CHAPTER 8
THE CURRENT LAWS REGULATING MARITAL AND QUASIMARITAL RELATIONSHIPS IN HUNGARY
Dr.Martha Dóczi
Court of Appeals, Budapest
Hungary
A. Introduction
Hungary is a small country located in the heart of Europe and occupying
part of the Carpatian Basin.
The country had a population of 10.076.581.
Hungary was a socialist country till 1990. Before 1990 in Hungary there
was only one political power, the Communist Party, but from 1990 Hungary
is a democratic country, so in the Parliament there are represented four political parties.
A new democratic system brings about changes in Hungary. Freemarket economy causes more unemployment, especially among the female
population.
In Hungary the number of marriages slowly declined from 1980.
Proportion of disintegrated families is very high, number of divorces reaches
as much as 28--30 thousands a year, with about this same number of children
concerned. Inclination to get married is less common, whereas the number of
single mothers bringing up their child on their own is growing (Families with
only one parent are up to 13%).
I. Legislation
The Hungarian Constitution declares as an obligation of the Republic of
Hungary the protection of the institutions of the marriage and the family.
The Hungarian Family Act was adopted in 1952 (Act No.VI.1952. on
Marriage, Family and Guardianship) and amended in 1974 and 1986.
The main purpose of the Hungarian act on family law may be summed
up as follows: The increased protection of the institution of marriage, the
continued strengthening of family communities in compliance with social
progress, increasing the responsibility of spouses and members of the family,
the promotion of the principle of women's rights, the increased protection of
the interests of children, more efficient guarentees of education within the
family framework, and the promotion of the physical and mental
development of children by means of wide-scale state-run care.
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Part One of the Family Code contains the regulations relating to
marriage. The second part of the family Code summarizes the rules relating
to the family.(family, child, adoption, maintenance, custody etc.). The third
part of the Family Act deals with guardianship.
II. Statistics and demography
Table 1
Year
1980
1990
1991
1992
1998
1999
2001
2002
2005
Population of Hungary (1000)
Male
Female
5188,7
5520,8
4984,9
5389,9
4972,2
5382,7
4960,0
5375,0
4841,9
5293,5
4817,6
5274,2
4863,6
5333,5
4862,0
5322,4
Total
10.709,5
10.374,8
10.354,8
10.335,0
10.135,4
10.091,8
10.197,1
10.184,4
10.076,6
(Source: Hungarian Centre for Statistics - 2006.)
Table 2
Number of Marriages
1980
80.331
1990
66.405
1995
53.463
1998
44.915
2001
43.500
2002
42.800
2005
41.650
(Source: Hungarian Centre for Statistics - 2006.)
We can see from 1980 the number of marriages slowly declined.
Table 3
Year
1980
1990
1995
1999
Number of population (aged more than 15 years)
by sex and marital status
Male
Single
Married
Widower
Divorced
875,5
2818,9
139,8
149,4
979,0
2515,9
150,7
248,9
1148,5
2367,5
154,1
277,9
1239,1
2222,8
151,3
310,9
Marriage in Central Europe
2000
2005
Year
1980
1990
1995
1999
2000
2005
1257,7
1301,2
Single
603,5
692,5
851,0
939,1
957,9
992,3
2183,9
2016,4
150,9
149,3
Female
Married
Widower
2818,7
716,7
2525,8
773,3
2377,5
799,2
2232,8
806,1
2193,9
806,0
2015,6
805,0
119
319,4
312,3
Divorced
246,1
358,3
400,0
445,0
456,4
450,3
(Source: Hungarian Centre for Statistics - 2006.)
This table shows us that almost half of the women are living single
without a man and third part of the men is living alone.
The 1952 Family Code - still in force after a series of amendments - has
put an end to previously assured authority of husband over wife, just as it
has terminated paternal authority over the child substituting that with the
joint parental competence that already postulates equal right of father and
mother.
