Modern
Hungarian Legal History
ChangesinFamilyLawI-II -> Prof.Dr. EszterCs.HERGER
ChangesinPublicLawI-II -> Prof.Dr. GáborSCHWEITZER
ChangesinPublicLawIII -> AssistantDr. DominikaNIKLAI
Assessment methods
 The students will write an essay of approximately
one-page in the final class session offering their
personal reactions to whichever materials or topics
covered in class that they find most important or
personally engaging.
 They will have wide latitude here and they may draw
on any of the materials covered, including the initial
literature or any of the instructor’s presentations.
Interpretative
framework
5 facts about Middle Europe’s nations
 Fact 1
 "More than forty years ago,
Theodor Mommsen already
pointed out in his speech at
the Rectorate that it is
indispensable to know a
nation's language and its
law in order to judge it. (...)
one must demand that the
jurist also make an effort to
recognize the law as it
applies and is practiced
outside the borders of our
state.”
 Richard Zehntbauer 1916
Fact 2
1905 Hans Schreuer:
„specificially Germanistic
discipline”
1917 Ernst Heymann
"somewhat stubbornly
developed German particular
law"
"has its own strong life
connected with the character of
the Hungarian people".
Journal of the Academy of
German Law
(ZAfDR)
Joachim Ribbentrop 1935
"The foreign countries today face
this tremendous change in the
political shaping of Germany
partly strangely, partly even still
rejecting it. (...) This will change,
and one of the most beautiful and
grateful tasks of the Academy of
German Law is to pave the way for
the understanding and international
recognition abroad of the coming
new German law, and to build the
bridge before this new legislation to
the administration of justice of
other peoples."
Fact 4
Boundaries of NATO and Warsaw Pact
from 1949 (establishment of NATO) to 1990
Fact 5
Harmanisation of
Family Law
Commission on
European Family
Law
Historical method
„...to disconnect
historical development
from the living legal
institution is - from the
point of view of
understanding the law -
pointless.”
Savigny 1809
Comparative method
"(...) there is some justice"
in the demand for a general
legal history, but legal
comparison can also give
rise to "serious errors",
because research not
carried out with sufficient
thoroughness "under the
name of great and
powerful views" leads to
"superficial half-truths".
Savigny, 1840
§ 1 On Accidental or deliberate homicide (De sicariis et homicidis casu vel voluntate)
§ 2 On serious assault (De atroci iniuria)
§ 3 On the treatment and cruelty of slaves (De iure et saevitia dominorum)
§ 4 On adultery (De adulteriis)
§ 5 On raptist (De stupratoribus)
§ 6 On incestuous marriages (De incestis nuptiis)
§ 7 On thies and their punishment (De furibus et de poena eorum)
§ 8 On false testimony (De falso testimonio)
§ 9 Exemption of family members from the obligation to testify (De familiaris testimonio
non admittendo)
§ 10 On deposits (De deposito)
§ 11 On abductors (De abactoribus)
§ 12 On arsonists (De incendiariis)
§ 13 On moving the boundary stones (De termino amoto)
§ 14 On kidnappers (De plagiariis)
§ 15 On astrologers, witches and Manichaeans (De mathematicis, maleficis et manichaeis)
§ 16 On the right of succession (De legitima successione)
Changes
in Family Law I
The secularisation of marriage law.
The obstacles to marriage and the form of marriage in the light of
canon law.
Models of divorce law in European legal culture.
The practice of Hungarian divorce law in the civil era and its impact
on contemporary Hungarian marriage law.
European models of matrimonial property law.
Modern Hungarian matrimonial property law in the civil era and its
impact on contemporary Hungarian matrimonial property law.
Dead roots?
The system of marriage obstacles in
(former) Western legal culture and in and
secularised marriage law
 § 1-2-3: Do not kill!
 § 4-5-6: Do not fornicate!
 § 7: Do not steal!
 § 8-9: Don't be a false witness!
 § 10-16: Do not covet the other’s
The Roman lawyer on
marriage
"It proves again the truth of the remark
often made that marriage is the
barometer of the morality of a people."
Rudolph von Jhering 1880
Time bands
-
continuity
the age of secularisation
(reception of Protestant canon law)
postmodern family law
unified western canon law
(13th c.)
A házasságkötés típusai
Unformal marriage 1
-> religious ceremonies have no legal
significance
matrimonium iuris civilis
Compliance with the legal
formalities is a condition of
validity
Optional church wedding
->secularised marriage law,
but in facie ecclesiae marriage
(Pl, Gr, E, I)
Compulsory
religious marriage
->state church
system
Compulsory civil marriage
->equal rights of the
denominations
Optional civil marriage>the
right of religious
minorities
Unformal marriage 2
-> cohabitation for the purpose of marriage
-> has the same legal effects as marriage
Common law marriage
Common law marriage, USA
1. Alabama
2. Colorado
3. Georgia until 1997
4. Idaho until 1996
5. Iowa
6. Kansas
7. Montana
8. New Hampshire
9. Ohio until 1991
10. Oklahoma until 1998
11. Pennsylvania until 2005
12. Rhode Island
13. South Carolina
14. Texas
15. Utah
+ District of Columbia
- divorce: the same rules as for an ordinary m.
