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Last update: 20-05-2005
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Divorce - Hungary

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TABLE OF CONTENTS

1. What are the conditions for obtaining a divorce (e.g. possibility to divorce by common agreement, requirement of separation etc.) ? 1.
2. What are the motives for a divorce (e.g. irretrievable breakdown of the marriage, fault, separation) ? 2.
3. What are the consequences of a divorce as regards: 3.
a) the personal relations between the spouses (e.g. the surname) ? a)
b) the division of property of the spouses? b)
c) the minor children of the spouses (e.g. parental responsibility and maintenance claims) ? c)
d) the obligation to pay maintenance to the other spouse? d)
4. What does the legal term „legal separation” mean in practical terms? 4.
5. What are the conditions for legal separation? 5.
6. What are the legal consequences of legal separation? 6.
7. What are the conditions of marriage annulment? 7.
8. What does the term “marriage annulment” mean in practice? 8.
9. What are the legal consequences of marriage annulment? 9.
10. Where should I lodge my application for divorce / legal separation / marriage annulment ? Which formalities must be respected and which documents should I attach to my application ? 10.
11. Is it possible to appeal against a decision relating to divorce /legal separation / marriage annulment ? 11.
12. What should I do to have a decision on divorce / legal separation / marriage annulment issued by a court in another Member State recognised in Hungary? 12.
13. To which court should I turn to oppose the recognition of a decision on divorce / legal separation / marriage annulment issued by a court in another Member State? Which procedure applies in these cases? 13.

 

The fundamental provisions governing divorce and marriage annulment in Hungary are set out in Articles 7-22 of Act IV of 1952 on Marriage, Family and Guardianship (Family Law Act, hereinafter: FLA).

1. What are the conditions for obtaining a divorce (e.g. possibility to divorce by common agreement, requirement of separation etc.) ?

Pursuant to Article 18 (1) of the FLA, the court may grant a divorce at the request of either or both spouses if their marriage has completely and irretrievably broken down. Hungarian divorce law does not have a so-called principle of fault, i.e. it does not stipulate that divorce can only be granted if the marriage of the spouses has become impossible to continue due to the inappropriate behaviour of either of the parties. Another characteristic of Hungarian divorce law is that it does not enumerate any reasons for dissolution, neither in form of examples nor in an exhaustive manner. Instead, it is at the discretion of the court to decide whether in the particular case the marriage has completely and irretrievably broken down. The court has to carry out extensive inquiries and examine the entire process that has led to the breakdown of the marriage in order to decide whether it has broken down completely and irretrievably.

Article 18 (2) of the FLA permits divorce based on the parties’ common declaration of will (their mutual consent) . Pursuant to this provision „the complete and irretrievable breakdown of marriage is shown by the final common declaration of will by the spouses for divorce made without undue influence”. The common declaration of the spouses to this effect is considered sufficient evidence for the marriage having become shattered and impossible to continue, thus in the case of such common declaration there is no need for a detailed examination of the reasons leading to the breakdown of the marriage. However, the marriage can only be dissolved on the grounds of the parties’ common declaration of will (mutual consent) if

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the parties have come to an agreement regarding the so-called ancillary issues raised between the spouses during the divorce procedure (e.g. placement and maintenance of any child of the marriage; regulation of contact between the absent parent and the child; alimony for the spouse; and the division of joint matrimonial assets) and their agreement has been approved by the court; or

the spouses separated at least three years earlier i.e. they live in separate residences and prove that they have resolved the placement and maintenance of their child in the child’s interests.

2. What are the motives for a divorce (e.g. irretrievable breakdown of the marriage, fault, separation) ?

As mentioned in point 1, Hungarian divorce law determines the legal prerequisite of divorce with a general clause („the complete and irreparable breakdown of marriage”). Hungarian law gives neither examples, nor an exhaustive list of grounds for divorce, and particularly does not acknowledge any so-called absolute grounds for the dissolution of marriage (given which the application for divorce would be accepted automatically, without any judicial discretion). Neither the “fault” of any of the spouses, nor the separation of the spouses constitutes a ground for divorce in itself.