Family law in Hungary has not undergone any fundamental changes
during the last 10 years. The Family Code was enacted in 1986 and is still in
force. The political and economic changes in the in the country have had
almost no influence on family law regulations.
Table 4
Year
1980
1985
1986
1987
1988
1989
1990
1991
1993
1995
1997
1998
2001
2002
2005
Number of Divorces
27.797
29.309
29.557
29.856
23.868
24.952
24.888
24.653
22.350
24.857
24.992
25.763
25.807
25.912
24.700
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(Source: Hungarian Centre for Statistics - 2006.)
The number of divorce is very high in every year in Hungary, and the
numbers continuously increase from 1980 to 1987. After a record 29856
divorces in 1987 (when the modified Family Act came into force) these
numbers have steadily risen till 1993. But after this the number of divorce
continuously increases again.
B. Marriage
I. The Nature of Marriage
Quite apart from its abstract meaning as the social institution of marriage, “marriage” has two distinct meanings: the ceremony by which a man
and woman become husband and wife or the act of marriaging, and the relationship existing between a husband and his wife or the state of being married. This distinction largely corresponds with its dual aspect of contract and
status.
Marriage as a contract: In Hungarian law marriage is an agreement by
which a man and a woman enter into a certain legal relationship with each
other and which creates and imposes mutual rights and duties. Looked at
from this point of view, marriage is clearly a contract. It presents problems
similar to those which arise with other contracts - for example, of form and
capacity, and like other contracts it may be voidable. But it is, of course,
quite unlike any commercial contract, and consequently it is sui generis in
many respects.
In particular we may note the following marked differences:
- The law relating to the capacity to marry is quite different from that any
other contract.
- A marriage may only be contracted if special formalities are carried out.
- The grounds on which a marriage may be voidable are for the most part
completely different from those on which other contracts may be voidable.
- Unlike other voidable contracts, a voidable marriage cannot be declared
void ab initio by repudiation by one of the parties but may be set aside only by a decree of nullity pronounced by a court of competent jurisdiction.
- A contract of marriage cannot be discharged by agreement, frustration or
breach. Apart from death, it can be terminated only by a decree of dissolution (or divorce) pronounced by a court of competent jurisdiction.
- Provided that they do not offend against rules of public policy or statutory prohibitions, the parties to a commercial contract may make such terms
as they think fit. But whatever agreement they may come to cannot as such
confer rights or impose duties upon any other person. But the fact that
marriage creates a status limits the parties' power to make their own terms
and also may affect their legal rights and duties with respect to other persons.
Marriage as creating status:The second aspect of marriage is much
more important than the first. It creates a status, that is, “the condition of
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belonging to a particular class of persons (ie:married persons) to whom the
law assigns certain peculiar legal capacities or incapacities.”.
In the first place, the spouses' mutual rights and duties are very largerly
fixed by law and not by agreement. Some of these may be varied by consent,
for example, the spouses may release each other from the duty to cohabit.
But many rights and duties may not be altered, eg.: the wife may not contract
out her power to apply to the court for maintenance in the event of divorce.
Secondly, marriage may also affect the rights and duties of third persons. Thus a husband has an action against anyone who by committing a tort
against the wife thereby deprives the husband of her consortium, and it is not
open to the tortfeasor to argue that the marriage is res inter alios acta. Similarly, a wife may in certain circumstances pledge her husband's credit for the
purchase of necessaries and so give the seller a right to sue the husband,
although the latter may have forbidden her to buy the goods in his name.
Definition of marriage:A marriage may be defined as the voluntary union for life of a man and a woman to the exlusion of all others.
First, the marriage must be voluntary. Thus, as we shall see the marriage
will be voidable if there was no true consent on the part of one of the parties.
Secondly, the marriage must be for life. This does not mean that under
Hungarian law a marriage is indissoluble: divorce by judicial process has
been possible in Hungary since 1894.
Thirdly, it must be monogamous. Neither spouse may contract another
marriage so long as the original union subsists.