The
importance of
marriage
obstacles
CURRENT CHALLENGE
LEGAL HISTORICAL SIGNIFICANCE
-> lies within the doctrine of the divorceability of marriage
avoiding
marriages that are
undesirable for
genetic and moral
reasons
minimising
obstacles to
marriage
What is the
difference
between
annulment and
dissolution of
marriage?
Annulment
The marriage is void with
retroactive effect to the date of
the marriage, as if it had never
been contracted.
divortium totale of the canon law
Dissolution
1. death
presumption of death
2. Divorce: The marriage is
dissolved from the date of the
final judgment of dissolution,
with effect for the future.
European
models
of
divorce
Catholic model
divortium particulare = separatio a thoro et mensa
Protestant model
fault principle
Liberal model
fault principle + objective reasons
+ mutual agreement
Thomas Aquin: „Summa contra gentiles”
„De regime principum”
sacramentum - ius divinum
officium naturae bonum naturae ius naturale
officium spirituale bonum ecclesiae statuta ecclesiae
officium communitatis bonum politicum ius civile
State competence in the Middle Age:
-> regulating the legal effects of marriage
-> regulation of obstacles to marriage
-> but the sanctity of character limits secular legislation
-> aim: uniform (Christina) marriage law
Secularisation of marriage law: in the 18th and 19th centuries
Types of
canonical
marriage
 MATRIMONIUM LEGITIMUM
- lawful marriage
->based on a bilateral contract
->it is still only an engagement
- contractual nature
 MATRIMONIUM RATUM
- full marriage
-> new consent is required
-> without parental consent!
-> if blessed by a competent minister,
it becomes a sacrament
 MATRIMONIUM CONSUMATUM
- consummated marriage
I. IMPEDIMENTA MATRIMONII IMPEDIENTIA
PREVENTS THE MARRIAGE FROM TAKING PLACE
1. "holy times„
from the beginning of Advent to the feast of the three kings
Epiphany
Ash Wednesday to the White Sunday after Easter
2. „spiritual ban”
lack of proclamation
wedding in a place under a religious curse
3. previous engagement to another person
4. vow of chastity (votum simplex)
breach of oath = sin
after marriage only with the consent of the spouse
5. Ignorance of the basic principles of religion
Marriage obstacles
in
Corpus Iuris
Canonici
II.IMPEDIMENTA MATRIMONII DIRIMENTIA
->DISSOLVE A MARRIAGE THAT
HAS ALREADY CONSUMMATED
lack of will
1.lackof capacity
->atleastadolescence
2.coercion/threats/misrepresentationtothe
personorthe person'slegalstatus
kinship (cognatio)
1.bloodrelationship(cognatiocarnalis)
->linealrelatives/ collateralrelativesupto4th
degree
2.legalrelationship(cognatiolegalis)
->adoption
3.spiritualrelationship(cognatiospiritualis)
->godparents
Tamar is raped by his half-brother Amnon
brother-in-law(affinitas)
prohibitionof mixedmarriages(cultus
disparitas)
crime(crimen)
1. murderof aspouse(conjugicidium)with the
intentionorpromiseof remarriage,if the future
spouseknewaboutthe actorwasapartner
2.adultary (adulterium)withthepromiseof
remarrriage
validmarriage(ligamen)
rape (raptus)
impotence
sacredorders(votumsolenne)
->dispensation
->the marriagecontractedbypriordispensationis
valid
Extension of the
"misleading"
ground for
invalidity
1941
in the 3rd
„Jewish Act ”
1. sicknes
2. „Jew” (race-based concept since 1939)
3. an incurable mental illness at the time of marriage, if the other
spouse did not know this and could not have inferred it from
the circumstances
„A marriage entered into (...) in contravention of the prohibition
may be challenged on the ground of misleading if the deception
relates to a fact which is relevant to the assessment of the personal
status of the spouse (...) and the deception was knowingly caused by
the other spouse or the other spouse knew of the deception, which
originated from a third party.”
Invalidity of the
marriage
Civil Code 2013
LIGAME
-> the new marriage can only be valid after the previous marriage has ended
-> if the court declares the previous marriage invalid, the new marriage is valid from the
date of the marriage
UNDERAGE
-> in the absence of prior dispensation from the guardianship authorities, only the
marriage will be annulled
INCAPACITATING GUARDIANSHIP / INCAPACITY
COGNATIO CARNALIS
-> no dispensation (between linealrelatives andcollateralrelativesupto1th degree)
not dependent on the good faith of the parties
the obstacle does not disappear with the passage of time
their sexual relations are a criminal offence
->dipensation: a brother's marriage to his brother's blood descendant is not invalid
a, if it was contracted with prior/ex-post notarial authorisation
b, if the health of the child is not endangered
COGNATIO LEGALIS, if the marriage is concluded „during the period of adoption”
The personal
effects of marriage
- a set of non-pecuniary rights and
obligations
- moral in nature
- derive from the fact that the
parties have entered into a valid
marriage
5th Draft of Civil Code 1928
I. cohabitation
§ 111 (1) the spouses are mutually bound
to live in a community of life
corresponding to the marriage
(debitum conjugale =claim for
"marital debt”)
§ 111 (2)
- fidelity
- mutual support, working for their
common welfare
Civil Code 2013
I. cohabitation
-> §
4:24
-fidelity (togetherness/solidarity)
-personal and marital cooperation and
support
5th Draft of Civil Code 1928
II. The head of the family is the husband
§ 112 (a) the husband has the right to decide on the affairs
of married life
-> choice of the place of residence?
