HUN-2008-3-009

a) Hungary / b) Constitutional Court / c)  / d) 17-12-2008 / e) 154/2008 / f)  / g) Magyar Közlöny (Official Gazette), 2008/180 / h) .

Keywords of the Systematic Thesaurus:

01.03.02.01

Constitutional Justice - Jurisdiction - Type of review - Preliminary / ex post facto review.

02.01.01.04.02

Sources - Categories - Written rules - International instruments - Universal Declaration of Human Rights of 1948.

02.01.01.04.04

Sources - Categories - Written rules - International instruments - European Convention on Human Rights of 1950.

02.01.01.04.08

Sources - Categories - Written rules - International instruments - International Covenant on Civil and Political Rights of 1966.

05.02.02.11

Fundamental Rights - Equality - Criteria of distinction - Sexual orientation.

05.03.34

Fundamental Rights - Civil and political rights - Right to marriage.

Keywords of the alphabetical index:

Protection of marriage, state duty / Same sex and different sex couples / Registered partnership law.

Headnotes:

The Registered Partnership Act, which accords recognition to unmarried and same-sex partnerships, is unconstitutional, as it downgrades marriage. However, a partnership scheme for homosexual couples only would be constitutional.

Summary:

I. In December 2007, the Hungarian Parliament adopted the Act on Registered Partnership, which would have enabled same-sex and different-sex couples to enter into registered partnerships. The Act was scheduled to enter into force in January 2009. However, in the spring of 2008 several petitioners sought its repeal before the Constitutional Court.

The petitioners argued that the Act contravened Article 15 of the Constitution which aims to protect marriage, because by legalising registered partnerships, it creates a "marriage-like institution" which would diminish the importance of marriage. They contended that the process of establishment of registered partnership is the same as in cases of marriage; partners have to declare their intention to enter into partnership before a registrar, and the ceremony is exactly as solemn as a marriage ceremony. The petitioners pointed out that the same legal consequences apply to marriage and to registered partnerships. The Act stipulates that in those matters which it does not regulate, the rules of the Family Act concerning marriage are to be applied analogously (Section 2.2). Last, but not least the petitioners drew the attention to the fact that registered partnerships can be terminated in a similar manner to a marriage. There is, however, an extra method of termination not available to spouses, in the form of termination by public notary. In the petitioners' view, swifter and more flexible provision for termination of registration may endanger the interest of the child.

The petitioners emphasised that the notion of marriage means a union exclusively of a man and a woman. This is what Article 15 of the Constitution protects. Therefore the Act, which introduces a marriage-like institution for same-sex couples, is unconstitutional.

II.1. In the first part of the reasoning the Court referred to its Decision no. 14/1995 (III.13.), where it pointed out that marriage "typically is aimed at giving birth to common children and bringing them up in the family in addition to being the framework for the mutual taking care and assistance of the partners". This Decision also emphasised that "movements have been started to protest against discrimination with respect to homosexuals. In addition, changes can be observed in the traditional family model, especially in terms of the durability of marriages. All these are not reasons for the law to diverge from the legal concept of marriage which has been preserved in traditions to this day, which is also common in today's laws and which, in addition, is in harmony with the notion of marriage according to public opinion and in everyday language. Today's constitutions - among them the Hungarian concerning its provisions on marriage and the family - consider marriage between a man and a woman as a value and protect it (Articles 15, 67, 70/J)."

In the case under review, the Court reaffirmed that marriage must be restricted to different-sex couples. In the Court's view, the wording of the most significant human rights documents it would also indicate that the family is perceived as the union of a man and woman: the right to get married is defined as the right of men and the right of women, while in relation to other rights the subject of rights are "persons" without any such differentiation (Article 16 of the Universal Declaration of Human Rights, Article 23 of the International Covenant on Civil and Political Rights; and Article 12 ECHR). The Court pointed out that the European Court of Human Rights has so far refused to apply the protections of this Article to same sex marriage and argued that Article 12 ECHR was intended to apply only to different-sex marriage, and that a wide margin of appreciation must be granted to member states in this area.

2. Secondly, the Court assessed the content of the special, express constitutional protection of marriage under Article 15 of the Constitution. In the Court's view, the protection of marriage under this provision means that the State should not discriminate between spouses and those not living in marriage. Moreover, the State should promote marriage and the family. This constitutional protection does not exclude the statutory protection of other kinds of personal relationships, but the legislator should take into account that the content of a registered partnership could not be identical to marriage. According to the Act, however, registered couples are entitled to almost all of the rights and duties granted to spouses. The process of establishment is the same as that of marriage. The new Act modifies the Act on Maintaining the Register so that registered partnerships have to be registered as well as births, marriages and deaths. This procedure follows the model of marriage. The registrar has competence in both ceremonies according to the same principles. The same also applies to other formal criteria, namely that the establishment of registered partnership should happen in public and solemnly. On the whole, therefore, registered partnerships result in the same consequences of marriage, with only a few differences:

1.     Only a man and a woman can enter into a marriage.

2.     A minor over 16 can marry with the permission of the guardianship authority, but cannot enter into a registered partnership.

3.     Registered partners are not permitted to adopt a child as adoptive partners together.

4.     A registered partner cannot adopt the child of his or her registered partner and it is irrelevant whether the child is related by blood or was adopted.

5.     Registered partners cannot use their partner's surname.

6.     An extra method of termination (termination by public notary) is available for registered partners.

The Court found these differences to be insufficient in relation to different sex partners who can enter into a marriage. Although joint adoption is prohibited regardless of the gender of the registered partners, the rules of paternal legal status and of the common child's surname are the same in a marriage and in a different sex registered partnership. Moreover, the presumption of paternity is statutorily established both in marriage and in registered partnerships between men and women. Secondly, although under the challenged Act registered partners by their status cannot use their partner's surname, it is always possible to change one's surname by an administrative procedure. The Court accordingly found that by offering all the same rights to different sex registered partners, the Act downgraded the importance of marriage, and thus violated Article 15 of the Constitution. The Court added however, that it would accept registered partnerships for gay couples, as they do not have the possibility of entering into marriage.

Under Article 42.2 of the Act on the Constitutional Court, an Act which has been promulgated but has not yet entered into force will not enter into force if it is held to be unconstitutional.

Justice András Bragyova attached a dissenting opinion concerning the notion of marriage and emphasised the equality of those wishing to enter into marriage with those who wish to choose other partnership forms. Justice Elemér Balogh and Justice László Kiss attached a concurring opinion to the judgment.

Cross-references:

- Decision no. 14/1995 (III.13.), Bulletin 1995/1 [HUN-1995-1-002].

Languages:

Hungarian.