II. The Capacity to Marry
In order that a man and women may become husband and wife, two
conditions must be satisfied: first they must both possess the capacity to
contract a marriage, and secondly, they must observe the necessary formalities.
Capacity. In order that a person domiciled in Hungary should have capacity to contract a valid marriage, the following conditions must be satisfied:
- neither party must be already married,
- both parties must be over the age of 18.,
- the parties must not be related within the prohibited degrees of relationship,
- the parties must be of the opposite sex,
- neither party must not be placed under the charge of a curator.
Monogamy.As a result of the Hungarian view of marriage as a monogamous union, neither party may contract a valid marriage whilst he or she is
already married to someone else. If a person has already contracted one
marriage, he cannot contract another until the first spouse dies or the first
marriage is annulled or dissolved. It follows that a mistaken belief that the
first marriage has been terminated, for example, by the death of the spouse,
is immaterial: what is relevant is whether it has in fact been terminated.
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Consequently, the second marriage may be void even though no prosecution
for bigamy will lie in respect of it.
It is therefore advisable for a spouse who wishes to remarry, where the
other spouse has disappeared and/or is thought to be dead, to obtain a decree
of presumption of death and dissolution of marriage under sec.23. Civil
Code. A party to a marriage is presumed dead under sec.23. if he or she has
been absent for at least five years.
Age. By law a valid marriage could be contracted only if both parties
had reached the legal age of 18. If either party were under this age when the
marriage was contracted, it could be avoided by either of them. (FC sec.10.)
According to the modification in 1986 the age limit of the Family Code
has been established as 18 years for both of the sexes. Men and women of
not more than two years younger of 18 could obtain the permission required
that is really justified and the maternity of the two parties can be verifiable.
In 1974 the law changed the age limit under which it was prohobited to
get married from 12 years to 16 years, and for girls it was changed to 14
years, but at the same time it decreased the age-limit for girls to get married
without a permission to 16 years.
From 1974 a man may contract marriage only after having completed
his 18th year of age, a woman only after having completed 16 years. At this
age, however, they decide freely, independently whether they wish to get
married and with whom. Neither parental consent nor any other official
permit is required. In exceptional cases, the Guardianship Authority may
reduce the age-limit by two years.
Not within the prohibited Degrees of Relationship. Marriages between
certain relatives related by blood or by marriage are prohibited.
A man cannot marry his mother, daughter, granddaughter, sister, aunt or
niece, step-mother, step-daughter, step-granddaughter, mother-in-law. The
same rules apply to a woman in respect of her male relations.
Adopted children are in the same degrees of prohibited relationships in
respect of their natural parents and other blood relatives. (FC sec.8.)
Spouses of opposite sex. The parties to a marriage must be respectively
male and female, otherwise the marriage is voidable. It is not therefore possible to contract a valid homosexual or lesbian marriage. (FC sec.10.)
Neither party must not be placed under the charge of a curator. - If one
of the parties is under the charge of a curator, the guardian's consent is needed.
A person who is under 18 becomes major after the marriage. Marriage
shall not bring about the attainment of majority if the marriage has been
declared void by court for incapacity or the lack of a permission of the public guardianship authority required because of minority of court. But he or
she stay major if he divorced or his spouse died. (FC sec.8.)
III. Formalities of Marriage
Not only must the parties to a marriage have the capacity to marry, but
they must comply with certain legal formalities relating to the ceremony of
marriage. The aim of formalities is to create legal certainty by providing
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123
proof by public record that a marriage has actually been contracted, and
when it was contracted. All marriages must therefore be registered. It is
important to establish when and whether a valid marriage has been created
because marriage has important consequences, eg. when one spouse dies
intestate.
Another aim of formalities is to establish whether the necessary consent
to the marriage was given and whether there are any lawful impediments to
the marriage taking place (eg.: that the parties are already married or are
under age.).
