Recognition of Foreign Marriages and Divorces: A Private International Law Guide

In the era of global mobility, it is increasingly common for Hungarian citizens to marry abroad or to have their divorce pronounced by a foreign court. These legal acts do not always take effect automatically in Hungary – the recognition of foreign decisions is a complex legal field governed jointly by EU regulations and national conflict-of-laws rules. Below, we present the applicable legal sources and practical issues.

Applicable Legislation

EU Law

• Council Regulation (EU) 2019/1111 (Brussels IIb) – on jurisdiction, recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility (applicable from 1 August 2022, replacing Brussels IIa – Regulation (EC) 2201/2003)
• Council Regulation (EU) 1259/2010 (Rome III) – on the law applicable to divorce and legal separation (enhanced cooperation)
• Council Regulation (EU) 2016/1103 – on jurisdiction and applicable law regarding matrimonial property regimes (enhanced cooperation)

Hungarian Law

• Act XXVIII of 2017 – on private international law (PIL Act / Nmjt.) – marriage (Sections 32–36), dissolution of marriage (Sections 37–40), recognition of foreign decisions (Sections 108–114), public policy clause (Section 12)
• Act I of 2010 – on civil registration procedures (At.)
• Fundamental Law of Hungary – Article L: definition of marriage

System for the Recognition of Foreign Decisions

Hierarchy of Legal Sources

The hierarchy of legal sources for recognising foreign decisions is as follows:

1. EU Regulation (Brussels IIb) – where the decision was rendered in an EU Member State
2. Bilateral international convention – where such a convention exists with the state that rendered the decision
3. PIL Act – for other (third-country) decisions

This hierarchy means that where an applicable EU regulation exists, it must be applied – national law applies only on a subsidiary basis.

Recognition of Decisions Rendered in EU Member States

Automatic Recognition Under Brussels IIb

Under Article 30 of the Brussels IIb Regulation, decisions rendered in Member States – including divorce judgments – must be recognised in all other Member States without any special procedure.

This automatic recognition means:

• No separate judicial proceedings are required for recognition
• The decision is effective in all other Member States from the moment it is rendered
• The certificate under Article 36 facilitates the procedure, but recognition operates even without it (the certificate is primarily required for enforcement)

Grounds for Refusal of Recognition (Brussels IIb Article 38)

Automatic recognition is not unconditional. Recognition may be refused where:

• The decision is manifestly contrary to the public policy of the requested Member State (Article 38(a))
• The respondent did not receive the document instituting proceedings in sufficient time to arrange their defence (Article 38(b)) – violation of the right to be heard
• The decision is irreconcilable with an earlier decision given in the requested Member State (Article 38(c)–(d))

Important: the court of the recognising Member State may not review the substance of the original judgment (Brussels IIb Article 71) – it may examine only the grounds for refusal.

Recognition of Third-Country Decisions

Procedure Under PIL Act Sections 108–114

Where the decision was rendered in a non-EU Member State (e.g., USA, Thailand, Vietnam, China, South Korea), the rules of the PIL Act apply:

Conditions for recognition (PIL Act Section 109):

1. The decision is final under the law of the state that rendered it
2. The court or authority that rendered the decision had jurisdiction – determined by the appropriate application of Hungarian jurisdictional rules to confirm the foreign court’s jurisdiction was not excluded
3. Recognition of the decision does not conflict with Hungarian public policy (public policy clause – PIL Act Section 12)

Civil Registration

For the civil registration of a foreign divorce in Hungary (At.), the following are required:

• An authenticated translation of the foreign judgment (OFFI – National Translation Office, or equivalent certified translation)
• The judgment’s finality clause or equivalent certification
• An Apostille (under the 1961 Hague Convention) or diplomatic legalisation – depending on whether the issuing country is a party to the Hague Convention
• In certain cases, a court recognition decision – where the civil registrar has doubts regarding the conditions for recognition

Judicial Recognition Procedure

Where the civil registrar cannot ascertain the fulfilment of conditions for recognition, or where objections are raised, judicial proceedings are required:

• The court examines the conditions for recognition under PIL Act Sections 109–114
• The court does not review the substantive content of the judgment – only the conditions for recognition
• The procedure is a non-contentious proceeding

The Public Policy Clause (PIL Act Section 12)

The public policy clause (ordre public) is one of the most important safety valves of private international law:

Foreign law may not be applied, and a foreign decision may not be recognised, if the result would be manifestly incompatible with Hungarian public policy (PIL Act Section 12).

