2) The procedure and conditions for marriage;
3) Invalidity of marriage;
4) Termination of marriage.
1 question
The RF IC does not define marriage. Because Marriage is a complex institution; its legal definition would inevitably be incomplete, because could not cover all the essential features of marriage that lie outside the scope of law. “Brachiti” (Slavic) - select the good, reject the bad.
Marriage is a monogamous, voluntary and equal union of a man and a woman, concluded in compliance with the procedure established by law, aimed at creating a family, generating mutual personal and property rights and obligations between spouses. Marriage features:
v It is always equality. Marriage is concluded on a parity basis;
v Marriage...
voluntary;
v Monogamy (1 man + 1 woman);
v The purpose of the union is to create a family;
v Union concluded in compliance with the established procedure (registry office).
3 concepts that explain the legal nature of marriage:
® Contract Theory. Developed in Ancient Rome, the essence of the theory: all main forms of marriage bore the signs of a simple civil transaction. Only the property sphere of marriage relations was subject to legal regulation; the moral and spiritual aspects of marriage were not included in the subject of regulation;
® Theory of sacrament. The Roman system was replaced by the church. With the development of society, family values began to be regulated by church norms and marriage was given the character of a mystical sacrament “marriages are made in heaven.” The ethical and physical elements of marriage came under regulation;
® An institute of a special kind. In place of the religious concept, and sometimes along with it, ethical ideas about marriage came and the concept of marriage began to be derived from the correspondence of the marriage union to the moral nature of man. At the same time, marriage is not considered either as a sacrament or as a contract, but as an institution of a special kind. G.F. Shershenevich, Zagorovsky, Ioffe.
Question 2
According to Art. 10 of the RF IC, indeed, only marriages concluded in the registry office are recognized on the territory of the Russian Federation. Only registered marriages are given legal significance. According to Russian legislation, neither the church form of marriage (marriage within a marriage) nor a marriage concluded according to local customs or national rites is given legal significance.
Currently, the RF IC provides for the possibility of recognizing the legal force of a church form of marriage if a marriage in this form was performed in the occupied territories of the USSR during the Second World War until the restoration of civil registry offices in these territories. Clause 7 art. 169 RF IC.
The establishment of the GR also means that actual marital relations, no matter how long they last, are not given legal force; therefore, they do not give rise to legal consequences. “Civil” marriage is a fallacy. France - legalization of marriages at the municipal level.
Property relations between de facto spouses are regulated by the rules on common shared property established by the rules of Chapter. 16 of the Civil Code of the Russian Federation.
FOR THE SEMINAR: marriage abroad.
THE IMPORTANCE OF STATE REGISTRATION OF MARRIAGE
§ Law-forming;
§ Protection of the rights and interests of spouses.
The state body is the Civil Registry Office. Document – marriage certificate in units. copy
The basis for the GR is a joint application of the persons entering into marriage. Registration is carried out by any civil registry office in the territory of the Russian Federation at the choice of persons entering into marriage (Article 25 of the Federal Law “On the Civil Registry Office”). Persons entering into marriage submit a joint application in writing, which confirms 2 facts: mutual voluntary consent / absence of circumstances preventing marriage. If one of the persons entering into marriage cannot appear to submit a joint application, then the expression of will of the persons entering into marriage may be formalized in separate statements, but the signature of the person who cannot appear must be notarized. Previously, joint presence was required when submitting an application. Marriage is concluded in person after one month from the date of filing the application. If there are valid reasons, the registry office may allow marriage to be concluded before the expiration of a month, or may extend the period but not more than 1 month. The reasons for the decrease can be varied, there is no list, but pregnancy, the birth of a child, conscription into the army, urgent departure on a business trip, and if they get married and are actually in a marital relationship, in a declarative manner “an actual relationship has developed.” As for increasing the period, there is no list. Maybe illness, a desire to better prepare for the wedding. The reasons may be before or after filing the application. The fact that the registration date has already been set is not a basis for refusing to reschedule.
There are special circumstances in which the registry office may register a marriage on the day the application is submitted. These are exceptional circumstances (there is no list): pregnancy, the birth of a child, if the life of one of the parties is in danger (departure on a complex dangerous business trip; departure to a combat area - it does not matter in what capacity you went; upcoming dangerous medical operation). Documentary evidence and decision taking into account specific circumstances. Submitting an application to the civil registry office does not have any legal consequences and does not in any way bind the persons who submitted the application, i.e. Anyone can refuse to register a marriage at any time. A month to think.
The personal presence of persons entering into marriage during registration is mandatory. If persons entering into marriage are unable to appear at the civil registry office due to illness or other valid reason, GR can be carried out at home, in a medical facility or other place in the presence of persons entering into marriage.
CONDITIONS OF MARRIAGE
This is the so-called "material" conditions, as distinguished from those relating to the form and procedure of marriage. Failure to comply with one of the material conditions of marriage entails its invalidity.
· Voluntary consent of persons entering into marriage;
· Marriage age. General rule: 18 years of age for marriage, may be reduced:
Up to 16 years of age, but by decision of the compulsory medical insurance (district administration) on the MF of persons entering into marriage if there are good reasons - any (pregnancy, birth of a child, existing de facto marital relations);
The possibility of marrying a person under 16 years of age (the issue is resolved by the laws of the constituent entities of the Russian Federation, which establish the conditions and procedure for marriage as an exception). An emancipated minor does not acquire marital capacity by virtue of the mere fact of emancipation. To register a marriage, he must obtain the appropriate permission on a general basis.