Before going through the solemnisation of marriage, the parties must
therefore comply with certain preliminary legal formalities. Failure to comply with these formal requirements may render the marriage voidable.
The rules relating to the formalities of marriage are mainly contained in
the Family Code.
The solemnisation of a civil marriage, takes place in the register office
in the district where one or both of the parties reside, although it can take
place in other authorised buildings. The ceremony is public and secular, but
the marriage can be followed by a religious ceremony in a church or chapel.
The parties must declare - personaly - that to their knowledge there are
no lawful impediments to the marriage and that they want to marry each
other.
The wedding must be witnessed by two witnesses.
In order to contract a marriage, both the man and the woman shall register in person with the people's goverment of the sub-district or village in
which they reside.
The parties may marry in the office of the register to whom the notice of
the intended marriage was given in the presence of the superintendent register and also of a register of marriages.
If the marriage is found to be in conformity with the provisions of law,
the local people's goverment shall, without delay, issue marriage certificates.
If the marriage is found not to be in conformity with the provisions of
law, registration shall not be granted.
IV. Effects of Marraige
Yet inevitably, marriage being a union of parties, their legal status is affected by it. There is only space here to mention a few of its more important
effects.
A husband is normally under a duty to maintain his wife and any children of the marriage according to his ability, and under certain circumstances either party may be ordered by the court to do so.
In law, property which clearly belongs to the wife is her 'separate' property. The joint property is belonging to the parties in equal shares.
As they can own property solely or jointly and they can bring proceedings in tort and contract separately either against third parties or against each
other.
They can also enter into contracts with each other.
They have mutual obligations of financial support to each other and to
their children and they both have parental responsibility.
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The marriage is a relationship existing between a husband and his wife,
or the state of being married:
- A person who is under 18 become major after the marriage. Marriage
shall not bring about the attainment of majority if the marriage has been
declared void by court for incapacity or the lack of a permission of the
public guardianship authority required because of minority of court. But
he or she stay major if he divorced or his spouse died.
- The marriage may change the surname of the wife: according to the
Hungarian family law when a couple marry the wife may adopt the surname of her husband (with her first name), or her husband's fullname with
“né” (that means Missis )
- other effects in the succession law,
- according to the hungarian law there is no effects to the nationality.
V. Void and Voidable Marraiges
Although the parties may have gone through a ceremony of marriage
and cohabited as man and wife, certain defects may exist which render that
marriage voidable.
In order to contract a valid marriage the parties must have the capacity
to marry and their marriage ceremony must comply with the proper formalities. According to the Hungarian law a marriage is and remains a valid marriage until a court annuals it pronouncing a judgement of nullity on application of either party to the marriage. In Hungary a voidable marriage is one
that will be regarded by every court as a valid subsisting marriage until a
judgement unnulling it has been pronounced by a court of compatent jurisdiction.
The effects of the voidable marriage is the same then the valid one,
sometimes it is remediable, some effects - after pronouncing a judgement of
nullity - is still alive ,eg:all children of the union are not illegitimate, the
name of the wife, the duty for maintance, and the effects of the matrimonial
property law are the same.
Ground for voidable marriage:
- marriage impediment : an existing marriage, consanguinity within the
prohibited degree, adoption-relationship between the spouses, affinity, legal incapacity, lack of capacity.
- formal defects: the marriage is not solemised by a registrar, or the couple
were not together personaly before the registar. (FC sec.8)
Existing marriage:According to the Hungarian Family Code a marriage
will be voidable if at the time of marriage either party was already lawfully
married. But the last marriage will become valid, if the previous is dissolved
( the previous spouse died or the couple was divorced ) or will infirm void.
The previous marriage may be dissolve if a missing spouse is declared legally dead by a court.
Consanguinity and affinity: A marriage is void if the spouses are directly descended or sister and brothers or lack of certificate of guardianship
office at the case in marriage.
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Where the marriage is between parties within the prohibited degrees of
relationship. These relationships may arise either from consanguinity (blood)
or affinity (marriage).