Typical cases of application of the public policy clause:

• One party was deprived of the right to be heard in the foreign proceedings (violation of fair trial rights)
• The foreign decision violates fundamental human rights
• Application of foreign law would lead to a result manifestly incompatible with the fundamental values of the Hungarian legal order

Important: the public policy clause must be applied narrowly – it is not sufficient that foreign law differs from Hungarian law; the result must be manifestly incompatible.

Recognition of Foreign Marriages

General Rule

A marriage contracted abroad must in principle be recognised in Hungary if:

• The marriage was validly concluded under the law of the place of celebration (lex loci celebrationis) (PIL Act Section 33 – formal validity)
• The substantive requirements under the parties’ personal law (law of nationality) were fulfilled (PIL Act Section 32)
• Recognition does not conflict with Hungarian public policy

Same-Sex Marriage

Article L(1) of the Fundamental Law provides: “Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision.”

This provision results in the following legal situation:

Hungary does not recognise same-sex marriages contracted abroad as marriages. The position in legal practice and scholarship is as follows:

• Based on Article L of the Fundamental Law, the public policy clause (PIL Act Section 12) applies – the result of recognition would be manifestly incompatible with Hungarian public policy
• There is no automatic “institutional conversion” – Hungarian law does not automatically convert a foreign same-sex marriage into a registered partnership

Registered partnership (Act XXIX of 2009) is available in Hungary for same-sex couples, but it is an independent legal institution – a foreign same-sex marriage is not automatically “converted” into a registered partnership.

The question of EU free movement:

In Case C-673/16 Coman and Others (2018), the Court of Justice of the EU held that where an EU citizen has validly contracted a same-sex marriage in another Member State, the Member State of origin must recognise the “spouse” status for the purposes of exercising the right to free movement (Directive 2004/38/EC). However, this:

• Does not oblige Hungary to recognise the marriage with substantive family law effects
• Is relevant exclusively for the purposes of securing the right of residence
• Does not create a family law relationship (property, inheritance effects) under Hungarian law

This area remains a point of legal tension between EU law and national constitutional law.

Law Applicable to Divorce

Rome III Regulation (EU 1259/2010)

The Rome III Regulation (under enhanced cooperation, in which Hungary participates) determines the law applicable to divorce:

1. Choice of law – the parties may agree on the applicable law (Article 5) – options: (a) the law of habitual residence, (b) the law of last common habitual residence, (c) the law of nationality of either party, (d) the law of the forum
2. In the absence of choice (Article 8) – cascade of connecting factors: (a) law of common habitual residence → (b) law of last common habitual residence → (c) law of common nationality → (d) law of the forum

Application of Third-Country Law

Where Rome III designates the law of a third country as applicable, the Hungarian court applies it – but the public policy clause (Rome III Article 12, PIL Act Section 12) provides protection: if the applicable foreign law does not provide for divorce or does not ensure equal access to divorce regardless of gender, the court applies the law of the forum (Hungarian law).

Matrimonial Property Issues

Regulation (EU) 2016/1103

The Regulation on matrimonial property regimes (enhanced cooperation) determines:

• Jurisdiction in matrimonial property matters
• The applicable law – as a default, the law of the spouses’ first common habitual residence (Article 26(1)(a))
• The parties’ option to choose the applicable law (Article 22)
• Recognition and enforcement of decisions between Member States

Practical Advice

Before Marriage

1. Ascertain the formal requirements of the law of the place of celebration – the validity of the marriage is assessed under the lex loci celebrationis
2. Consider a choice of law – Regulation 2016/1103 permits choosing the law applicable to matrimonial property
3. Consular advice – the Hungarian consulate can provide information on the conditions for domestic civil registration

In Case of Divorce

1. Verify jurisdiction – under Brussels IIb, courts of multiple Member States may have jurisdiction; the place of filing determines jurisdiction (lis pendens)
2. Consider a choice of law – Rome III permits choosing the law applicable to divorce
3. Obtain the certificate – for an EU Member State divorce, request the certificate under Brussels IIb Article 36 from the court – this facilitates domestic recognition

Enforcing a Foreign Judgment Domestically

1. Authenticated translation – have the judgment translated at OFFI or an equivalent institution
2. Apostille – if the issuing country is a party to the Hague Convention; otherwise diplomatic legalisation
3. Civil registration – may be requested from the locally competent civil registrar
4. Legal assistance – in complex cases (third-country judgments, public policy issues, children involved), engaging an attorney experienced in private international law is advisable

The recognition of foreign marriages and divorces is one of the most complex areas of private international law, requiring the joint application of EU regulations, bilateral conventions, and national law. Proper application of the law requires knowledge of the hierarchy of legal sources and careful examination of the specific circumstances of each case.