CIRCUMSTANCES PREVENTING MARRIAGE
Marriage is not permitted:
Þ Close relationship (non-rehabilitative basis). There is an exhaustive list of persons who are prohibited from marrying. Parents, children, grandfathers, grandmothers and grandchildren, full (common father and mother) and half-blood (either common mother or father) brothers and sisters. The ban is biological in nature. Half-siblings can marry because neither of them is related by blood. Cousins can (collateral relationship!);
Þ Marriage of an adoptive parent and an adopted child (the prohibition is of a moral and ethical nature). In order to enter into such a marriage, it is necessary to petition for the annulment of adoption;
Þ Marriage with a person declared incompetent by the court. This is a mentally seriously ill person, whose helpless state can be taken advantage of by an adventurous (inappropriate) marriage partner without the goal of creating a family;
Þ You cannot get married if at least one person is already in a registered marriage. Manifestation of the principle of monogamy - bigamy and bigamy are prohibited. However, in the republics (Chechnya, Ingushetia) this is allowed legally. Actual marital relations are not an obstacle to marriage.
The list of the above circumstances is exhaustive. Refusal to register a marriage for other reasons is not permitted, incl. and medical. The DP does not have the right to find out the circumstances, and even if there is information about the disease (AIDS, HIV), they do not have the right to refuse to register the marriage. Maintaining medical confidentiality.
CONFERENCE (MARRIAGE RELATIONS AND PROPERTY). RELATED FOREIGN LEGISLATION.
Question 3
The law does not contain the concept of “invalidity of marriage”, but only specifies the conditions, the violation of which entails invalidity. A marriage is declared invalid if the conditions of its conclusion are violated, as well as if a fictitious marriage is concluded.
GROUNDS FOR RECOGNIZING A MARRIAGE INVALID
Conventionally, all reasons can be divided into several groups:
I. Violations of the statutory conditions for marriage;
Ø In the absence of mutual voluntary consent to enter into marriage. This is a vice of the will, expressed in:
× Coercion – consent to marriage was formed under the influence of physical or mental violence or the threat of its use. Coercion can come both from the other person entering into the marriage, and from persons who may also act both in the interests of this person and in their own. Violence and threats can apply both to the person entering into marriage and to people close to him (the child);
× Misconception - the person entering into marriage has an erroneous belief about the circumstances that are significant for the marriage. However, the delusion should not concern the motives, but the identity of the other spouse, his physical identification (marriage to the wrong person). A misconception regarding the moral qualities of a person may be recognized as a significant misconception (practice: marriage with a convicted person; marriage with a prostitute); misconception regarding social status, property status, profession; misconceptions about health status (infectious diseases);
× Deception - deliberately misleading a person in order to enter into marriage. It is expressed in the reporting of false information, omission of facts of decisive importance (a person deliberately impersonates someone else). When assessing circumstances, only the subjective factor operates, i.e. how exactly these circumstances influenced a particular person;
× Marriage, although with a capable person, but at the time of marriage, due to his condition, was not aware of his actions and was not able to direct them. Causes: nervous shock; mental disorder or other illness (physical injury, alcohol or drug intoxication). Documents confirming the circumstances; witness testimony, examinations;
Ø Marriage entered into with a minor who was not given permission to lower the age of marriage. However, such a marriage cannot be declared invalid only if the interests of the minor require it and with his consent. If there is no consent of the minor, then such a marriage can be declared invalid only if there is a real threat to the health or interests of the minor (introduction to drugs, involvement in a criminal environment, forced prostitution).
II. Conclusion of a marriage in the presence of circumstances preventing its conclusion:
If there is a close relationship: people do not know that they are related. Such a marriage cannot be recognized as valid under any circumstances;
Marriage between an adoptive parent and an adopted child;
With an incompetent person who is recognized as such in court. If the person has recovered and a court decision has restored his legal capacity + they agree to continue the marital relationship, then such a marriage can be recognized as valid;
Entering into a second marriage without ending the previous one. The second (subsequent) one is considered invalid. A marriage can be recognized as valid if, by the time the case is considered in court, the previous marriage has been terminated (divorced, the spouse has died, the marriage has been declared invalid).
III. Concealment by one of those entering into marriage from the other of the presence of a sexually transmitted disease or HIV infection. But legal force is associated with the fact of concealment of the disease;
IV. A fictitious marriage is a marriage that was entered into without the intention of starting a family on the part of one or both spouses. When concluding such a marriage, spouses always pursue certain goals (obtaining the right to housing (registration at the place of residence), the right to Russian citizenship, rights to pensions, benefits, benefits, the right to property). However, the main sign of a fictitious marriage is not the motives, but the lack of intention to start a family. If the persons who entered into marriage pursued property or other benefits and at the same time they created a family, then such a marriage is not fictitious and cannot be recognized by it. Such a marriage is valid - “marriage for selfish motives”, “marriages of convenience”.
This list of grounds is exhaustive; a marriage is declared invalid only by a court decision; before that, the presumption of the validity of the marriage applies. The mere existence of grounds for declaring a marriage invalid does not automatically entail such recognition. Cases are considered in the form of claim proceedings; claims for recognition of marriage are not subject to limitation; they can be brought at any time during the existence of the marriage itself. Filing a claim after a divorce is generally not permitted. However, there are exceptions: marriages between relatives; entering into a marriage without ending the previous one.
CONSEQUENCES OF RECOGNIZING A MARRIAGE INVALID
Annulment of all legal consequences of marriage. This is the main meaning of the invalidity of marriage. The annulment of a marriage has a retroactive effect in time. A marriage is invalid from the moment of its conclusion. In a divorce, legal consequences for the future (where to place the children).
ü Personal legal relations cease from the moment of marriage (the right to a surname, the right to common citizenship, the right to registration);
ü Property relations: rules on common shared ownership (depending on contributions, whoever earns what takes it).
All legal consequences can be made dependent on the subjective characteristics of each spouse. We are talking about a conscientious spouse (did not know and could not know). Annulment of all legal consequences of a marriage would lead to a violation of the interests of a conscientious spouse. According to paragraph 1 of Art. 30 of the RF IC, the court has the right (may) to preserve the surname and recognize the right to alimony. It is possible to apply the norms of the RF IC to property acquired during such a marriage. But if it is to the benefit of a conscientious spouse. The court may recognize a marriage contract as valid in whole or in part. In addition, a conscientious spouse may demand compensation for moral and material damage. Recognition of a marriage as invalid does not affect the rights of children born in such a marriage. This may be overturned in court.
PERSONS HAVING THE RIGHT TO DEMAND ANNUALITY OF MARRIAGE
Art. 28 RF IC. All these persons are identified depending on the grounds for declaring the marriage invalid:
☻ Spouse whose rights have been violated;
☻ Legal representatives (parents, guardians, trustees, adoptive parents);
☻ Other persons whose rights have been violated (spouse from a previous marriage);
☻ Prosecutor.
CIRCUMSTANCES ELIMINATING THE INVALIDITY OF MARRIAGE
By the time the case is considered in court, the circumstances that lead to the invalidity of the marriage may cease to exist. In this case, the marriage can be recognized as valid, i.e. it can be sanitized (made healthy). However, the disappearance of the conditions does not in itself entail the reorganization of the marriage, but only gives the court the right to recognize the marriage as valid. The court ascertains the presence of legal obstacles (another undissolved marriage), which serve as the basis for declaring the marriage invalid. The court concludes that the marriage is invalid.
Then the court reveals the presence of legal restitution legal cases (divorce, death of a spouse from a previous marriage). After this, the court may recognize the marriage as valid, but from the moment when the circumstances cease to exist. Even if these circumstances cease to exist in the interests of a conscientious spouse, the court may declare the marriage invalid.
Question 4
TERMINATION OF MARRIAGE (VOLUNTARY)
This is a legal entity, with the onset of which the law associates the termination of marital relations. Art. 16 of the RF IC establishes a list of grounds for termination of marriage, which can be conditionally divided into 2 groups:
v Grounds associated with natural causes without volitional character:
Ø Death of a spouse;
Ø Declaration of the spouse as deceased.
Termination of marriage on these grounds does not require a special procedure. It is enough to present to the registry office a document certifying the death of the spouse or a court decision declaring the spouse dead. Registration of this act gives the spouse the right to enter into a new marriage. Restoration of such a marriage is possible if the spouse returns or his place of residence is discovered; a court decision was made that overturned the previous decision; there must be a joint application to restore the marriage. This is possible if either of these spouses is not married. Such a marriage is not automatically restored.
v Grounds related to the volitional criterion:
· Divorce at the request of one of the spouses or at the request of the guardian of the spouse recognized by the court as incompetent. In accordance with the RF IC, divorce can be carried out in the civil registry office or in court. Moreover, the law does not provide spouses with the opportunity to choose the procedure for divorce. The actual termination of marital relations without proper registration of a divorce (they do not maintain a joint household) does not entail the termination of the marriage, even if the parties have not lived together for a long time.
Civil registry office: if there is mutual consent of both spouses and they do not have common minor children, including adopted ones. Consent is expressed in writing by submitting a joint or 2 separate applications (a person who cannot appear at the registry office to submit an application submits an independent application, but the signature on which is notarized). If before the divorce is filed one of the spouses changes his mind, then divorce is possible only through the court. The civil registry office carries out a divorce at the request of one spouse (regardless of whether the spouses have common minor children): if the other spouse is declared missing / declared incompetent by the court / sentenced to prison for a term of more than 3 years. Divorce and the issuance of a certificate are carried out after 1 month from filing the application. Regardless of the divorce, the spouses may still have unresolved issues in the registry office. In this case, according to Art. 20 IC RF, disputes about the division of joint property; on the payment of funds for the maintenance of a disabled, needy spouse; Disputes about children (spouse is convicted or incompetent) are resolved in court.
Share with FRIENDS:Introduction
Theoretical part
Marriage as a social phenomenon
Marriage as a legal institution
Practical part
Conclusion
Bibliography
Introduction
The first form of family relations appeared in the era of savagery and was a group marriage, in which marital relations were established between a certain group of men and women. However, sexual community at the early stage of primitiveness gradually dies out, as various restrictions and prohibitions arise on its way. For example, an age ban and a ban on incest. The circle of persons covered by marriage, due to prohibitions, is gradually narrowing to a couple family, which has become the main model of marriage relations in Europe and America. Without exaggeration, the institution of marriage can be called key in the science of family law. Marriage is closely related to the concept of family and is its basis. In Art. 1 of the Family Code of the Russian Federation (hereinafter referred to as the Family Code of the Russian Federation) declares that the family is under the protection of the state, and that the regulation of family relations is carried out in accordance with the principles of voluntariness of a marriage between a man and a woman and equality of rights of spouses in the family. Of course, at all times, the institution of marriage has received special attention not only from the state, but also from society. The legal and social nature of this institution is of interest to researchers today.
The object of this study was the institution of marriage in Russian family law. The subject of the research is the norms of Russian family legislation, scientific and educational literature on the topic under study. The purpose of the work is to analyze the institution of marriage in Russian family law. To achieve this goal, the following tasks are formulated:
analysis of marriage as a social phenomenon
study of marriage as a legal institution.
Practical part
. Marriage as a social phenomenon
Marriage is first and foremost a product of society and is a social phenomenon. Basically and in the most general form, marriage should be understood as a historically determined union between male and female persons, through which relations between the sexes are regulated and the position of the child in society is determined.
M.V. Krotov emphasizes that, as a rule, a monogamous or polygamous model of marriage is chosen by one state or another on the basis of historical traditions, religious and other ideas prevailing in society.
A.I. Zagorovsky identified the following elements that make up marriage as a multilateral institution. Marriage (among a cultural people) contains the following elements: firstly, a natural (physical) element, a sexual one - the physiological attraction of individuals of different sexes to each other, invested by nature in a person along with other animals; secondly, the moral (ethical) element, which consists in the mutual moral attachment of the spouses, in the communication of their inner, spiritual world; thirdly, economic, generating an economic connection, due to which a common household of husband and wife arises; fourthly, the legal element, by virtue of which marriage is the source of a certain legal status of persons mutually related by marriage, and gives rise to mutual rights and obligations for them, and fifthly, the religious one, which subordinates marriage to the rules of religion: no religion is indifferent to marriage, and especially Christian.
In a religious sense, marriage is a mystical union, a sacrament, or, as A.I. wrote. Zagorovsky, the most complete communication between a man and a woman.
Marriage is a way of regulating sexual relations in society from promiscuity to an egalitarian union. It is believed that "the survival of humans as a species and evolutionary progress were made possible only by a unique combination of sexual and reproductive behavior." Undoubtedly, the most important factor in the socialization of people is precisely the regulation of relations between the sexes. The formation of human society presupposed the curbing of the basic animal instinct - sexual, the establishment of special forms of relations between a man and a woman, which include marriage and family. The social characteristics of human life were derived from the unlimited instinct of reproduction. In all historical eras, marriage has had a universal character, since there is something more in human marriage, rooted in the deepest essence of human nature and society, combining the economic and sexual (reproductive) together. Throughout human history, marriage has been a social foundation that gives rise to relationships not only of marriage, but also of parenthood.
Marriage is a unique form of satisfying a person’s need for children (in its continuation), and for humanity as a whole it is the main way of simple reproduction of the population. The demographic function is the main and specific function of marriage as a social organism. V.V. Yarkov pointed out that marriage is the basis of the family, the purpose of which is primarily to raise children and care for their future, which cannot but affect the interests of modern society. That is why the conditions for marriage and the grounds for its dissolution cannot be considered a private matter of the spouses themselves. When they get married, they take on certain responsibilities, the main one of which is raising children. This is the public interest in the name of which the state reserves the right to intervene in this area of human life.
. Marriage as a legal institution
As is known, Russian legislation does not define marriage, which, notes L.M. Pchelintsev, is quite natural, since a negative approach to the normative consolidation of the concept of marriage was characteristic for a long time of the previously existing family legislation of Russia, including the three previous marriage and family codes of the post-revolutionary period.
Returning to modern family law, we can state that the physical element of marriage and, accordingly, the presence of joint children or the opportunity to have joint children are not mandatory.
One way or another, the state has taken upon itself the obligation to protect marriage and, one might say, the obligation (and at the same time the right) to legitimize marriage through its state registration, so, according to paragraph 2 of Art. 1 of the RF IC recognizes marriages concluded only in the civil registry office (hereinafter referred to as the Civil Registry Office). Without state legitimation of marriage between a man and a woman, neither the legal status of spouses, nor the regime of common joint ownership of property, nor any other legal consequences arise. Even a marriage concluded in a church is not legally significant, since according to the Constitution of the Russian Federation, Russia is a secular state. But what should be understood by marriage in the legal sense? The definition of marriage as a union of a man and a woman, registered with the civil registry office in compliance with the established conditions, is obviously not enough, if only because when resolving the issue of the fictitiousness of the marriage, the court cannot proceed from the fact that since the marriage was registered in compliance with the conditions provided for by law, it means , it is valid.
G.F. Shershenevich noted that the definition of marriage in the legal sense as a union of a man and a woman for the purpose of cohabitation, based on mutual agreement and concluded in the prescribed form, generally contains the entire set of conditions under which the cohabitation of persons of different sexes acquires a legal character, that is, it entails all the consequences of a legal marriage. However, the modern RF IC does not contain any indication of cohabitation as a mandatory element of marriage.
Thus, considering various concepts of marriage, we will find certain shortcomings in them, and none can be ideal. The reason lies in the fact that family and marriage, in addition to being social phenomena, are also purely individual. In family and marriage there are spiritual and natural principles that cannot be regulated by the law of a secular state. As M.V. writes Antokolskaya, in a modern pluralistic society it is impossible to impose common ideas about marriage on all its members. Therefore, the law, based on moral norms, should cover only that area of marriage relations that, firstly, is amenable to legal regulation, and secondly, needs it.
There is no single concept of marriage either in scientific works or in family law. The state can only say through denial that it is not a marriage, while the legislator and the court are guided by such principles as monogamy of the union of a man and a woman, freedom of marriage, equality of spouses, and fulfillment in the manner and form established by law.
The understanding of marriage as an institution of a special kind arose from the division of marriage and the legal relationship arising from it, which has a different legal nature than the legal fact that gave rise to it. O.A. Krasavchikov noted that the legal state of marriage and other similar states “should be treated as nothing more than legal relations, the characteristic feature of which (unlike most civil obligations) is relative stability. It is no coincidence, for example, in the literature of family law, the state of a person “in marriage, until now, has been and is now considered as a marital relationship that arises due to legal facts.” In this case, a legal fact should be understood as registration of marriage. The registration itself by the civil registry office is an administrative act, the legitimation of relations, which gives rise to the emergence of legal relations between spouses. Such legal relations represent a special kind of institution, which includes property, inheritance and even non-property relations. Indeed, marriage legal relations are not reducible to any single civil legal institution; they can combine elements of many civil relations, such as relations of representation, property, alimony, etc. We should not forget that the marriage legal relationship, as a relationship regulated by the rules of law, does not include many spiritual aspects that take place in the lives of the spouses. This is typical not only for marriage legal relations.
The theory of marriage as a contract, according to some modern authors, for example M.V. Antokolskaya, dates back to the law of Ancient Rome, where all the main forms of marriage bore the signs of a civil transaction. Canon law sees marriage as both a sacrament and a contract, while modern civil law sees it as a complex legal transaction. Roman law viewed marriage as a factual state of affairs (res facti), although it entailed the most important legal consequences. Roman marriage, by its very essence, leaves the solemn act unattended. It arises and exists insofar as two fundamental elements are actually present: cohabitation (an objective requirement) and conjugal love, maritalis affectio (a subjective requirement), therefore, in the absence of one of these elements, the marriage ends.
From the above it is clear that the signs of a civil transaction were not inherent in all forms of Roman marriage, as M.V. claims. Antokolskaya. Although some of them may have had such signs at some point.
In Russian pre-revolutionary science, there was an interesting theory of peasant marriage, the so-called artel theory, according to which it was believed that consanguinity in a family does not constitute its basis, but is a random element, the position of the head of a peasant family is nothing more than the position of the manager of the common economy, or rather - artel leader. Moreover, all family property belongs not to the head of the family personally, but to all family members together as shareholders of common joint property, and the rights of such shareholders are based not on blood relationship, but on the personal labor of each and, moreover, in the amount of actual participation. This view forces us to consider family and marriage as something like a contract, a property transaction. This position was held by many Russian scientists, for example Orshansky, Efimenko, Matveev.
The essence of marriage as a property transaction was explained by the fact that marriage involves the transfer of a certain value from the hands of the bride’s parents to the hands of the groom, while value was understood as the woman’s labor force. Thus, marriage is a purchase and sale agreement for the acquisition of labor and other property as means of the family economy.
Later, the theory of marriage arose as a contract between the spouses themselves, and not between the groom and the bride’s parents. However, quite a large number of scientists have criticized and continue to criticize this contractual theory of marriage. In support of their objections, the argument is often given that a contract cannot give rise to a marriage legal relationship, since a contract is always something temporary, relating to property, and marriage covers the entire human life and ends with the death of the spouses or the loss of mutual love and respect. However, here we should agree with M.V. Antokolskaya, who correctly notes that the disadvantage of such arguments is the transfer of ethical ideas about marriage to the field of law. “Law,” writes M.V. Antokolskaya, “certainly must be built in accordance with the ethical ideas of its era. But law cannot include ethical norms.”
And yet, the statement that the law regulates property relations between spouses does not yet give reason to say that marriage is a civil contract. Externally, marriage falls under Art. 420 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation) that a contract is an agreement of two or more persons to establish, change or terminate civil rights and obligations. Of course, a man and a woman who enter into a marriage establish, change and terminate some civil rights for themselves. However, upon entering into marriage, future spouses do not stipulate the rights and obligations that should arise by virtue of such an agreement, i.e. do not establish the content of the contract, and yet such rights and obligations still arise, but arise automatically by force of law. At the same time, it is extremely doubtful to say that the spouses, entering into marriage, had in advance the goal of acquiring all the provided rights and obligations and on this basis building a contractual theory of marriage. If we follow this concept, then the statement of paternity of a man who is not the husband of the child’s mother is a civil contract between the father and the child (represented by the child’s mother, who gives consent to such an entry, which follows from the obligation to sign a paternity statement jointly with the mother - Article 51 of the RF IC), according to which the father undertakes to support and raise the child, and the child, upon reaching adulthood, undertakes to support the disabled father. But it is obvious that such a statement cannot be considered an agreement, but is only a legal fact that gives rise to corresponding legal relations. Otherwise, we will have to interpret a significant number of actions as civil contracts or unilateral transactions.
In addition, the following justification can be given to deny the concept of marriage as a contract. Neither maintaining a common household nor having children is a mandatory element of marriage. In this case, what can be called the subject of such an agreement? It is obvious that this agreement does not have a subject matter, which excludes the very possibility of its existence.
So, considering the above, it must be concluded that marriage is not a contract. At the same time, the registration of marriage itself is an administrative act, and the emerging marriage legal relationship is an institution in which there are elements of many civil legal institutions.
marriage property civil legal contract
Practical part
After the divorce of the Saprykin couple, the ex-husband became seriously ill and, being bedridden, was in the care of his mother. The ex-wife decided to remarry and brought their child Alyosha to his father to be raised, saying that his son reminded her of her ex-husband, whom she hated. Despite the objections of Saprykin and his elderly mother about the possibility of raising a child, the ex-wife threatened that if they returned Alyosha, she would throw him out onto the street. Having left his son with him, Saprykin was unable to pay him due attention. The boy began to make his way and wander around. Is it possible in this case to raise the question of depriving Saprykin of parental rights?
Art. 69 provides an exhaustive list of grounds for deprivation of parental rights, namely parents (one of them) may be deprived of parental rights if they:
evade the fulfillment of parental responsibilities, including malicious evasion of child support payments;
refuse, without good reason, to take their child from a maternity hospital (ward) or from another medical institution, educational institution, social welfare institution or similar organizations;
abuse their parental rights;
children are cruelly treated, including physical or mental violence against them, and attacks on their sexual integrity;
are patients with chronic alcoholism or drug addiction;
committed an intentional crime against the life or health of their children or against the life or health of their spouse.
In the case we are considering, Saprykin cannot pay due attention and properly exercise his parental rights not because of reluctance, but because of the impossibility of this due to his illness, which was known to his ex-wife. Therefore, there are no grounds for depriving him of parental rights.
Conclusion
To summarize the above, it should be noted that in Russian family legislation there is no legal definition of marriage, and therefore, in theory, different approaches to understanding this institution arise.
Of course, marriage is not just a biological and social union of a man and a woman, performing reproductive functions in society, but a much more complex organism, under the “tutelage” of the state and law. It is the law that, through its influence, transforms the relationship between a man and a woman into a legal relationship, giving them a special status with the consolidation of special rights and responsibilities.
A compilation of all legal definitions can become the following legal definition of marriage, which should be enshrined in Art. 12 of the RF IC: “Marriage is a voluntary union of a man and a woman who have reached marriageable age, registered with the civil registry office in the absence of circumstances preventing the marriage, giving rise to legal relations of matrimony, both personal and property, concluded for the purpose of creating a family.”
It is possible that the legislative fixation of this legal category will contribute to the socio-legal strength of this institution.
Bibliography
1.Constitution of the Russian Federation. // Collection of legislation of the Russian Federation. 2009. N 4. Art. 445 .Family Code of the Russian Federation dated 12/29/95 N 223-FZ (as amended on 12/23/2010) // SZ RF. 1996. N 1. Art. 16 .Antokolskaya M.V. Family law. - 3rd ed., revised. add. - M.: Norma: Infra-M, 2010. .Civil proceedings: features of consideration of certain categories of cases: Educational and practical work. allowance / Answer. ed. V.V. Yarkov. - M., 2001. 5.Zagorovsky A.I. Family law course. - M.: Mirror, 2003. .Krasavchikov O.A. Legal facts in Soviet civil law. - M., 1958. .Krotov M.V. The concept and signs of marriage / Civil law. Textbook / Under. ed. A.P. Sergeeva, Yu.K. Tolstoy. - T. 3. - M.: Prospekt, 2004. .Pchelintseva L.M. Family law of Russia. - M.: Norma, 2002. .Sanfilippo Cesare. Roman private law course. - M.: Publishing house "BEK", 2002.
The basis for the legal regulation of the institution of marriage in modern Russia is the Family Code of the Russian Federation, adopted by the State Duma of the Russian Federation on December 8, 1995 and put into effect on March 1, 1996.
The family law has a special chapter 3 (Articles 10-15) Conditions and procedure for marriage. Along with the RF IC, the norms of the Civil Code of the Russian Federation are applicable to these legal relations.
The rules for applying civil law to family relations are defined in Art. 4 of the RF IC, according to which civil legislation applies if:
- - family relations are not regulated by family law or agreement of the parties;
- - the application of civil law norms does not contradict the essence of family relations.
The current Family Code of the Russian Federation does not contain a definition of marriage. It is given in the theory of family law.
The concept of marriage in domestic jurisprudence has long had a legal basis. The tradition of connecting a marriage with the observance of a certain procedure for its registration, characteristic of Russian law, is associated with the history of its development.
Initially, Russian jurisprudence is characterized by traditional approaches to understanding marriage for Eastern Christian states, where marriage is clearly interpreted as a union of a man and a woman formalized in the established order, the unity of the special social content of this union and its canonical form, the need for compliance with which is prescribed by the state. It is enough to mention the well-known definition of marriage by Professor G.F. Shershenevich. He wrote: “From a legal point of view, marriage is a union of a man and a woman for the purpose of cohabitation, based on mutual agreement and concluded in the prescribed form.”
The adoption of the new Family Code of the Russian Federation, in principle, did not change, and fundamentally could not change, traditional views on marriage as a phenomenon, unified in its social essence and legal form - “a union of a man and a woman, entailing legal consequences.”
However, the lack of a legal definition of marriage, despite the seemingly unambiguousness of its interpretation, sometimes gives rise to problems in practice. In this connection, some researchers propose to supplement Art. 1 RF IC definition of marriage. “Editorially, it could look like this: “Marriage is the union of a man and a woman, aimed at creating a family and formalized in the prescribed manner,” and further -- “Marriage is concluded in the civil registry office. The rights and obligations of spouses arise from the date of state registration of marriage."
Currently, only registered marriages are recognized. However, the number of unregistered (civil) marriages is currently increasing significantly.
According to the latest census, more than six and a half million Russian citizens live in civil marriages. That is, every tenth union is an unregistered union. Moreover, among those who are not yet thirty, this is no longer every tenth, but every sixth union.
There was a period in the history of Russian family law when actual marital relations gave rise to legal consequences similar to the consequences of a legal marriage. This was required by the situation that developed in society after the revolution.
Now the legislation operates with the concept of “actual marital relations” and this marriage does not give rise to legal consequences.
Vertical social mobility.
Types of knowledge.
Power.
The impact of international trade on the national economy
The influence of political consciousness on political behavior.
The impact of the economy on the social structure of society
Conscription, alternative civilian service
Elections as a form of political participation (fipi)
Globalization of modern society (fipi).
Global problems.
State power in the Russian Federation.
State budget.
The state in a market economy.
The state of its forms and functions.
Civil relations.
Civil process.
Civil society and the state
Citizenship of the Russian Federation.
Democracy.
Democratic decision-making mechanism.
Money and problems of monetary circulation.
The activities of the company in a competitive environment.
Human activity.
Activity and thinking.
Population income and social policy (fipi).