Legal incapacity: From 1974 a man may contract marriage only after
having completed his 18th year of age, a woman only after having completed
16 years. At this age, however, they decide freely, independently whether
they wish to get married and with whom. Neither parental consent nor any
other official permit is required. In exceptional cases, the Guardianship
Authority may reduce the age-limit by two years.
C. Divorce
Hungarian family law does not recognize any determined ground for
divorce. Dissolution of marriage may take place in the case of the aforesaid
objective life situations. This is independent of whether the one or the other
spouse has given cause for the dissolution. This rule permitted dissolution of
the marriage if it has deteriorated completely and irreparably and has
become unfit for performing its social functions. (FC18.§.)
However Hungarian family law does not recognize any determined
ground for divorce, the sole fact on which a petition for divorce may be
presented to the court by either party to a marriage shall be that the marriage
has broken down irretrievably. There are two ways for divorce proceedings:
the first one is an “undefended divorce”, the second one is a “defended
divorce”.
The court must not decide on the dissolution of a marriage, - if the
parties have requested the dissolution of marriage by indentical acts of will
on the basis of point a./ of section (2) of para 18. of the Act on Family Law until an agreement has been reached on all quastions determined therein and
it is affirmed by court.
The spouses must reach agreement on the fundamental questions
connected with the dissolution of marriage and that the court must consider
such agreement, or must reach decision relating to these questions. These
questions are connected with the maintenance and the custody of children
(placing, keeping, visiting rights), with the alimony of the spouse, and with
the common flat.
In both of these proceeding there is need of proof of 'irretrievable
breakdwon'. In the first one it is enough to state it by the parties and one
witness, in the second one it is more complecated. At this stage one of the
parties does not want to divorce, so the other one must proof the
irretrievable breakdown. The succes of a petition depended upon the 'guilt'
of the respondent, upon the respondent having done something 'wrong', eg:
adultery etc.
Proof establishes the breakdown of a marriage unless the evidence as a
whole satisfies the court that despite such fact or facts, the marriage has not
broken down irretrievable. The facts which proof it are not prescribed by the
Act, but there are facts in the practice, eg:
- the respondent has committed adultery and that the petitioner finds it
intolerable to live with him. The commission of adultery by itself does not
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prove the breakdown of a marriage. It so only if the petitioner also finds it
intolerable to live with the respondent.
- the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent. The court must be
satisfied that for the petitioner the situation is such that the marriage has,
through the behaviour of the respondent, become unendurable.
- the respondent has deserted the petitioner.
- the parties have lived apart for a continuous period. It was a recognation
by law of a right of divorce by mutual consent.
In dealing with a divorce case, the district court must, in the first
instance, try to bring about a reconciliation between parties. In case such
mediation fails, the court shall render a verdict without delay.
At the end of the divorce proceeding the court must be make a 'financial
provison' , a property provision and decision about the child and the
common flat. The former may require periodical payments for the children
or the other spouse.
D. Matrimonial Property
A married couple presents itself, for many purposes, as a unit. But the
unit consists of two persons. A married couple is viewed as living under
such or such marital regime, and the incidents of their property affairs are
determined by it.
Family Act 27.par. declares that property acquired during the marriage
would be equally divided.
Both husband and wife shall have equal rights in the possession and the
management of family property.
Both parties must cooperate in the control of the community found, but
in everyday transactions a third party in good faith may assume that the
other spouse has given a power of representation to the spouse with whom
the third party has been dealing. (FC 30.§.)
Hungarian Family Act laid the foundation for the system of separate
property between spouses. Each spouse owns and controls his or her own
property during the marriage and, on dissolution, each takes out what
belongs to him or her. (FC 28.§.)
