Privileged Status of the Family Home Property in the Hungarian Family (Matrimonial) Property Law

Privileged Status of the Family Home Property in the Hungarian Family (Matrimonial) Property Law Presented by: Dr. Sápi Date: 23 February 2024 Introductory Thought - Roots for the privileged status of family home - Substantive family property law rules → focus on preserving the family's existential security - Ensuring that a minor or adult child in further education can use the family home Marital Property Community - Legal Property System - Hungarian matrimonial property law: • Marital property community = legal property law system  Undivided and equal proportion • Encompasses: assets that the spouses acquire together + separately during the existence of the community of property  Burdens of the joint assets and the debts arising from the obligations assumed by either spouse • Exclude: assets, burdens, debts - classified as separate property Specialties Of Presumed Consent For Contracts - Main rule: presumed consent for contract during the marital property community • Contracts concluded by one of the spouses on joint property shall be considered as a contract concluded with the consent of both spouses, unless a third party of the contract relationship who is typically a - creditor knew or should have known - that the other spouse did not consent to the contract • - Reason: safety of commercial transactions +trust in contracts Can be contested: • Did not consent • Third party knew about the lack of consent Two Exception - Exception 1 • For real estate jointly owned by the spouses • FAMILY HOME • No presumed consent → Expressed consent is required!! • REASON: protection of the apartment serving as the family's home • For de facto cohabitants there is NO legal provision protecting the family home  Reason: there is a different, separate legal property system for them (property acquisitions regime) - Exception 2 • Entry of joint assets to the individual company, business association as an APPORT • No presumed consent → Expressed consent is required!! • REASON: preventing the "hiding" of joint marital property (e.g. real estate) in business organizations. • Applicable rules: laws on companies The Definition Of Matrimonial Home - specific rules on the use and disposal of the matrimonial home - the matrimonial home is in most cases the FAMILY HOME - HCC protects the right of spouses and their children to use the dwelling regardless of - • Which of them owns, • Leases or • Rents the dwelling DEFINITION of the joint marital home • The existence of a valid marriage bond between parties • Cohabitation (=moved into the apartment together or separately for the purpose of living in it) • - Used by one or both, on the basis of ownership / usufruct / lease. MINOR CHILDREN of the spouses shall be given the right of living in the common home of the spouses. The Minor Child's Right To Use The Matrimonial Home - Primary way to settle matrimonial housing issues → AGREEMENT (preliminary arrangement) - - Agreement is valid: • Notarial deed • Private deed countersigned by an advocate • The CHILD needs SPECIAL PROTECTION (not only minor) To protect the minor child's right: • The parents can determine the provision of housing for the children in the event of the dissolution of their marriage in accordance with the way in which parental responsibility is arranged • Another child born after the agreement → preliminary contract on the use of the dwelling will be applied - The COURT can decide DIFFERENTLY (for the sake of the minor child) • The contract does not contain any provisions regarding the right of a minor child to use the apartment • The provisions of the contract seriously violate the minor child's right to a suitable apartment - Main rule: use of the housing for the joint minor child of the spouses must be ensured in the joint apartment of the spouses • Origin: Parental responsibility • Parents are obliged to provide housing for their child in their own household. - Child has a subjective right vis-à-vis - Minor child's right to use the home as a family member is SUBSIDIARY • Linked to the right to use the home of the parents OR • The parent who has been granted exclusive parental responsibility • If the parent will not exercise parental responsibility at all will not be entitled to use the dwelling exclusively - Unique solution: court shall entitle the other spouse to use the dwelling, who is entitled to exercise the right of parental custody over the minor child, even if the dwelling is the other's separate property The Minor Child's Right To Use The Family Home (De Facto Partners) - In the former Act: NO regulation - The Civil Code introduces the settlement new, previously unknown situation a - Absence of an agreement either party can request the court to arrange the further use of the apartment - different protection of marriage and cohabitation cohabitant partner is less protected - BUT!! the minor child entitled to use the dwelling deserves the SAME level of protection - independent right of minor children - Main rule: the former de facto cohabitant partner can use the apartment only, if the apartment belongs to him/her as a separate property The Child's Right To Use The Apartment Specialities - A child who has reached the age of 16 may leave the parents' place of residence: • Approval of the guardianship authority • Without the consent of the parents • If it is not contrary to child's interests - Civil Code: right to apartment by the MINOR children of the spouses, - BUT reaching the age of majority, will NOT result automatically the termination of the right - Parents are obliged to take care of the child • In need • In the event of education • Until his parents revoke the right Closing Thoughts - Ensure that the child, who is entitled to use the apartment does not have to leave the former family home - REASON: disintegration of the family can at least remain in his familiar, safe environment - This requirement cannot be interpreted so strictly, that must live in the shared apartment - Judicial practice: • “The court cannot deviate from the contract for the use of the former spouse's shared apartment solely on the basis that the minor child shall live in another apartment in the same city that is smaller but offers adequate living space.” - The most suitable environment for the child's physical and mental development must be provided.