SCHAAD

                                                   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 pro-

vided 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-


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 common-law 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 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 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 extra-marital 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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