E. Cohabitation without marriage
Although many couples (according to the Year Books of the Statistical
Office) live together as cohabitees (heterosexual couples living in the same
household but without being married), Hungarian law does not give them the
same rights and responsibilities as spouses. This may have certain advantages (eg.: there is no mutual duty of maintenance.), but being a cohabitee has several disadvantages. On relationship breakdown cohabitees are
often in a particularly vulnerable position, as any property dispute must be
determined according to the general rules of property law, for there is no
discretionary jurisdiction to adjust the property rights of cohabitees as there
is for spouses on divorce. On the death of a cohabitee who dies intestate the
surviving partner is also not treated as favourably as a spouse.
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127
Unmarried people living together as husband and wife do not usually
have the status of a married couple. But under the rules the resources and
requirements of an unmarried couple living together are aggregated for the
purposes of claiming social security benefits under the Social Security Act
1997.
There are no rules in the Hungarian Family Code for cohabiting couples. Rules in regarding the cohabitation can be found in other codes eg.:
Civil Code, Act LXXX.of 1997 on Social Insurance etc.
Earlier - till 1977 - there was no rule in regarding to the cohabitation.
The first step was in the modified Civil Code. That was the following:
Section 578/G: (1) Cohabitants - a man and a woman living together in the
same household in emotional and economic community without
contracting marriage - shall acquire joint property during their
cohabitation in proportion to their contribution to acquisition. If the
proportion of contribution cannot be determined, it shall be considered
equal. Work done in the household shall be considered contribution to
acquisition.
Some years ago this section was modified. The new one is the
following:
Section 685/A Civil Code: Cohabitees are two persons living together in
the same household in emotional and economic community without contracting marriage.
So we can see that according to the Hungarian law the cohabitation is
when cohabitees - not only a man and a woman, but two persons, living
together in the same household in emotional and economic community without contracting marriage.
But sociologists and others who research cohabitation can make without
do a precise formal defination and the law needs to be more precise: cohabitation a stable, more or less permanent, relationship between two persons
who are not married to each other (though one or both may be married to
someone else) and who share living facilities. They may have children, she
may not take his surname, but they may have entered into a formal contractual relationship.
The statistical data (Year Book of Hungarian Center for Statistics) show
that there is more cohabitation today than ten years ago.
F. Some Responses of Hungarian Law to Cohabitation.
I. Property Rights
Cohabitees during their relationship and on relationship breakdown are
subject to the general law of property. Ownership of personal and real property of cohabitees is determined by the general law of contract, so that the
cohabitee who contracts to buy property owns that property, the cohabitee
whose name the bank account is in owns the money in that account, and the
cohabitee whose name is on the conveyance owns the property conveyed,
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Chapter 8 - Dóczi
unless in each case a contrary intention is proved, eg: that the property
should be jointly owned.
Most property disputes between cohabitees are in respect of a house or
land, etc. It may be necessary for the non-owning cohabitee to establish an
interest on relationship breakdown or to defeat the claims of a third party to
possession of the house (eg: mortagee). To establish an interest the nonowning cohabitee can apply to the court for declaration that he or she has a
beneficial interest under a resulting in equity.
Section 578/G (Civil Code): Cohabitees - shall acquire joint property
during their cohabitation in proportion to their contribution to acquisition.
Rights in personal property: It is worth considering what the results
would be where a housekeeping allowance was paid by one cohabitant to
another. It is not so easy to impute an intention to share everything in a cohabiting relationship as it is in marriage. Where the man to give the woman
partner a housekeeping allowance, and the woman made savings, or purchashed property from money derived from the allowance, then it could be
argued that as donee she merely held the balance saved or property purchased on resulting trust for him. Where the allowance is given only for
housekeeping purposes, but the recipient with the donor's knowledge saves
money and buys items in her own name for the home, which they jointly use,
then it could be argued that the parties would have a joint beneficial interest
in such items, the donee being duly rewarded for thrift by the award of an
equal interest. It is the donor's money which is used to purchase the item, but
it is the donee's saving which has made the expenditure possible at all. Such
a construction of a joint interest may be easier where it is the woman who
has made the saving, since thrift is assumed to be a female quality.
