came from. The adoption had a totally different purpose compared to these days. It served especially the needs of an adoptive father, who wanted to have a successor of his own kin and heir. Roman law later became a model for legislation in the continental Europe. Until the middle of the 20th century, it was allowed to adopt an adult as well as a minor in the Czechoslovakia. This historical epoch of our family law...