3. What are the consequences of a divorce as regards:

a) the personal relations between the spouses (e.g. the surname) ?

With the divorce (once the decision has become non-appealable) the former spouses regain their ability to marry, i.e. they may remarry.

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Pursuant to Article 26 (3) of the FLA, the divorce by law (ipso iure) does not affect the names of the former spouses. Therefore, following the divorce the former spouses continue to use the same names that they did during their marriage (even if one of the spouses used the name of the other spouse). However, the former spouse who used the name of the other spouse during their marriage may regain his/her name used prior to the marriage. This does not require a special legal procedure for changing names; it is sufficient for the former spouse to declare after divorce before a registrar that she intends to use her former name (used prior to the marriage).

b) the division of property of the spouses?

In respect of matrimonial property law the Hungarian family law follows the property law system of the so-called conjugal community of property. Pursuant to Article 27 (1) , the marriage creates a conjugal community between the spouses for the duration of their matrimonial life. In legal terms conjugal community of property means that all assets that the spouses acquire jointly or individually during the time of their matrimonial life (with certain exceptions) constitute their undivided joint property. The conjugal community of property does not extend to the assets of the spouses they already had when their marriage was solemnized; such assets will continue to be the separate assets of the husband or the wife. The law allows spouses to regulate their matrimonial property law affairs differently from the provisions of the Act by entering into a marital agreement.

In case of divorce, any of the former spouses may apply to the court for the division of the matrimonial joint property. The division of joint property does not necessarily require a court order, the spouses can agree on the method of division of their joint property out of court, within the framework of a contract.

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c) the minor children of the spouses (e.g. parental responsibility and maintenance claims) ?

In the case of divorce a decision has to be made about the residence of the child, i.e. which parent will care for, and raise the common minor child in his/her own household. Pursuant to Article 72/A of the FLA, the decision regarding the residence of the child is principally made by the parents; if the parents cannot come to an agreement in this matter, the court will decide about the residence of the child. The court will place the child with the parent with whom the child’s physical, intellectual and moral development is better ensured.

The placement of the child usually entails the exercise of parental custody rights, i.e. parental custody rights are exercised by the parent with whom the child has been placed (whether as a result of an agreement between the parents, or pursuant to a court order). The parental custody rights of the other parent (the so-called absent parent) in this case are suspended, however, he/she is entitled to the following rights in respect of the child:

involvement in making essential decisions concerning the child’s future (e.g. decisions on the child’s residence, education, career, use of name) ; and

right to be in contact with the child and have visitation rights.

it is noted that pursuant to Article 72 of the FLA the court may also order at the parents’ joint request that following the divorce the parents shall continue to exercise parental custody jointly (irrespective of which parent the child will reside with).

d) the obligation to pay maintenance to the other spouse?

For a former spouse to demand alimony from the other former spouse following divorce, Hungarian law (in Article 21 (1) of the FLA) lays down the following (conjunctive) conditions:

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the former spouse requesting alimony is in need of it through no fault of his/her;

the former spouse requesting alimony did not become unworthy of alimony due to his/her behaviour demonstrated during the marriage; and

the alimony payment should in no way endanger the living of the former spouse obliged to pay alimony, and that of the person(s) whom the latter must maintain in one line with the former spouse requiring alimony.

4. What does the legal term „legal separation” mean in practical terms?

The Hungarian family law as it is in force presently does not know any judicial procedures aimed at the legal separation of the spouses while maintaining marriage. The separation of the spouses is a factual situation, where the common matrimonial life between the spouses has ceased to exist.

According to the Hungarian jurisprudence and interpretation of law, common matrimonial life is a complex term expressing the emotional and economic unity of the spouses. The most relevant criteria of common matrimonial life are

the intimate personal relationship (emotional and spiritual community, mutual support, intellectual and cultural relationship, regular sexual life, etc.) on the one hand, and

the entirety of economic ties (cohabiting in the common apartment, maintaining a joint household, joint financial management, co-operation in order to achieve various financial or economic goals) etc. on the other hand.