Marriage Act 1894: the wife must accompany her
husband to the place of residence of his choice
1st Draf 1900: the wife is only obliged to follow her
husband if the husband pays the family expenses
§ 112 (b) in his decisions, the husband shall give fair
consideration to the reasoned advice and suggestions of
the wife, if she contributes to or pays the marriage
expenses
Civil Code 2013
II. –
§ 3 Equal rights for spouses
§ 25 decide together on family matters
decide on personal matters alone, but in
the best interests of the family
§ 26 choice of residence in agreement
->permanent place of residence /
habitual residence
->this can be a separate residence
Council of Europe, Committee of
Ministers
Resolution (78) No 37 (II/5)
"Among common peasants, beating a wife twice in
the mouth for backbiting is not a wrongful act that
would make it legal for the wife to leave the house of
the husband."
Royal Hight Court, 1895
5th Draft of Civil Code 1928
III. Naming
§ 1154 The wife bears her husband's name with
the marriage suffix.
- she may add her own name to it
- this also applies to widows and divorcees until
remarriage
- if the woman has been declared guilty at the
time of the divorce, she can no longer bear her
husband's name (Marriage Act 1894)
Civil Code 2013
III. Naming
Decision 58/2001 (XII.7.) of the Constitutinal Court
- recognition of the right to self-identity
- personal autonomy
§ 27 The wife shall bear the name of her choice after
the marriage (... )
->the same
- but the name of the ex-husband with -né suffix
cannot be used in the new marriage
- if the marriage is declared null and void by the
court, the woman bears the name of her choice
- if the wife has been sentenced to a prison term for
intentional crime, she may be forbidden to bear the
husband's name
5th Draft of Civil Code 1928
IV. Obligation of the wife
§ 115 management of the common household
§ 116
- housework
- supporting the husband in his work
- but she also obliged to earn independently and to
contribute to the marriage expenses from her income, if
their living conditions so require
V. § 113 Maintenance of a wife
Civil Code 2013
IV.
§ 24 mutual support, working for the common
good
V. § 113 mutual right and obligation for
maintenance
5th Draft of Civil Code 1928
VI. the right and obligation of the surviving spouse
to bury his or her spouse according to his or her
social status.
VII. the spouses may enter into a legal transaction
between themselves or with others which is
permitted to others and is not contrary to the
essence of the marriage. This also applies to
betrothed couples.
Conclusion:
1. No Munt
2. Full legal capacity or personal and financial
autonomy for the woman
3. But the traditional family model, in which the
husband is the head of the family, has survived.
Civil Code 2013
-> ->
evidence, property law issue
Conclusion:
1. Ensuring equal rights as far as possible.
2. The question is to what extent this has been
implemented in social relations and whether
the mindset has changed.
de Juribus foemineis
(survival of the traditional law before 1952)
 Daughter quater / de quartalitio seu quarta puellari
 Right of the widow / de Jure viduali
 Statutory or contractual widow's gift / dos scripta vel contractualis
 Husband’s gift /contrados
 Participation from the common property / de coaquitione conjugali
 Dowry and marriage gift / de allatura et parapherno
 Right of the girl child to marry off / de Jure capillari
Matrimonial
inheritance law
5th Draft 1928
Matrimonial
property law
5th Draft 1928
Statutory matrimonial property regimes in Europe
REGIMES BASED ON COMMUNITY OF PROPERTY <-> REGIMES BASED ON SEPARATION OF PROPERTY
Germanic model Roman model
(Gütergemeinschaft) (Gütertrennung)
1. general community of property 1. dotal regime
(Nl)
2. management „community” regime
2. partial community of property 3. postponed „community” of property
(B, F, Lux, Port, I, E) (Zugewinngemeinschaft in Austria)
the countries of the former Soviet bloc 4. participation from acquisitions
(Zugewinngemeinschaft in Germany)
5. separation
(England, Wales, Ireland, Scotland, Espania)
Confessional laws Marriage Act 1894 Decree 1945 Family Law
Code 1952
subjective
(fault-based)
divorce
reasons
adultery adultery, sodomy, bigamy same evil
abandonment intentional and unjustified
abandonment
same attempt
on your spouse's life attempt on your spouse's life same religious
conversion - same imprisonment
Imprisonment at least for 5
years, death penalty
same adortion
- -
objective
divorce r.
incurable mental illness - 5 years of separation
incurable mental illness
mutual agreement - joint request
irretrievable
marriage
breakdown
unforgiving hatred wilful and serious breach of a
marriage obligation
imprisonment
serious and
substantial reason
Number of
marriage
trials before
the Royal
Court of
Pécs
(1895-1918)
0
20
40
60
80
100
120
140
160
180
1895 1897 1899 1901 1903 1905 1907 1909 1911 1913
A pécsi királyi törvényszék előtt folyamatba tett házassági
köteléki perek száma (1895-1914)
100db
Religious
affiliation in
marriage trials
before the Royal
Court of Pécs
(1895-1918)
0%
10%
20%
30%
40%
50%
60%
római k.
