OMEZENÍ NUPTUAČNÍHO ZASTOUPENÍ NA ZÁKLADĚ POHLAVÍ A RŮZNICE STARŠÍ ČESKOSLOVENSKÉ NAUKY II.

The uncanny object for decades – legal opinions saying that the marriage proxy shall be of the same sex as his principal, seems to be one of the most neglected issues of Czech and Slovak family law. The idea that the proxy shall be of the same sex as his principal has no older tradition, especially not in Catholic Canon law, where marriages by proxy are enabled without any limitations on the ground of sex. With the two marginal exceptions, none of more than 25 occidental countries enabling the marriage by proxy knows any limitations of the proxy based on his sex. The paper analyses sources of this idea, which emerged in Czechoslovak legal doctrine during the early 1950s: this was influenced by the legal doctrine of the Nazi Germany (demand of limitation of the proxy on the ground of sex posed uncompromisingly by Deuchler) as well as by the older doubts expressed by the Austrian scholar Lenhoff, and of course, also by the international wave of homophobic panic between 1930s and 1950s. Although having any support in the positive law (Act on Family Law, 1949 nor Family Act, 1963) and despite of (mostly restrained) dissaproval of the majority of legal doctrine, the idea of limitation of the proxy on the ground of sex led its own life, being persistently proclaimed by its few partisans (Petrželka, Štěpina, Planková) and waiting for its political possibility to be adopted into the positive law.