Homework to be done before the lecture:

1) INDIVIDUALLY Read the following facts:

Czech national and Spain national, both men, wish to enter a marriage in Spain (where same-sex marriage is legal).  However, if one of the prospective spouses is not a Spanish national, it is a requirement under Spanish law that the couple submits a marriage eligibility certificate from the country of origin as proof that neither person is currently married and eligible to enter into a marriage.  In the Czech Republic, a request for a marriage eligibility certificate requires the name and gender of the intended partner. This requirement thus notifies the Czech authorities of the possibility that same-sex marriage will be contracted abroad.

The Czech national applied for this marriage eligibility certificate in July 2019, indicating that he intended to marry his partner in Spain. His request for the certificate was denied as the office stated that ‘it would be contrary to the Czech law according to which marriage could only be concluded between a man and a woman’. He contested the decision unsuccessfully in front of the Czech courts. Also, the Czech Constitutional Court dismissed his complaint on 1 September 2024.

Both partners repeatedly requested the responsible Spanish authorities to set the date of their wedding and for the relief of the eligibility certificate requirement. They failed.  Responsible authorities argue that Spanish legislation allows no relief or waiver of the requirement.  

2) INDIVIDUALLY Read all materials listed below ("Reading") and be prepared to discuss facts and argumentation of parties in all cases.

3) GROUP HOMEWORK: Consider all possible arguments that could be used in favour of the applicant and be prepared to present them. Mainly you should focus on Art. 8, 12, 14 of the Convention and consider:

a) Did Spain or the Czech Republic (or both) interfere with the family or private life (which one) of the partners (or one of them)? How?  Did those states interfere with other rights protected by the Convention?

a) Would such inference comply with obligations under EHRC? (brainstorm possible legitimate aim, proportionality, etc.) 

Consider the situation and arguments from the perspective of both - the government and the partners. 

Be prepared to present your thoughts and arguments.

Caselaw: