Key changes to the Code of Civil Procedure – family law litigation

What is considered a family law case?

In addition to the general rules, the Code of Civil Procedure defines special types of litigation to which separate rules apply. Among these, under the heading of „actions related to personal status” it refers to custodianship, matrimonial action (which are the following: action brought for the annulment of marriage, for the establishment of the validity, existence, or non-existence of a marriage, or an action brought for the dissolution of marriage), action for the establishment of parentage (which means an action brought for the establishment of paternity, an action brought for rebutting the presumption of paternity or an action brought for the establishment of motherhood), action related to the termination of adoption and action related to parental custody.

With the amendment of the Code of Civil Procedure, the „contact action” was added as a seperate category. The term covers actions to regulate contact with children, to change contact and to restrict or withdraw contact rights. In this context, it is also worth taking into account the change in the Civil Code, also effective from 1 January 2021, which states that if the rules of contact have been established by the court, the court may also be requested to change them. Previously, this was only the case for two years after the court decision, and the guardianship authority had the power to establish contact for other purposes.

Therefore, these amendments are aimed at extending the jurisdiction of the court to matters relating to contacts. However, the amendment to the Code of Civil Procedure does not change the fact that an action for the restriction or withdrawal of rights of contact cannot be brought separately, but only in a matrimonial or parental custody action. If no such proceedings are pending, it is for the guardianship authority to regulate contact and to withdraw or restrict the right of contact.


Flexible rules

One of the most important aspects of the reforms was to make the procedural rules more flexible and to ensure easier enforcement. This is not a new idea, as the judiciary and the legal profession have already pointed out that the general rules of the Code of Civil Procedure are too restrictive in family law cases, which are more straightforward, and hinder the speedy conclusion of cases.

This is remedied by the provision that, in the case of actions related to personal status, the date of the hearing is set immediately after receipt of the statment of claim – as a general rule, this would only happen after the defendant's counterclaim has been received. This can mean an acceleration of 1-1.5 months in cases.

A jogi képviselő nélkül eljáró alperesek számára jelent könnyítést, hogy ellenkérelmüket - amit az általános szabályok szerint írásban kell előterjeszteni, meghatározott formai követelmények szerint - ezentúl szóban is előterjeszthetik a perfelvételi tárgyaláson.

For defendants acting without legal representation, it is now easier for them to present their counterclaim orally at the hearing, which under the general rules must be in writing and in accordance with certain formal requirements.

Flexibility is also provided by provisions facilitating the "interoperability" of the two phases of civil proceedings. The first is the preliminary stage, which is used to set the framework for the dispute, followed by the main hearing stage, during which the court conducts the necessary evidence and finally makes a decision. The aim is to make procedures more flexible by allowing for the taking of evidence in advance and the possibility to take evidence at the main hearing stage or even before the main hearing starts. It is also a facilitation that the plaintiff's claim and the defendant's counterclaim can be changed during the main hearing stage without the court's permission. Furthermore, the new provisions specifically mention the cases in which provisional measures may be granted ex officio.


Protecting the best interests of children

Another important objective of the amendment is to ensure the protection and rights of children in family law litigation.

An important means of achieving this objective is that the legislator excludes the use of a private expert in actions related to personal statusAccording to the reasoning of the amendment, it is important to exclude this form of evidence because if the party giving evidence in these proceedings requests party-appointed expert evidence, the opposing party is also entitled to request party-appointed expert evidence, and if there is a professional conflict between the two party-appointed expert opinions, the court will use an officially appointed expert to resolve it. As a consequence, the minor child involved in a lawsuit may be examined by three experts, which is clearly contrary to the principle of enhanced protection of the best interests and rights of the child.

In addition, the law explicitly obliges the courts to pay special attention to the need to notify the child protection services without delay if the child's situation requires it. In proceedings for the settlement of parental custody, the law allows the court to order evidence of its own motion instead of the evidence proposed, if it finds that the evidence proposed by the party does not serve the interests of the minor child or is contrary to them, for example, often to discredit the opposing parent.

The present amendments not only allow the court to order the taking of evidence of its own motion, but also allow the court to decide of its own motion on relevant issues which have not been requested by the parties but which, in the interests of the minor child, require it.


Certain amendments to the rules on matrimonial proceedings

The amendment also introduced various changes to certain types of family law litigation, among which we will review the changes relating to matrimonial proceedings.

A new element has been added to the statement of claim in matrimonial proceedings: it must now include the starting and ending dates of the duration of the marital partnership, which is mainly of benefit to the court, which must determine the duration of the marital partnership in the judgment. It should be noted that this has been required by judicial practice up to now.

In addition, in order to unify jurisprudence, the law also provides that if the plaintiff seeks a divorce by mutual consent, but the parties have not yet reached an agreement on ancillary issues (parental custody and access, use of the matrimonial home, child maintenance and spousal maintenance), the plaintiff is also required to make a declaration in respect of these ancillary issues. The explanatory memorandum to the amendment stresses that this statement by the plaintiff does not constitute a statement of claim, the purpose of the amendment is to facilitate the presentation of the defendant's position on certain ancillary issues in the light of the plaintiff's position, which serves to the concentration of proceedings and may also facilitate the effectiveness of the hearing and settlement.

If you have any questions about divorce or other family law matters, please do not hesitate to contact our office!

Key changes to the Code of Civil Procedure – family law litigation
2024-01-25, Family