Spiritual activity
Spiritual culture as a sphere of social life
The spiritual world of man
Spiritual production
Spiritual values as a component of the spiritual culture of society
The law of supply and the activities of firms.
Legislation of the Russian Federation on elections
Legislative process
Employment and employment
Wages and labor incentives.
Election campaign in the Russian Federation.
Electoral system of the Russian Federation.
Changing interaction between man and nature in the process
Social development
Property and personal non-property rights (legal relations)
Individual and social personality characteristics
Inflation.
Art.
True.
How the market matches supply and demand.
Competition and its functions in a market economy.
Constitutional principles of national policy in the Russian Federation.
Constitution of the Russian Federation
Culture in the modern world
Personality.
Small social group and its role in society.
International law
(protection of human rights in peacetime and wartime)
Interethnic relations, ethnosocial conflicts.
World trade (fipi).
World economy
Worldview, its types and forms
World religions.
61. Multivariance and driving forces of social development
The variety of ways to understand the world.
Multi-party system and party systems.
Youth culture in modern Russia.
Youth as a social group.
Morality as a regulator of social relations
(Morality in the system of social norms).
Thinking and activity
Taxes in the Russian Federation.
Science in the life of modern society
Science. Main features of scientific thinking.
Natural and social sciences and humanities.
Scientific knowledge.
Nations and interethnic relations in the modern world
National policy of the Russian Federation at the present stage.
Income inequality and its consequences.
Education as a social value.
Communication as a form of interpersonal relationships
Objects of microeconomics.
Social progress.
79. Society and its structure (society as a system)
Organizational and legal forms and legal regime
Entrepreneurial activity
Organization of power in a democratic state.
Organization of international trade.
State authorities of the Russian Federation.
84. Public authorities in a democracy(fipi).
Basic institutions of society
Main sources of business financing
Basic rules and principles of civil procedure.
Fundamentals of the constitutional system of Russia.
Fundamentals of the national policy of the Russian Federation at the present stage.
Features of administrative jurisdiction
Features of scientific thinking.
Features of the legal status of minors.
Features of the criminal process
Deviant behavior and its types.
Cognition (cognitive activity)
Political power as a special type of social relations
The political system and its role in society (fipi).
Political elite
Political institutions.
Political organizations.
Political parties and movements
Political rights and freedoms of citizens.
Political process
Political regimes
Political leadership.
Political consciousness.
Political participation
The concept of truth and its criteria
Fixed and variable costs.
Human needs and interests.
The procedure for concluding and dissolving a marriage.
The procedure for hiring, the procedure for concluding and
Termination of an employment contract
The main element of family law is marriage. The Family Code of the Russian Federation does not contain a definition of marriage. It follows from the general theory of family law. The list of legal requirements that must be met when concluding a marriage, and the consequences of registering a marriage, allows us to define marriage as follows:
Marriage is a voluntary and equal union of a man and a woman, concluded in compliance with the procedure established by law and giving rise to mutual personal and property rights and obligations between the spouses.
State registration of marriage means that according to Russian legislation, neither a wedding ceremony in a church, nor a marriage concluded according to local or national rituals, is a marriage from a legal point of view and does not give rise to legal consequences. Registration of a marriage in a church is a personal matter for those entering into marriage and can take place both before and at any time after the registration of the marriage, but not instead. However, in all cases, a marriage is legally considered to exist only after its official registration with the registry office. It is from the date of state registration of the marriage that the spouses have a whole complex of mutual rights and obligations, and a child born after the state registration of the marriage is considered born in marriage with all the ensuing consequences.
According to Art. 10 of the RF IC, marriage is concluded in the civil registration authorities, which gives rise to the rights and obligations of spouses who have entered into marital relations. The law regulates the conditions and procedure for marriage.
Conditions for marriage:
– the presence of mutual voluntary desire of a man and a woman;
– they reach marriageable age.
Circumstances preventing marriage. Marriage between:
Persons of whom at least one person is already in another registered marriage;
Close relatives (relatives in a direct ascending and descending line (parents and children, grandparents and grandchildren), full and half (having a common father or mother) brothers and sisters);
Adoptive parents and adopted children;
Persons, at least one of whom has been declared incompetent by the court;
Persons of the same sex.
Marriage procedure:
A marriage is registered by submitting an application to the registry office at least a month before registration. In special cases (pregnancy, birth of a child, immediate threat to the life of one of the parties), marriage can be concluded on the day the application is submitted;
Refusal to register a marriage can be appealed in court. According to the law, a marriage can be dissolved at the request of one or both spouses, as well as at the request of the spouse’s guardian who has been declared incompetent.
End of marriage carried out as a result of the following legal facts:
- recognition of marriage as invalid;
- divorce;
- death of one of the spouses or declaration of one of the spouses as deceased.
Let us consider these circumstances in more detail.
1. Recognition of marriage as invalid. It is carried out only in court on the following grounds:
At least one of the conditions for marriage is missing;
There is at least one circumstance that prevents marriage;
Entering into a fictitious marriage (without the intention of starting a family);
If one of the persons who entered into marriage hid the presence of a sexually transmitted disease or HIV infection from the other person.
Consequences of declaring a marriage invalid depend on whether the spouse is conscientious or not. Conscientious a spouse who did not know and could not know about the presence of obstacles to marriage is recognized. Unscrupulous the spouse knew about the presence of obstacles to marriage.