However, the facts and circumstances given as examples above can only be evaluated in their entirety, and by taking into consideration the circumstances of the spouses; none of them is essential in itself in deciding whether the common matrimonial life between the spouses still exists or has ceased. The subjective i.e. conscious and deliberate aspects are also very important in this issue: it has importance, for example, whether the spouses have ceased to cohabit (either spouse has moved out) only due to an objective pressure (e.g. either spouse has taken up employment abroad) , or to the fact that one of the spouses has moved out of the common residence in order to terminate the common matrimonial life.

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5. What are the conditions for legal separation?

As explained in point 4, in Hungary it is not necessary, and in fact impossible that the court declares, establishes or permits legal separation; the separation of the spouses is a factual situation, meaning the end of their former common matrimonial life, i.e. that of the close emotional and economic ties.

6. What are the legal consequences of legal separation?

Legal separation may entail the following consequences in terms of family law:

termination of the conjugal community of property

In respect of matrimonial property law the Hungarian family law follows the concept of the so-called conjugal community of property. Pursuant to Article 27 (1) , the marriage creates a conjugal community of property between the spouses for the duration of their common matrimonial life. In legal terms conjugal community of property means that all assets that the spouses acquire jointly or individually during the time of their common matrimonial life (with certain exceptions) constitute their undivided joint property.

If the common matrimonial life is terminated, the conjugal community of property ends by operation of law (ipso iure). Consequently,

assets acquired by either spouse following the termination of the common matrimonial life will not become part of the joint assets of the spouses but will constitute the separate assets of the relevant spouse;

either spouse may demand that the joint assets acquired up to the termination of the common matrimonial life be divided.

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entitlement of the separated spouse to alimony

Hungarian family law entitles either of the spouses to demand alimony (maintenance) from the other spouse not only following the divorce, but also when their matrimonial tie is maintained but their common matrimonial life has ceased to exist. The legal conditions of entitlement of the separated spouse to alimony are essentially the same as those that entitle the former spouse to demand alimony for the period following the divorce (see Section 3. d) , i.e.

the separated spouse requiring alimony is in need of the maintenance through no fault of his/hers;

the separated spouse requiring alimony did not become undeserving of the maintenance payment through his/her behaviour demonstrated during the marriage; and

the alimony payment must not endanger the livelihood of the spouse obliged to pay alimony, and that of the person(s) whom the latter must maintain together with the separated spouse requiring alimony.

However, the entitlement of a separated spouse to alimony is subject to a further condition (as opposed to alimony that the former spouse may require for the period following the divorce) , namely that the living expenses of the separated spouse demanding alimony may not be covered from the joint assets of the spouses.

7. What are the conditions of marriage annulment?

Articles 7-8 and 10-12 of the FLA list exhaustively all deficiencies that result in the invalidity of the matrimonial tie. These reasons are the following:

the former marriage of either of the parties still existed at the time of their being married;

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at the time of the marriage a judicial interdiction was imposed on either party to the marriage, causing him/her to be incapacitated;

although no judicial interdiction was imposed on either of the parties at the time of the marriage, he/she was in a fully incapacitated state (i.e. he/she was completely lacking the capacity required for the management of his/her affairs) ;

either party to marriage was younger than sixteen at the time of the marriage;

either party to marriage was older than sixteen but younger than eighteen and the Guardianship Authority did not grant permission to the marriage.

one of the following types of family relationship existed between the parties to marriage:

the parties to marriage are each other’s linear relatives;

the parties to marriage are each other’s siblings;

either party to marriage is the blood descendant of the sibling of the other party to marriage;

either party to marriage is the blood relative of the spouse of the other party to marriage; or

either party to marriage has adopted the other party to marriage.

the registrar was not present at the marriage in his/her official capacity;

the parties to marriage were not present together when they declared their intention to marry.

The marriage can be annulled by court proceedings. A marriage can only be considered annulled if it has been declared annulled by the court (in the form of a decree absolute) on the grounds of any of the above listed reasons for annulment.

8. What does the term “marriage annulment” mean in practice?

As explained in Section 7, a marriage can be annulled by court proceedings. The applicability of the ruling of the court made in the issue of the annulment of the marriage extends to every person (erga omnes) .