protestáns
izraelita
The time between
the marriage and
the divorce before
the Royal Court of
Pécs (1895-1918)
0%
10%
20%
30%
40%
50%
60%
70%
1895
1896
1897
1898
1899
1900
1901
1902
1903
1904
1905
1906
1907
1908
1909
1910
1911
1912
1913
1914
1915
1916
1917
1918
2 év alatt
2-7 év között
7 év felett
The proportion of
relative and absolute
divorce reasons
in trials before
the Royal Court of
Pécs
(1895-1918)
->hidden mutual
agreement 0
10
20
30
40
50
60
70
80
90
100
1895 1897 1899 1901 1903 1905 1907 1909 1911 1913 1915 1917
relatív
abszolút
Distribution of
guilty by gender
before the
Pécs Royal Court
(1895-1918)
1,2%
29%
0,8%
49,5%
5,2%
female defendant 49,5%
female plaintif 0,8%
male defendent 29,0%
male plaintif 1,2%
Introductory
questions
Is it legitimate to interfere in the private sphere
through legislative means?
- family law: at the border between private and
public law
- social law institutes
- public protection of children and youth
Is public power responsible for shaping personal
value judgements and collective value
orientations?
Is there a balance between interference and
personal freedom?
Can social crises be solved by legal policy
instruments?
Mediation in
Hungarian
Divorce Law
before 1952
Sources of
historical
comparison
I. Marriage Laws of the Denominations
Codex Iuris Canonici (1983)
Ordinance of Joseph II (6 March 1786)
Curial Ordinance (2 November 1863)
Marriage Act No. XXXI of 1894
Civil Procedure Code No. I of 1911
Civil Procedure Code No. III of 1952
II. Mediation Act No. LV of 2002
Civil Code No. V of 2013
Civil Procedure Code No. CXXX of 2016
Questions
 What is the difference between
mediation and consiliation?
 Which types of consiliation were
used in the Hungarian/European
divorce law?
 What about the efficiency of
consiliation?
 What can mediators learn from
consiliators?
Some errors
about
consiliation
1. consiliation never did replace divorce
 in the canon law it was one of the institutions to protect the marriage bond
 it belonged to the group of principles called FAVOR MATRIMONII
 it was used in Catholic canon law by DIVORTIUM PARTICULARE
(separation from bed and table)
2. canon law protected the marriage as an especialy important institution
by reason of public interest
-> that was the reason why consiliation survived in the Protestant
confessional laws and in the secular divorce law as well
3. consiliation was used in fall of REPUDIUM (if only one spouse wanted the
divorce) and not of DIVORTIUM (mutual agreement)
Basicly
differences
between
consiliation and
mediation I.
Consiliation
 Neutral third party: vicar
pastor
rabbi
judge
 No special communication
 No special negotiation
techniques
 Goals:
1. to resolve the marriage
conflict
2. to preserve the marriage bond
Mediation
 a dynamic, structured, interactive
process where a neutral third party
assists disputing parties in resolving
conflict through the use of
specialized communication and
negotiation techniques
 Goals:
1. In divorce cases to create a
written settlement about the
disputed questions
2. It is possible that mediation helps
to resolve the marriage conflict
between the parties
Basicly
differences
between
consiliation
and mediation
II.
Consiliation -> compulsory Mediation -> freely chosen
 Before or during the divorce process
 from own decision or from initiation
of the court
 In questions of parental responsibility
or contact between child and parent it
can be ordered by court or
guardianship authority
-> husband and wife must appeare
at the mediator
-> they will be informed only about the
opportunity of mediation
Consiliation in the canon law
1. Divortium totate/processus vinculare
->marriage bond was „protected” by dispensation
2. Divortium particulare/separatio
->vicar conjured up the parties
->used special religious arguments
->informed the court
3. Claim of the confessional prosecutor against:
-concubines
-husband and wife living separate
-adulterous
->the substance of these processes was the protection of a valid
marriage
Consiliation in
the
Protestant and
Jewish
confessional
law
 Proceeding belonged to state courts in matrimonial cases of Protestants
and Jews in Hungary
 These judged by confessional material law but state process law
 Consiliation by pastor or rabbi was condition to bring an action for divorce
 Pastor or rabbi tried three times (!!) to consiliate the parties
->biblical marriage covenant
->faithfullness
->forgiveness
 Reasons of the parties had to be recorded by consiliator
 He wrote out a certificate about the insuccess of the consilitation
 The certificate had to be attached to the divorce action
A special institute of the
Jewish divorce law: Get
(Moshe Rynecki, 1930)
 Ketubah (marriage document)
 Get (divorce document)
 Both have a contractual nature
 Get: may provide for matters such as
1, custody of the children
2, and their maintenance
3, and property settlement
->either party may withdraw from it, on the
question of the dissolution of the marriage
only, if they can satisfy the court of a desire
to restore matrimonial harmony
-> in such a situation all the recognised
matrimonial obligations continue to apply
-> pecuniary conditions stipulated by the
parties in it would still be valid and
enforceable, though the marriage state
continues to exist
->reason: interpretation of marriage as
covenant
Case of
Júlianna T.v. János S.
