Interim Decision #1345

Interim Decision #1345

MATTER of SONAAD

In VISA PETITION Proceedings

A-12780495

Decidedby Board May 25,1964

Since there is no common-law marriage under the law of Hungary, no relationship was created between petitioner and beneficiary by reason of the latter's

extramarital cohabitation with petitioner's mother from 1944 until their

marriage in 1960. A valid stepparent-stepchild relationship was not created

until the formal marriage in 1960 at which time petitioner was 28 years old.

Consequently, petitioner is not a stepchild within section 101(b) (1) (B), Immigration and Nationality Act, as amended, and is ineligible to petition for

second preference quota status on behalf of beneficiary as her stepfather.

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

section 203(a) (2) of the Immigration and Nationality Act on behalf

of her stepfather, a native and citizen of Hungary, 70 years old, male.

In support of the visa petition there was submitted a marriage certificate showing that the petitioner's mother and her stepfather were

married at Budapest, Hungary on June 9, 1960. According to our

prior order of May 24, 1963, the District Director, New York District,

denied the visa petition on the ground that the beneficiary cannot be

considered the petitioner's father or parent as defined in section 101

(b) (2) of the Act because the petitioner was 28 years of age when

her mother and the beneficiary were married in 1960, thereby creating

the status of stepparent and stepchild; as a consequence thereof, she

is not a child as defined in section 101(b) (1) (B) of the Act'

At oral argument on May 9, 1963 the petitioner's representative, her

husband, asserted that the beneficiary and the mother of the petitioner

I Section 101(b) (1) (B) defines the term "child" to include a stepchild provided the child had not reached the age of 18 years at the time the marriage

creating the status of stepchild occurred.

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lived together as husband and wife from 1944 until their marriage at

Budapest, Hungary on June 9, 1960. He alleged that under Hungarian

law the relationship of the petitioner's mother and the beneficiary

ripened into the status of a common-law marriage after they had lived

together continuously for a period of one to five years. The case was

remanded in order to afford the petitioner an opportunity to establish

that her mother and her stepfather acquired the status of common law

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husband and wife under the law of Hungary in 1944 when the petitioner would have been 13 years of age and that a valid relationship of

stepparent and stepchild under the immigration laws was created.

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 they 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 commonly owned property during the period of living together, and only

in cases where the parties have ultimately married and their commonlaw relationship has grown into marriage, will the unity and continuity

of their entire economic situation warrant the application of the rules

relating to 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 parties could operate retroactively to create

a legal relationship nuns pro tune 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 Director 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 husband 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 of the widow, Lajos &head, in an apartment

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at a certain address in Budapest starting from the year 1944 and that

they are continuing to live together. The second document submitted

is a certificate to substantiate the report of change of permanent residence by Hungarian male citizens issued by the Hungarian police on

August 1, 1945 and shows that the beneficiary and his landlord, Mrs.

Kalman Jades (the petitioner's mother) reside at the same address

in Baapest, Hungary. The Board explained to the petitioner's husband that he should have submitted the documents to the field office.

In view of the disposition which we made of this case, it is believed that

a remand to consider the newly offered evidence is unnecessary.

Under date of May 8, 1964 a report entitled "Legal Aspects of ExtraMarital Cohabitation in the Hungarian People's Republic," prepared

by Dr. William Solyom Fekete, European Law Division, Library of

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Congress, was received. The report indicates that the Hungarian

Marriage Law was adopted in 1894 2 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 provision 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 legislature

enacted the Law on Domestic Relations . 2 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.* This statute has

completely changed the legal system of Hungary which until then

was unique in continental Europe. The edict implementing the Civil

Code 5 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."

'Law No. XXXI of 1694.

' Law No. IV of 1952 on Marriage, Family, and Guardianship.

' Law No. IV of 1959.

oEdict No. 11 of 1960.

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Although the Law on Domestic Relations is not a part of the Civil

Code, the courts apply the same rule in other fields of the law, and

regard all earlier court decisions as superseded or repealed, and the

Supreme Court revised even its own opinions on the subject of domestic relations, repealing or amending some of them in 1961. Consequently, the decision of the Royal Curia handed down on April 7,

1906'inay not- be regarded as a valid ruling. To facilitate the understanding of the distinction between a valid marriage and extra-marital

cohabitation, the parties thereto will be called "spouses" (Altaastcirs)

and "cohabitants" (e/ettars, literally translated: life-partners), respectively.

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 Supreme 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 cohabitation cannot be regarded as immoral, or as one

negating rights, and the socialist law protects the cohabitant, and

Assures certain rights, usually ftnaucial benefits, nevertheless, the legal

and other distinctions between persons living in a marriage and in

extra-marital cohabitation must be stressed. In a similar question

the -Supreme Court held that according to Section' 27 of the Gait

(Law on Domestic Relations) conjugal community of property may

only occur between spouses; between parties to an extra-marital cohabitation, only a comminity 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 Supreme 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. Iii 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

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long periods as obtaining certain rights arising from such extramarital cohabitation. These decrees recognized the similar ancillary

rights mentioned previously of the right of the cohabitant of a deceased tenant to continue with the tenancy of a dwelling and regarding

the cohabitant as a relative in regard to the application of the Ptk.

(Civil Code). It stated however that the protection of interests in

certain relations identical to that of spouses however does not mean

completeness and identity. It was pointed out in this respect that

the Hungarian legal system does not guarantee the right of the cohabitant to alimony, to bear the name of her cohabitant, and to intestate

inheritance, and it does not regard the relation of cohabitants as having identical merit as marriage.

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 take 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 the 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, the 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

Hungarian 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 relationsIlip existing between legally

married spouses.

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In the instant case, it is claimed that an extra-marital relationship

arose in 1944 but that the parties actually did not become legally

married until 1960. We think it proper to conclude that until there

was a ceremonial marriage in 1960 between the beneficiary and the

petitioner's mother, there was no valid relationship of stepparent

and stepchild between the two. During the period the extra-marital

relationship existed, no relationship of stepparent and stepchild was

created between the beneficiary and the petitioner. It is concluded

that the petitioner did not become a stepchild until 1960 when she was

28 yens of age and that under the immigration

ration laws, the relationship

of stepchild and stepparent was not created within the limitation of

18 years of age. The petitioner is not eligible to file a petition for her

stepparent.

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.

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