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Barring certain exceptions, either spouse may issue a petition for the annulment of the marriage during its existence, and even following the termination of the marriage (provided that the marriage was terminated by divorce or due to the death of either spouse). Article 14 of the FLA specifies the persons having the right to initiate a court proceeding for the annulment of the marriage (active legitimacy within the court proceedings). These persons are the following:

either spouse;

the public prosecutor;

any person who has a legal interest in the annulment of the marriage.

The marriage can only be declared annulled by the court. The suit may be filed by either spouse, the public prosecutor or the person who has a legal interest in the annulment of the marriage. The applicability of the ruling declaring the marriage annulled extends to every person.

9. What are the legal consequences of marriage annulment?

The ruling of the court made in the issue of marriage annulment terminates the marriage with a retrospective effect to the date of the marriage (ex tunc) ; i.e. the marriage is to be regarded as if it had never existed. However, certain legal implications of the marriage will continue to exist even if the court has declared the marriage annulled in a decree absolute (the so-called “residual implications” of marriage). These legal implications are the following:

putative fatherhood. Pursuant to 35 (1) of the FLA, the man to whom the mother was married from the time of conception to the birth of the child (or at least for part of that time) shall be regarded as the father of the child (putative fatherhood). The annulment of the marriage by judicial ruling does not affect the putative fatherhood; thus it may also be attributed to an annulled marriage.

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right of using the name of a former spouse. If either spouse assumed the name of the other spouse at the time of the marriage, he/she may continue to use this name following the annulment of the marriage by judicial ruling.

property law implications. Pursuant to Article 33 of the FLA, the legal implications in respect of property law of an annulled marriage must be assessed in the same way as if the marriage had been valid, provided that at the time of entering the annulled marriage both spouses acted in good faith (i.e. they both assumed that their marriage had validly come into existence). If the marriage is annulled by judicial ruling in such a case, both spouses may enforce their matrimonial property claims as if the marriage had not been annulled but a divorce had been granted.

10. Where should I lodge my application for divorce / legal separation / marriage annulment ? Which formalities must be respected and which documents should I attach to my application ?

A lawsuit for divorce and marriage annulment falls within the jurisdiction of the local courts.

A lawsuit can be filed with courts which

have general jurisdiction in all types of civil lawsuits pursuant to Article 29 of the Code of Civil Procedure. The general jurisdiction is determined according to the place of residence (or place of stay in the absence thereof) of the Respondent. (In case the Respondent does not have, and has never had, a place of residence or regular place of stay in Hungary, the general competency is exceptionally determined by the place of residence or place of stay in Hungary of the Petitioner) ; or

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which have special jurisdiction in matrimonial cases pursuant to Article 277 of the Code of Civil Procedure (in accordance with this provision the court in whose territory the spouses last shared a place of residence can also proceed in matrimonial cases).

A lawsuit for divorce or the annulment of the marriage must be initiated with a statement of claim (divorce petition) addressed to the court.

A divorce petition must be placed in writing; however, if the Petitioner does not have a legal representative he/she may dictate the divorce petition into a protocol at any local court. In the latter case the court that recorded the petition in a protocol shall ensure that the suit is transferred to the court with jurisdiction for proceeding.

The divorce petition first of all must contain the details generally required by law (Article 121 of the Code of Civil Procedure) for any type of petition filed with civil courts, namely:

the proceeding court;

the names, places of residence, and status in the lawsuit (“Respondent” and ”Petitioner” respectively) of the parties, and the name and place of residence of their representative(s) in the lawsuit if any;

the denomination of the right that the Petitioner wishes to enforce in his/her petition (e.g. divorce or marriage annulment) , and the facts complete with evidence serving as a basis for such right;

details from which the scope of authority and jurisdiction of the court can be established;

a petition (so-called divorce petition) for the ruling of the court.

In respect of matrimonial cases the law (Article 283 of the Code of Civil Procedure) requires further special information, namely:

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details related to the marriage (date and place of marriage) ;

details related to any children of the marriage (name, birth data) ;

if the parties apply for divorce by mutual consent, a reference thereto; and

any data from which the entitlement for issuing a petition can be established (active legitimacy within the court proceedings; see Section 8).

