SCHAAD
The case comes forward on appeal from the order of the District Director, New York District, dated November 22, 1963 affirming the original order of denial dated March 20, 1963 and certifying the case to this Board.
The petitioner, a native of Hungary and a naturalized citizen of the United States, 32 years old, female, seeks preference quota status under
At oral argument on May 9, 1963 the petitioner‘s representative, her husband, asserted that the beneficiary and the mother of the petitioner
The memorandum of the District Director supporting the decision of denial of November 22, 1963 indicates that petitioner was advised to submit any evidence possible that would be pertinent to the issue of when she acquired the status of stepchild. She submitted a letter from a lawyer in Budapest, Hungary stating in effect that if two persons had been living together in a common-law relationship and subsequently entered into a valid marriage, their commonly owned property is disposed of as if thеy had been married from the beginning of their common-law relationship. This letter cited a ruling of the Supreme Court of the Hungarian People‘s Republic published in August 1962. In his letter the Hungarian lawyer states that the court decision sets forth that where parties have lived together and have acquired сommonly owned property during the period of living together, and only in cases where the parties have ultimately married and their common-law relationship has grown into marriage, will the unity and continuity of their entire economic situation warrant the application of the rules relating tо married couples. The District Director concluded that nowhere was it set forth that the Hungarian court sought to apply this legal fiction generally to all common-law relationships which ultimately ripened into a legal marriage nor had the court ruled that the subsequent marriage of the рarties could operate retroactively to create a legal relationship nunc pro tunc from the date of its very inception; to the contrary, if a true common-law marriage had been entered into, there would be no necessity for a subsequent legal marriage. The District Directоr concluded that the evidence submitted pertinent to the issue of when the petitioner acquired the status of stepchild is not sufficient to warrant a change in the original order of denial and affirmed the original order of denial dated March 20, 1963.
At oral argument on February 5, 1964 the petitioner‘s husbаnd submitted two translated documents. The first document dated December 6, 1963 at Budapest, Hungary from Dr. Laszlogree to the effect that the petitioner‘s mother, a widow, and her daughter, the petitioner, up to the date of the marriage of the latter, lived in joint housekeeping with the second husband оf the widow, Lajos Schaad, in an apartment
Under date of May 8, 1964 a report entitled “Legal Aspects of Extra-Marital Cohabitation in the Hungarian People‘s Republic,” prepared by Dr. William Solyom-Fekete, European Law Division, Library of Congress, was received. The report indicates that the Hungarian Marriage Law was adopted in 18942 and remained in force with amendments until 1952. This law does not mention common-law marriage and no other statute enacted prior to World War II contained any prоvision on this subject. Therefore, the decisions of the Royal Curia (Supreme Court of Hungary) in which the customary law of the country was expressed, are the only source from which pertinent information may be gathered. On May 7, 1906 the Royal Curia held that according to the continuous judicial practice in Hungary, extra-marital cohabitation of a man and woman, as a sexual relation contrary to the moral opinion of the community, cannot give rise to a civil law claim enforceable before the courts.
The Marriage Law of 1894 was repealed in 1952 when the legislaturе enacted the Law on Domestic Relations.3 This law is still in force today and although this Law on Domestic Relations includes no reference to common-law marriage, its commentators usually do discuss its aspects, especially from the viewpoint of property relations.
In 1959 the Civil Code of the Hungarian People‘s Republic was enacted which entered into force on May 1, 1960.4 This statute has completely changed the legal system of Hungary which until then was unique in continental Europe. The edict implementing the Civil Code5 not only repealed all statutes pertaining to civil law, but also such court decisions. Section 5 of this edict even prohibited the “interpretation of the provisions of the Civil Code according to the legal principles formulated in the practice of the judiciary previous to the entering into force of the Code.”
The report then sets forth several cases where the cohabitant is recognized in regulations dealing with tenancies, widow‘s pensions, the inclusion in criminal law of the cohabitant under the concept of relatives although distinguishing it where the statute simply mentions the term “spouse,” court suits in forma pauperis, and in matters of inheritance.
The Suрreme Court reversed the trend in lower court decisions which were inclined to equate the property relationship of cohabitants with those of spouses by using the analogy of conjugal community property, holding that although the relation of persons living in extra-marital cohabitatiоn cannot be regarded as immoral, or as one negating rights, and the socialist law protects the cohabitant, and assures certain rights, usually financial benefits, nevertheless, the legal and other distinctions between persons living in a marriage and in extra-marital cohabitation must be stressed. In а similar question the Supreme Court held that according to Section 27 of the Csjt. (Law on Domestic Relations) conjugal community of property may only occur between spouses; between parties to an extra-marital cohabitation, only a community of acquisition may occur. Other cases were cited which dealt with joint acquisitions by cohabitants living together in an extra-marital cohabitation.
After the enactment of the Civil Code the principles of judicial practice as expressed in earlier court decisions were no longer applicable and the Suprеme Court rendered a series of decisions and opinions in which the Court rephrased or rewrote some of the more important problems of the court in order to bring the solution of these problems in line with the Civil Code and the principles laid down therein. In the course of this work the Supreme Court restated its position on the general attitude and on the property relations arising from extra-marital cohabitation by stating that section 51 of the Hungarian Constitution provides that the Hungarian People‘s Republic protects the institution of marriage and family. It recognized cohabitation or extra-marital relationships which continued for
The Supreme Court expressed its opinion several times to the effect that the legal and other distinctions existing in principle between spouses and parties to an extra-marital cohabitation must be stressed, therefore, the relation of cohabitants may not be regarded as legally identical with the relation arising from a marriage. It was further stated that the application of the rules of Chapter 4 of the Law on Domestic Relations to the settlement of property relations between cohabitants which arose during their cohabitation may only tаke place if the parties subsequently contracted a marriage and, thus, their relation as cohabitants grew into a marriage, when the unity and continuity of their joint husbandry justifies the application of the rules pertinent to spouses to the liquidation of their entire legal relationship. If this is not thе case, cohabitants may not invoke the application of the measures of family law applicable to spouses to the settlement of their property relations, but the rules of civil law shall apply to the adjudication of mutual claims arising from their cohabitation.
In summary, thе report from the Library of Congress indicates that while the parties to an extra-marital relationship or cohabitation do have some recognition for various collateral purposes incidental to the relationship, the distinction between a spouse and a cohabitant is firmly drawn in the Hungarian Law between persons living in a marital status and those in extra-marital cohabitation. The protection of interests in certain extra-marital relations, or cohabitants, as opposed to that of spouses, does not mean completeness of identity. The Hungаrian legal system does not guarantee the right of the cohabitant to alimony, to bear the name of her cohabitant, and to intestate inheritance. It is concluded that although the extra-marital relationship of cohabitants is recognized for some purposes under Hungarian laws, it is not equivalent to the relationship existing between legally married spouses.
ORDER: It is ordered that the order of the District Director, New York District, dated November 22, 1963, affirming the order of denial dated March 20, 1963, be and the same is hereby approved.