Unlike married couples, cohabitants have no right to be considered for
compensation for loss of the possibility of acquiring some future benefit, or
for the loss of continuing benefits. So, where the cohabitant works in her
partner's business without remuneration, she is unlikely to receive anything
by way of reward for work done, or compensation for future loss of benefits.
On the other hand, if the cohabitant should later marry her partner, the possibility of receiving compensation will be much greater, even if the marriage
only lasts a short time.
Rights of occupation of the home: Cohabitees have no statutory rights of
occupation of the quasi-matrimonial home, unlike spouses who have rights
under the Family Code. A cohabitee's right of occupation therefore depends
on whether he or she possesses a right of ownership (which usually carries
with it a right of occupation) or a right to occupy it under a tenancy.
Property rights on death: A cohabitee, like any other person, has complete freedom to leave his or her property on death to whomsoever he or she
wishes provided the will complies with formalities laid down in sec. 624-635
(Civil Code)
A cohabitee can therefore make a will leaving property to the other cohabitee and/or children. Lacking a will, the position is different, for the surviving cohabitee, unlike a surviving spouse, is not entitled to the other partner's property as the rules of intestacy do not apply to cohabitees, although
their children are entitled to succeed to property.
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According to the Hungarian law a cohabitant has no right to succession
after his or her cohabitant, only the legal marriaged spouses have this right.
The Hungarian Civil Code provides:
Section 607:
- Legal heir is primarily a child of an intestate.
- Two or more children shall succeed in shares equal per capita.
- Instead of the child or farther descendant eliminated from succession, the
children of the eliminated person shall succeed to the estate, in equal
shares among themselves.
- If there is no descendant, the spouse shall succeed.
Section 608:
- If there is no descendant or spouse, parents of a person who died intestate shall succeed in shares equal per capita.
- Descendants of the parents eliminated from succession shall succeed instead of him in the same way as the descendants of a child instead of the
child.
- If a parent eliminated from succession has no descendant, the other parent alone, or his descendants shall succeed.
Section 609:
- If there are no descendants, spouse, parents or descendant of parents, the
legal heirs shall be grandparents of a person who died intestate in equal
shares.
- Descendants of a grandparent shall succeed instead of him or her in the
same way as the descendants of an eliminated parent instead of the parent.
- If an eliminated grandparent has no descendant, the mate of this grandparent shall succeed instead of him, and if he is also eliminated, his descendants shall succeed instead of him.
- If a pair of grandparents has been eliminated and their descendant cannot
succeed instead of them, the whole estate shall be succeeded to by the other pair of grandparents or their descendants.
Section 610:
If neither grandparents of a person who died intestate nor their descendants can succeed, further ascendants of that person shall be legal heirs in
shares equal per capita.
Section 611:
- If the legal heir is not a descendant of a person who died intestate, property having vested in that person from an ascendant by way of succession
or gratuitous bestowment shall be subject to parentelic succession.
- Parentelic succession shall take place also in respect of the property inherited or acquired gratuitously from a brother or sister, or his or her descendant, if the property was inherited or received gratuitously by the
brother or sister or their descendant from their and the intestate's common
ascendant.
- Ancestral character of property shall be proved by the person asserting a
claim of succession under this title.
Section 612:
- A parent shall succeed to property vested in a person who died intestate
from him or from his ascendant. Descendants of an eliminated parent shall
succeed instead of him according to the general rules of intestate succession.
- If there is neither a parent, nor a parental descendant entitled to succeed
to ancestral property, a grandparent, and if there is no grandparent, a farther ascendant of the estate-leaver shall succeed to the property vested in a
person who died intestate from him or from his ascendant.
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Chapter 8 - Dóczi
- If there is no parentelic heir, ancestral property shall be considered the
same way as other property of a person who died intestate.
Section 615:
- Spouse of a person who died intestate shall inherit the right of usufruct
of all property not otherwise inherited by him (right of widows and widowers).