The marriage certificate and the birth certificate(s) of any minor child(ren) of marriage of the parties must be enclosed to the divorce petition.

If the petition is for divorce, the duty on the dissolution suit must be paid along with the divorce petition (with a stamp duty) ; at present the amount payable is HUF 10,000 (app. € 38). The duty on marriage annulment is HUF 15,000 (app. € 57) , but this does not have to be paid in advance.

11. Is it possible to appeal against a decision relating to divorce /legal separation / marriage annulment ?

According to Hungarian law, judicial rulings made in matrimonial cases may be appealed in accordance with the general rules applicable to civil lawsuits. Appeals can be filed within fifteen days from receipt of the notification of the ruling.

12. What should I do to have a decision on divorce / legal separation / marriage annulment issued by a court in another Member State recognised in Hungary?

Pursuant to Article 14 (1) of Council Regulation 1347/2000/EC dated 29 May 2000 („Brussels II” Regulation) , no separate judicial proceedings or administrative and legal procedure is required for the recognition of rulings made in matrimonial cases in another member state of the European Union; the legal implications of such ruling are ipso iure recognised in Hungary. The conditions of the recognition are verified by the court or other authorities during whose proceedings the issue of recognising such a ruling has been raised. For example, in inheritance or conjugal community proceedings the legitimacy in Hungary of a ruling on the dissolution of a marriage made in another member state is a legal issue preceding the ruling on the merits of the case. The ruling made in another member state is examined and recognised by the proceeding court itself (in accordance with Article 14 (4) of the “Brussels II” Regulation). The proceeding court does not need to make a formal ruling on the recognition of the ruling made in another member state in such cases either; it is sufficient if a reference is made to the acknowledgement of such ruling made in another member state in the reasons for the judgement made in the key issue of the lawsuit (the merits of the case).

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In practice the authorities in Hungary that come across rulings made in other countries on divorce and marriage annulment are the registry offices. If the client wishes the ruling granting him/her divorce or annulling his/her marriage, which was made in another member country to be registered in the register in Hungary, he/she must submit the ruling (complete with its authenticated Hungarian translation) to the Hungarian registry offices where the marriage itself was registered. The recognition in Hungary of the ruling made in another member state does not require a separate procedure to be carried out in this case either.

In order to provide a more comprehensive coverage, we would like to note that, in accord with Article 14 (3) of the „Brussels-II.” Regulation, the interested party may initiate a separate judicial procedure in order to establish whether a ruling made in another member state in a matrimonial case can be recognised in Hungary. The following courts have the scope of authority and jurisdiction for conducting such a procedure:

primarily the local court operating at the seat of the county court of the place of residence or place of regular stay of the adverse party in Hungary (the Buda Central District Court in the case of Budapest) ,

if the adverse party has neither a place of residence nor a regular place of stay in Hungary, the local court operating at the seat of the county court of the place of residence or place of stay in Hungary of the party requesting the statement (the Buda Central District Court in the case of Budapest) ;

if neither the party requesting the statement, nor the adverse party have either a place of residence or regular place of stay in Hungary, then the application can be filed with the Buda Central District Court.

13. To which court should I turn to oppose the recognition of a decision on divorce / legal separation / marriage annulment issued by a court in another Member State? Which procedure applies in these cases?

As explained in Section 12, pursuant to Article 14 (3) of the „Brussels-II” Regulation the interested party may initiate judicial proceedings with a view to establishing whether a ruling made in another member state in a matrimonial case can be recognised in Hungary. The same judicial procedure may be initiated for a negative statement; i.e. the party contesting the recognition of ruling made in another member state in a matrimonial case referring to the reason of abnegation set out in Article 15 (1) of the „Brussels II” Regulation may initiate a judicial procedure with a view to establishing that the ruling cannot be recognised in Hungary. Such procedure for obtaining a negative statement may be filed with the courts listed in Section 12.

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Last update: 20-05-2005

 
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