Pécs, 1872-1879
 Parties married 1869, Haraszti
 Evangelica reformata
 1872: 1th divorce action
-divorce causes: 1. adultery
2. unforgiving hate
-no minor children /property vindication
-attached certification about the pastoral
consiliation (3*) and about the court
consiliation (1*)
-adultery was not witnessed
-> claim was dismissed by the royal court
-royal tribunal:
separation for 2 month for reconsiliation
if they would not reconsiliate during the
separation, the court consiliation ought to be
repeated
-royal Curia: affirmed this judgement
 1879: 2nd divorce action
->separation and the repeated court
consiliation did not lead to reconsiliation
->legally binding divorce judgement of the
royal Curia: 1879
Consiliation
in Marriage Act
1894
„I don’ t love my
wife anymore and I
will not reconsiliate”
 No confessional consiliation
 Compulsory court consiliation after
bringing an action
1. when the validity of the marriage
bond was contested
(no consiliation by nullity processes)
2. by separation from bed and table
3. by divorce processes
-> court consiliation was not efficient
kept on the 1th hearing
simple question
simple answer with a short
motivation
Civil Procedure Code
1911
Sándor Plósz
„There are two important
principles in front of each
other: the private authonomy
of the parties and the state
interest. The second means that
we have to preserve the
marriage preferably.”
Types:
1. Previous court consiliation before
bringing the claim
not compulsory
parties were heard together, without
accompanying
2. Previous court consiliation after
bringing the claim
compulsory
if there was no 1th type of consiliation
more than 30 days expired since the 1th
consiliation
3. Court consiliation during the process
compulsory
there was not permitted to held hearing
on the day of the consiliation
the judge could order the repeating of
the consiliation
What can
mediators learn
from
consiliators?
 Goal of consiliation
- parties should be very sober-minded
- divorce shoul be only the last get-out from a wrong marriage
 Conclusions
- return to the consiliation is unnecessery
- confessional mediation was the most effecient type in the past
- church service can function as voluntary mediation today also
->they can realy help to dissolve the marriage conflict not only to
reserve the marriage bond
Changes in
Family Law II
The development of state child protection in
the age of modernisation.
The interpretation of children's rights. Changes
in the status of legitimate and illegitimate
children from traditional law to emancipation.
The enforcement of the "best interests of the
child" in the Hungarian divorce law.
The "best interests of the child" in the
regulation of parental custody
Kinship
(cognatio)
 Traditional social structure:
extended family -> clan
 Community of property
„communio sanguinis et juris”
-> community of blood and rights
division of community property (divisio)
-> each male descendant is also entitled to the property of the other male descendants
-> fratres condivisionales
 Types of kinship
1. cognati (on the female side) / agnati (on the male side) -> born from valid marriage
2. ascendentes – descendentes / collaterales
3. full relationship / half relationship
4. affinitas
 Degrees of kinship
->a Germanic canon law (how many degrees of descent link the descendant to the common
ancestor)
Paternal power (patria potestas)
-> in the extended family and in the undivided (noble) family, the cohesive force is
paternal authority
-> a symbol of legal collectivism
- content:
1. Child rearing
2. Domestic discipline
3. He could give his son as a surety for himself, demand him back from everyone
4. Representation of family members
5. If his son died before class (division), he became the guardian of the
grandchildren
6. The father administered the property of the deceased mother until the sons'
heirs reached the legal age and the daughters were married
7. He marrys off his daughters
8. Administration of undivided family property
no obligation to account
limited right of disposal: with consent of sons, except in case of necessity of
last resort
father and sons are co-owners (not in a position of succession)The birth of Vajk
in the Pictorial Chronicle
„Division
The father hands over in kind to the heirs the property
left by the first wife, Margit Molker, as a maternal
inheritance, valued at HUF 2.945;
Half of the value of land valued at HUF 120 of the
common property will be handed over after auction,
while half of the value of other property valued at
HUF 3,777 50 will be handed over immediately in
cash;
Finally, further real property is transferred
"irrevocably, with ownership right, but with the right
of usufruct until death" to his legal descendants
immediately, with the obligation to keep the building
in good repair.
In return, the heirs waived all further claims and
allowed their father or grandfather to make a free
will". Pécs 1863
Guardianship
(tutela)
I. until the 13th century
- Representation and care of orphans carried out by the male members of the
community of undivided property
- The community of property of brothers/cousins often survived the division
-> no need for guardianship
II appearance of guardianship in 13th century
- Minor orphaned child has a guardian
- The closest male relative / relatives on the paternal side
(they would be entitled to inherit after the child)
- Maternal relatives on the maternal line are the guardians if the child is
orphaned in the paternal line
- Guardianship is a right, not a responsibility
-> asset management
-> no accounting
III.
Guardianship in
the traditional
customary law
(1514 – 1715)
- Tripatitum I. 112.
- "Guardianship is a power rightly given and granted for its protection, who,
not being of full age, cannot defend himself."