- If a spouse remarries, his right of usufruct shall cease to exist.
Section 616:
- Limitation of the right of usufruct of a spouse may be requested only by
descendants.
- Right of usufruct may be limited at any time, however, it shall not exceed the extent where the limited usufruct still ensures the needs of a
spouse considering property inherited by him or her, his own property and
result of his work.
- Both a spouse and the heirs may request redemption of the right of usufruct of the spouse. Redemption of the right of usufruct on the flat in
which the spouse lives, of furnishings and installations used by him may
not be requested.
- A spouse is entitled to a share of the redeemed property - either in cash,
or in kind - which she would inherit as a child of the intestate as a legal
heir together with the descendants. In the case of parentelic succession, a
spouse is entitled to one-third of the ancestral property.
- Redemption shall be requested in the course of the probate proceeding,
in the absence thereof, within a year of the opening of the succession,
from the notary public otherwise competent for the probate proceeding.
II. Financial Provision
The parties to a cohabiting relationship have no enforceable rights to
maintenance either during or upon the breakdown of the relationship.
One of the main differences between spouses and cohabitees is that cohabitees have no maintenance obligation to each other. Consequently, cohabitees have no statutory jurisdiction, available in which they can apply for
maintenance for themselves, unlike spouses who can apply during marriage
and on divorce for financial provision from the other spouse.
Under the rules the resources and requirements of an unmarried couple
living together are aggregated for the purposes of claiming social security
benefits under the Social Security Act 1997.
According to Section 45-47, Social Security Act 1997. :
- The widow's pension may be provided to the spouse, divorced spouse or
cohabitee.
- Widow's pension may be either temporary or permanent. Temporary
widow's pension is due for one year following the spouse's death.
- A person is entitled to window's pension in the presence of the conditions prescribed for spouses if he or she
a) has lived with his or her spouse or cohabitee for one year without
interruption and has a child born, or
b) has lived with him or her for ten years without interruption.
III. Children
Marriage in Central Europe
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Child support while both parents are alive: According to the Hungarian
Family Law both unmarried parents have obligations to provide maintenance
for their children. A cohabitee can apply under sec.69/A, Family Code for
financial provision for a child.
Cohabitees are also entitled to welfare benefits from the State.
On the death of one of the child's parents: Where the relationship of the
child's parents is ended by the death of one of them, there are now fewer
differences between the respective positions of the illegitimate and legitimate child. If the deceased parent has left property in a will to his or her
“child”, such reference now includes legitimate and illegitimate offspring.
Other parental rights and duties inrespect of children: It is interesting
to note that parental rights and duties are defined by reference to the ligitimate child, whose parents indeed share such rights equally, whereas they are
possessed only by the mother in the case of an illegitimate child. While one
of the parental rights includes the right to agree to a child's adoption, it is
interesting to note that couples may adopt a child only where lawfully married.
Disagreements between the cohabitant parents can be resolved by unilateral action on the mother's part, since she has sole custody rights, and if
the father wishes to have some control, he has first to make an application
for custody. The same procedure has to be used upon breakdown of the
relationship should the father want custody of his child, access to it, or even
the right to be consulted as to their future upbringing. Once this process is
set in motion, the court can make orders similar to those avaible in respect of
married parents.
Hungarian law does not distinguish between married and unmarried
parents in the exercise of parental authority. In Hungary parents have joint
and equal custodial rights. The father may gain custody if the mother consents, if she is proved unfit or dies, or if her parental rights are terminated.
(FC sec.72.)
Bibliography
Tibor Pap: Hungarian Family Law (Budapest, 1979.)
Endre Nizsalkovszky: Order of the Family (Budapest, 1968.)
Ottó Csiky: Divorce (Budapest, 1990.)
Handbook of Family Law (Budapest, 1995.)
P.M.Bromley: Family Law (London, 1988.)
P.J.Pace: Family Law (London, 1986.)