Johanna Westeson - The ICHRP

demonstration of a shared life together, with repercussions in many different legal spheres.
The existence of common-law marriage is established retroactively in each individual case.
No registration is required. Interestingly, case law has clarified that there is no need for
partners to be involved in a sexual relationship. 296
Case law: opening common-law marriage to same-sex couples
The provision that made the institution of common-law marriage open only to opposite-sex
couples was challenged in 1995 and the Hungarian Constitutional Court passed its decision
No. 14/1995 (III. 13.) on 13 March 1995. 297 The petitioner argued both that common-law
marriage as it stood and civil marriage were discriminatory on the ground of sex and
therefore unconstitutional, since both excluded same-sex couples.
The Court ruled that the Constitution protected formal marriage, defined as a union
between a man and a woman, and was thus unwilling to open up civil marriage to samesex
couples even though it acknowledged “growing acceptance of homosexuality [and]
changes in the traditional definition of a family” (Section II para 3). However, it found that
it was indeed unconstitutionally discriminatory for regulations granting benefits to couples
living in common-law marriages to exclude same-sex couples. According to the Court,
[i]t is arbitrary and contrary to human dignity […] that the law [on common-law marriage;
meaning all regulations considering common-law marriage as an economic and emotional
union] withholds recognition from couples living in an economic and emotional union simply
because they are same-sex. 298 (Section III para 3)
The Court established that denying same-sex couples benefits awarded to opposite-sex
couples in common law marriages runs contrary to Section 70/A of the Hungarian
Constitution, which prohibits discrimination (but does not list sexual orientation explicitly
as a protected ground). If third parties are affected, however, exclusion of rights for samesex
couples may not be discriminatory in violation of the Constitution. 299
The ruling was codified in 1996 in the Common Law Marriage Act, which added same-sex
couples to the institution. 300 Same-sex common-law marriage still differs from oppositesex
common-law marriage in that it does not confer any parental rights on same-sex
couples. Both adoption and assisted procreation are de facto unavailable to same-sex
couples as well as to single persons in Hungary. 301
In case 154/2008, 302 the Hungarian Constitutional Court ruled against the Act on
Registered Partnership (184/2007), which recognized both same-sex and opposite-sex
couples' relationships and gave them rights similar to those of married couples. The Court
296 Yuval Merin, Equality for same-sex couples: the legal recognition of gay partnerships in Europe and the
United States, Chicago, 2002, pp. 131-134.
297 Decision of the Constitutional Court No. 14/1995 (III. 13.), ABH (Alkotmánybírósági Határozatok,
Constitutional Court Decisions) 1995, p. 82.
298 Information on the Hungarian case and quote from Yuval Merin, Equality for same-sex couples: the legal
recognition of gay partnerships in Europe and the United States, University of Chicago Press, 2002, p. 131.
299 For example, if the regulation concerns the common child of the partners or the existing marriage with a
third party.
300 Statute 42/1996 amending Section 578/G (now 685/A) of the Civil Code.
301 Ibid, p. 132.
302 154/2008 (XII.17), 15 December 2008. Only available in Hungarian; content explained by Hungarian
lawyer and researcher Adrienn Esztervari.
106