- The reason for the guardianship: inheritance of the property, i.e. not personal
protection
- Acting in good faith and with the best interests of the minor in mind
- No detailed rules
-tutor testamentarius
this could be protested by the nearest male relatives
fraud
-tutor legitimus
1. the surviving parent until remarriage
2. the closest heir of the child
-tutor dativus -> from the end of the 16th century
(royal / municipal / landlord order)
IV. Guardianship from 1715
Reason for the creation of the Guardianship Office:
- multiple guardianship in a will
- in case of dispute, the noble county / city decides
Act LXVIII of 1715
"for the relief of the miserable and almost neglected condition of
orphans, and for the provision of guardians and caretakers for
them"
- In the event of orphanhood, the relatives are obliged to inform the
deputy bailiff of the county where the orphan's property is located
- Inspection of the premises (deputy bailiff, slave judge, jury with
relatives)
- Inventory -> submission to the next county assembly
- The general assembly appoints a guardian from among suitable
persons
- The guardian shall prepare an annual account
- Guardian's fee (1/6th of the annual income of the assets managed)
- If he fails to fulfil his duties, he is dismissed and receives no
remuneration
- Orphan is under guardianship until legal age, cannot dispose of
property
Orphans and abandoned children
church care homes
• Pietist orphanage in Nemescsó 1740
• Catholic orphanage in Kőszeg 1741
The
development
of state child
protection in
the age of
modernisation
1. mercantilism -> the welfare of the
state also depends on the
population
2. extreme infant mortality
3. the potential of illegitimate children
is exploited by the state and the
economy
 Vienna: setting up a maternity hospital
as part of the general hospital system
 Decree of 8 September 1784, § 5
-> officials are instructed that parents
of girls should inform their children
that, even though they became pregnant
out of wedlock, it is no longer a public
shame
Children's home network in Hungary for about 2000 orphans (1750)
9 state-run children's homes
4 county children's homes
18 municipal orphanages
45 church orphanages
29 association children's homes
Act XX of 1877
-> Uniform regulation of guardianship
Act XXII of 1886
-> the municipality is responsible for the care of abandoned children
Act XXI of 1898
-> rescuing abandoned children is a public duty
-> the state supports the upbringing of orphans up to the age of 2
Act VIII and XXI
1901 on child’s
protection
institutions
 foster homes set up for the purpose of public care
 public orphanages
 correctional institutions for neglected children and juvenile
offenders
 foster care network (from birth to 7 years)
„angel making”
- abortion
- taking newborn babies into care
- special education network
- church and civil associations for child protection
Adoption
 a means of caring for an heir, not
a means of keeping a child in the
family
 contractual relationship
 predominantly adoption of adults
 adoption of a minor with parental
consent
 partial legislation
Act XX of 1877
curia decisions
 formal approval
 continuity until 1952
The interpretation of children's rights
Changes in the status of legitimate and illegitimate
children from traditional law to emancipation
Origin of the
Children’s rights
in the Western
tradition
 1989 Convention on the Rights of the Child (CRC)
 1924 Geneva Declaration of the Rights of the Child
 1959 Declaration of the Rights of the Child
 1948 Universal Declaration of Human Rights
 1966 twin covenants on civil, political, and cultural rights
Priority of the
natural family I
 Aristotle (384-322 BCE)
- “kin altruism”
- human “have a natural desire to leave behind them an image of themselves”
- in the state that separated natural parents and children, filial love would become “too
dilutes”
 Thomas Aquinas (1225-74)
- humans are “family animals” before they are “political animals”
- parentage is not just a natural inclination and duty, aimed to perpetuate the human
species in general and one’s own family in particular
- parentage engenders a Christian privilege and responsibility to participate in the creation
of God, to cultivate the uniquely human qualities of children
Priority of the
natural family II
 other medieval theologians and jurists
- special care and “justice for the fatherless” and orphan children
- as the Old Testament, so Jesus warned against harming or misleading children
 children’s rights in the canonic law
- right to life and the means to sustain life;
- right to care, nurture, and education,
- later right to contract marriage or to enter into a religious life;
- right to support and inheritance from biological or adoptive parents
- illegitimate children: rights to oblation in a monastery or legitimation
- poor children had special rights to relief or shelter
- abused children had special rights to sanctuary and foster care
- abandoned or orphan children: right to adoption / to founding houses and orphanages.
• early modern Protestant and Catholic polities alike slowly absorbed
into the state system of family law born after the Reformation
Paternal or parental
authority?
“conjugal society”
„Children, I confess, are not born in this full state of equality,
though they are born to it. Their parents have a sort of rule and
jurisdiction over them, when they come into the world, and for
some time after; but it is but a temporary one. The bonds of this
subjection are like the swaddling clothes they art wrapt up in, and
supported by, in the weakness of their infancy: age and reason as
they grow up, loosen them, till at length they drop quite off, and
leave a man at his own free disposal.”
