a)  Hungary / b)  Constitutional Court / c) / d)  20-12-2012 / e)  43/2012 / f)  Annulment of certain provisions of the Act on Protection of Families / g)  Magyar Közlöny (Official Gazette), 2012/175 / h) .
Keywords of the systematic thesaurus:
General Principles - Certainty of the law.
General Principles - Clarity and precision of legal provisions.
General Principles - Equality.
Fundamental Rights - Equality - Criteria of distinction - Sexual orientation.
Fundamental Rights - Civil and political rights - Right to family life - Succession.
Keywords of the alphabetical index:
Family law / Family life, definition / Family, concept / Family, definition / Homosexuality / Succession, succession law / Unmarried person, discrimination.
The Act on Protection of Families had an excessively restrictive interpretation of the notion of family when it stated that the family is defined as marriage between a man and a woman plus their direct descendants or adopted children. In addition, excluding registered partners from inheritance was in breach of the Civil Code to an extent that could not have been resolved through interpretation.
I. The Commissioner of Fundamental Rights filed two connected petitions with the Court. According to these petitions the legislator may not exclude existing, functioning and recognised same-sex partnerships from the concept of family because it constitutes an infringement of the rights of the persons concerned, and at times even of the rights of their children, and because it leads to legal uncertainty given that the challenged Act is incompatible with certain provisions of the Civil Code which recognise the succession rights of the excluded parties.
First, the Commissioner requested the Court to review the constitutionality of Section 7 of Act CCXI of 2011 on the Protection of Families (hereinafter, the "Act"). According to the Commissioner, the contested provision raised the following constitutional concerns. It violated the prohibition of discrimination ensured by Article XV.2 of the Fundamental Law and it was contrary to the right to equal dignity ensured by Article II of the Fundamental Law as well as the protection of marriage enshrined in Article L of the Fundamental Law. The contested provision specified only marriage as a basis of the family. By doing so, it excluded the recognition and protection of ' marriage-like' relationships of those who live in registered partnerships (same-sex partners). Consequently, the Act made a distinction not only on the basis of the forms of partnerships, but also on the basis of the sexual orientation of the persons choosing them. The Commissioner also pointed out that the Act's concept of family was not only detrimental for same-sex registered couples but also heterosexual couples who wish to live in partnerships other than marriage.
Second, the Commissioner initiated constitutional review of Section 8 of the Act, according to which, if the deceased did not leave any last will (in case of legal succession), only relatives (related in collateral line or linear descent), persons in an adoptive relationship and the spouse shall inherit. The Commissioner found these rules to be contrary to the Civil Code that made possible legal succession also within registered partnerships. This provision would have entered into force on 1 July 2012, but the Constitutional Court suspended it with its Decision 31/2012 and reviewed it on its merit in its current decision.
II. First of all, the Court reviewed the constitutionality of Section 7 of the Act, according to which the concept of the family had been determined as a system of relations which generates an emotional and economic community of natural persons, based on the marriage of a man and a woman, next of kinship or adoptive guardianship. The Court has found this concept of family extremely narrow. According to the reasoning, the State should protect in the same way the long-term emotional and economic partnership based on the same purpose (for example those partnership relations where the couples raise and take care of each other's children, those couples who do not have any children or are not able to have any children because of other circumstance, widows, grandchildren cared by grandparents, etc.). If the legislature determines rights and obligations concerning families, it cannot withdraw rights from those people who intend to form a family without marriage but with another long-term emotional and economic partnership. The already existing level of the protection of partnerships shall not be reduced.
Article L of the Fundamental Law contains a constitutional guarantee for the protection of the institution of marriage, which is defined as "the union of a man and a woman established by voluntary decision", as well as of the family "as the basis of the nation's survival". However, the State's duty to protect families and marriages should not result in any kind of direct or indirect discrimination for children based on the difference that their parents raise them within marriage or in a different type of relationship. Taking all of these into consideration the Court declared that the concept of family in the Act provides a reductive definition compared to Article L of the Fundamental Law, and annulled it.
Second, the Court reviewed the constitutionality of Section 8 of the Act affecting rules of inheritance. The Court emphasised that the Civil Code contains the rules governing the basic regulations of intestate succession. Under the Civil Code, a registered partner is entitled to the same inheritance rights as a spouse. In contrast with this, the challenged Act consistently neglected to mention registered partnerships, which could result in the exclusion of registered partners from legal succession. It could happen, for example, that if the deceased person does not have any descendants under the Civil Code the registered partner of the deceased is the legal successor, while under the Act the brother or sister of the deceased is the legal successor.
The legal rules of inheritance have to be unambiguous. Section 8 of the Act was, however, in breach of the Civil Code to an extent that could not be resolved by way of judicial interpretation, thus it violated legal certainty. Therefore the Court annulled the contested provision.
III. András Holló and Miklós Lévay attached a concurring opinion, István Balsai, Egon Dienes-Oehm, Béla Pokol attached dissenting opinions to the decision.
- Decision 31/2012, Bulletin 2012/2 [HUN-2012-2-002].