John Locke (1632-1704)
The Two Treaties of Civil Government
Thoughts Concerning Education
Protestant natural lawyer about the children’s rights
 Mary Wollstonecraft (1759-97)
- defense of the traditional family as the ideal place to have and raise children
- “cascade of duties and rights concerning children”
- “natural justice”
- “most sacred duties”
 William Paley (1743-1805)
- public education for every child
 William Blackstone (1723-1780)
- matrix of natural rights and duties of parents and children
- duties of parents are the correlatives of the rights of children to receive support,
education, and care, which continue even after divorce /the parents die
New approach
I. personal and property rights of so-called legitimate male and female children with
a view to eliminating gender inequality
II. legal relationship of so-called illegitimate children to their mothers, natural
fathers and their relatives
Children’s rights
in Hungarian
legal development
 failure of the 1795 draft private law code
 natural lawyer protected the traditional family as
optimal place of having children
 Sámuel Dienes: Baron Martini's statement on natural law, 1792
 Benjamin Nánásy: The will according to the Hungarian laws, 1798
 Benjamin Nánásy : The legal, ordinary heir of the Hungarian citizen,
1799
 János Herepei: The rights of women, 1797
 Sándor Kövy: A brief summary of Hungarian laws for children, 1798
Domestic abuse
The possibility
of using the
native legal
language and its
impact between
1805 and 1844
I. Act IV of 1805
II. Dictionaries
 Baranya, Zala, Veszprém
 Private individuals
 Royal Hight Court 1837
 chancellery 1845
III. Legal literature
 Illés Georch, 1804
 Pál Szlemenics, 1823
 István Czövek, 1822
 Sándor Kövy, 1822
 János Alsóviszti Fogarasi, 1837/39/62
 János Újfalusy Nepomuk, 1825
 László Soosmezei Vajda, 1830
Equal rights of female children
István Werbőczy's law book, the Tripartitum (1517)
- a child became a member of the family community if the father’s
- will so directed he/she was born in marriage or legitimized
- among legitimate children, girls were freed from paternal authority
- only by marriage if their fathers had died earlier, the boys were
under guardians until they reached the legal age, but the girls,
being considered of easy mind, until they were married
- personal and property autonomy of married and widowed
- daughters of serfs inherited in equal shares with their sons after
1840
Pro memoria
January 17, 1825
 I, István Fábián, a resident of Kis-Sentmárton, (…) have entered into this
indissoluble agreement with my daughter Anna, her husband, my son-in-law János
Toth, from Vaszjló to my house: after the death of my wife and myself, my house
and all my property shall be his.
 And the other half of my goods, since I need another son-in-law, shall go to the
daughter, who will be the second one to marry. (…)
 As I have no need of more sons-in-law, my third daughter, that is, the last to be
married, shall go out of the house. (…) she will receive 80 Ft in money and a belly
of beef. But if she either does not want to marry (…) the two sons-in-law shall have
her share, but they shall maintain and clothe her until her death.
 (…) if my son-in-law John of Toth leaves me, he shall receive nothing;
 (…) and if my daughter should die without seed, and my son-in-law should not like
to remain in my house, he should get a steer of a year old with a calf. (…)
 And as long as I am the manager of my house, I shall require that both I and my
wife shall be honoured until we die, and if we are weak, that we shall be maintain in
need, that these things may be so, I will, and will have it so.
István Fábián Anna Fábián 3 witnesses
Hungarian women’s movement
Dezső Márkus: - women’s equalization
- problems of the socially deprived people
- legal status of children born out of wedlock
Drafts of Civil Code in Hungary (1900 –1928)
Jogtudományi Közlöny (Legal Gazette)
Ügyvédek Lapja (Lawyers' Journal)
-> encourage the courts applying customary law to adopt a more
favorable attitude towards illegitimate children.
Illegitimate
or
legitimate child
 Legitimate status:
1. Child born to married parents (the husband can contest the legal parentage
of the child)
2. marriage after the birth of the child / paternal acknowledgement
3. by a final court judgment (birth within 300 days of the dissolution of the
marriage)
"I, János Roßner, swear by the one living God that I have not had sexual
intercourse with the mother of natural child Schleicher András (i.e. the plaintiff),
born on 5 January 1868, during the 10 months counted backwards from the birth
of the child, as the time limit for procreation. So help me God.”
->Use of the so-called substitute oath as evidence in a suit for the recognition of
paternity (Pécs, 1873)
Statutory inheritance of illegitimate children
 Austrian Civil Code in force in Hungary (1853-1861)
 ITSZ (1861): partially restored Hungarian law
 from the 1870s onwards, case law recognized the right of
inheritance of a child born out of wedlock to the mother even if the
woman had legal descendants.
 Royal Curia ruled in 1905 (6059/1904) that "the illegitimate child is
entitled to inherit the father's property, regardless of whether the
father has a legitimate child”
 Dezső Márkus: punishing a child for life for the sins of the parents
is inhumane, unfair and unjust
Legal status
of minor
children born
in and out of
wedlock
regarding
maintenance
 Act IV of 1952 on Marriage, Family
and Guardianship
 customary law
 Act XX of 1877 on the Matters of
Guardianship
 Act XXXI of 1894 on Matrimonial Law
 Prime Ministerial Decree
 5th Draft of Civil Code (1928)
Antal Almási
Act
XXIX
of
1946
 Equality in family status, but NOT in the form and content of all relevant legislation
(custody, parental authority, maintenance)
 Principle 1
- to end discrimination on the basis of the origin of children
- the name should not express an evaluation
- born out of wedlock / not born out of wedlock
 Principle 2
- have equal status
- a relationship of kinship is established with the father and his relatives
- the relationship of succession between the relatives of a child born out of wedlock is
reciprocal
• presumption of legal descent extended every child from the presumed and invalid
marriages
• Principle 3
the relationship between a child and its father is in principle the same (not enforceable)
 Principle 4
registration of an imaginary father after the age of 3 (guardianship)
A Conservative Version of
European Family Law
Thinking
Treatyof Romeestablishingthe EuropeanEconomicCommunity,
signedon25th March1957
Is there a case
for conservative
family law in
Europe?
Rome Declaration
signed on 25th March 2017
Right to life versus depopulation
liberalising the right to abortion
Freedom to choose polarisation of society
the legal form of living together
same-sex marriage reduction in the number
of children born
‘Standing together is our best chance to (…) defend our common interests and values’ and ‘Taken
individually, we would be side-lined by global dynamics.’
‘We have built a unique Union with common institutions and strong values, a community of peace,
freedom, democracy, human rights and the rule of law, a major economic power with unparalleled
levels of social protection and welfare’.
The legal
justification for
conservative
family policy
and
the protection of
human rights
 Family law is the set of rules of the legal system which
(1) regulates personal and property relations
(2) arising out of marriage, the family and family-like legal relationships
(3) within the limits of state control, but
(4) respecting the individual rights of the person and
(5) the principles of equality.
 article 8 (Right to respect for private and family life) ‘(1) Everyone has the right to respect
for his private and family life (…). (2) There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others.’
European Convention on Human Rights (Rome 1950)
Right to life
versus
liberalising the
right to
abortion
 A fresco depicts
Romulus and Remus,
the mythical founders
of Rome, being
abandoned by a river.
Exposing infants was
a socially accepted
practice in ancient
Rome.
A 14th-century
miniature painting
portrays a
Christian baptism,
which granted a
kind of social
personhood to
babies in medieval
Europe.
‘pregnancy may be terminated only in
the event of danger or in the event of
a serious crisis of the pregnant
woman, under the conditions laid
down in this Act’ (§ 5, 1)
Protection in constitutional / family /criminal law
 "fetal life at conception deserves respect and protection;
 the protection of fetal life can be achieved by providing increased care
for pregnant women,
 ensuring conditions for the healthy development of the fetus is the
primary responsibility of parents;
 abortion is not a means of family planning and birth control;
 family planning is the right and responsibility of parents".
Act on the Protection of the Life of the Unborn Child
(Act No. LXXIX of 1992)
"The medical report
presented shall
record that the
pregnant woman
has been presented
by the health care
provider with a
clearly identifiable
indication of the
fetal vital signs of
the foetus.”
2022
 ‘a serious crisis situation is one that causes physical or mental distress or social impossibility’
(§ 5, 2)
Penal Code (§ 163): unlawful abortions
1. artificial termination of pregnancy
-> health /life of the pregnant
2. protection of the foetus under constitutional law
-> the purpose of unlawful termination of pregnancy is the destruction of the
foetus.
Freedom to choose the legal form
of living together
 'Hungary protects the institution of marriage as a
community of life between one man and one woman,
based on voluntary decision, and the family as the basis
for the survival of the nation. The family relationship is
based on MARRIAGE and the PARENT-CHILD
RELATIONSHIP. The mother is a woman, the father a
man".
de facto partnership
woman – man
or
same-sex partners
registered
partnership
same-sex
partners
marriage
woman - man
From June
2009
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022
Number of registered partnerships
Man 49 61 24 32 21 30 36 50 49 86 66 80 76 98
Woman 18 19 21 9 9 12 29 34 38 44 43 44 64 53
Total 67 80 45 41 30 42 65 84 87 130 109 124 140 151
Age of the spouse at registration
42,2 38,6 36,0 38,4 36,1 35,2 36,6 39,8 37,3 40,3 38,1 38,0 38,4 39,3
Age difference
8,2 8,1 6,2 6,3 6,1 7,9 7,7 7,6 6,3 8,2 8,4
The „best interests of the child”
in the regulation
of parental custody
after divorce or separation
The types of custody
arrangements
I. Sole custody
- one parent is granted legal and
physical custody of the child
- the other has (limited or
supervised ) access rights and
visitation right
- today: no difference by sex of
parents
- traditional law: the child has not
been placed with the parent who
has been found at fault in the
divorce reason
Joint custody
-both parents share legal custody and decisionmaking
responsibilities
- both parents must work together to make
decisions that are in the child's best interests
1, child lives primarily with one parent
2. the child spends equal time with both parents
- postmodern form: bird's nest custody
Split custody
- each parent has custody of one or
more children
- before the family law codification in
the middle of the 20th century it was
usualy used when parents had gild
and boy children too
Thirdpartycustody
-whenneither parent is considered capable of
caring for a child or when the child is in danger
due to parental abuse or neglect
- a common solution in secular family law until
the mid-20th century
- manifestations of religious discrimination at
the turn of the 19th and 20th centuries
- the question of when state power is justified to
intervene in family relations
Thank you
for your
attention!