In case of dishonesty of both spouses (fictitious marriage), the marriage does not give rise to family legal consequences; it is invalid from the moment of its registration (unlike divorce). A conscientious spouse emerges from an invalid marriage with a full set of rights - if desired, he can keep his surname if he took it during registration (personal non-property right), property rights (property in relation to him is divided in accordance with the rules on common joint property, he can collect alimony, there is a short story - can recover damages caused by marriage and moral damage - severe physical or moral suffering). An unscrupulous spouse does not receive any rights provided for by the Insurance Code. He is deprived of his surname if he received it in marriage, property acquired during marriage is divided in accordance with the norms of the Civil Code on common shared property, and he is deprived of the right to alimony, even if he is disabled and in need.
Consequences of invalid marriage for a child. A child born in a marriage declared invalid has the same rights as a child born in a valid marriage. There is no need to establish paternity to collect alimony or inheritance - he becomes an heir automatically.
2. Divorce. Divorce.
The freedom to marry also allows for the freedom to divorce. Divorce is both a legal and social phenomenon (the collapse of the institution of marriage).
The Law does not contain a formal list of circumstances that may serve as grounds for divorce. Our legislation does not list the reasons for divorce, since our state traditionally treats divorce as a statement of family breakdown, and not as a punishment for bad behavior.
The RF IC limits the freedom of divorce in the following case: the husband does not have the right to initiate divorce proceedings without the wife’s consent during the wife’s pregnancy and within one year from the birth of the child.
As a general rule, divorce is carried out by the authorities registry office except in cases of divorce judicial procedure.
1. Divorce in the registry office implies two procedures:
1.1 O normal order- divorce upon application of both spouses in the presence of the following circumstances:
Mutual consent to divorce;
The spouses do not have minor children.
1.2 U forgiven order- at the request of one of the spouses, only in the presence of the following circumstances:
Recognition of the other spouse as missing (Article 42 of the Civil Code);
Recognition of the other spouse as incompetent;
If the other spouse is serving a prison term of more than three years.
2. Marriages of spouses are dissolved in court:
Having minor children;
If one does not agree to divorce;
Disputing among themselves over the division of jointly acquired property.
A divorce is subject to state registration on the basis of an extract from the court decision, which the court sends to the registry office within three days from the date the court decision enters into legal force.
3. Death of a spouse.
The death of any spouse (declared dead under Article 45 of the Civil Code) is grounds for termination of the marriage.
From the moment of marriage registration, spouses have equal rights and responsibilities as property, so non-property character. Moral rights and obligations of spouses boil down to the following:
1. Personal rights of spouses:
– free choice of occupation, profession, place of stay and place of residence;
– free choice of surname – premarital husband or wife, or double;
– change of surname without divorce.
2. Personal responsibilities of spouses:
– build your family relationships on the basis of mutual respect and mutual assistance;
– promote the well-being and strengthening of the family;
– take care of the well-being and development of their children.
Property rights and obligations between spouses include o matrimonial property relations, and are regulated or sanctioned by the Family Code of the Russian Federation, which establishes two matrimonial property regime:
1. Legal(provided for by the RF IC);
2. Negotiable.
Let's consider legal regime matrimonial property, which includes the basic concepts:
1. Composition and regime of property of each spouse.
The indivisible property of each spouse includes:
1.1. Everything that each of them acquired before registering the marriage, i.e. It is necessary to preserve the documents of acquisition, otherwise it will be impossible to prove in court that this is separate property.
1.2 Everything that everyone received during the marriage as a gift, by inheritance or through other gratuitous transactions must be a certificate of inheritance; it is much more difficult to confirm that the property was donated. If the gift is given to both, this is common joint property, if separately, then the separate property of each (for example, wedding gifts) is a simple written form of a gift agreement.
1.3 Personal items are the property of each spouse, with the exception of jewelry and other luxury items. Jewelry, which is at the same time an object of individual use, is, according to the legal regime, a common joint property. When dividing property, this thing will be divided (i.e., the spouse who uses it will have to give 1/2 of the value to the other). Neither the law nor the regulation contains a list of luxury goods. Doctrine: a luxury item is determined depending on the family's consumption level. If a luxury item was given as a gift, then it is the property of one spouse. But there must be a written form. If a luxury item was purchased during marriage by both spouses, this is already a regime of common joint property. Our law is silent about the subjects of professional activity of each of the spouses if only one spouse uses it. The doctrine notes that items of professional activity should have a similar treatment to luxury items (common joint property).
1.4 One-time payments of a targeted nature related to the personality of the spouse (for example, the Nobel Prize).
1.5 Property acquired by each spouse during the period of separation, if the actual termination of their family relationship is proven in court.
2. Composition and regime of common joint property of spouses - property that spouses acquired during a registered marriage (except for the property of each of them).
Spouses' property- This:
1. Income from various types of labor, entrepreneurial and intellectual activities; various cash payments that do not have a targeted nature (pensions, benefits);
2. Various movable and immovable things acquired at the expense of general income (house, share in a cooperative);
3. Any other property acquired during a registered marriage, regardless of whose name it is registered and which of the spouses contributed the appropriate funds (spouses have equal rights to common joint property, even if one of the spouses, for good reasons, does not participate in the creation material well-being of the family).
If one of the spouses does not participate in creating the material well-being of the family for unjustifiable reasons, then he does not have the right to an equal share. Under certain conditions, the common joint property of the spouses may become the property of one of them - Art. 37 RF IC. For example, if a joint investment in the property of one of the spouses was made by the labor of both spouses using money, or if the other spouse made an investment in the property of one of the spouses by labor or money, and if the value of the property increased significantly, then such property becomes common joint property.
Basic Rule joint property of spouses- spouses own, use and dispose of common joint property by mutual consent (jointly), and the consent of the other spouse when one of them disposes of such property is presumed. But in some cases you need to get consent of the other spouse, notarized(Article 35 of the RF IC), for example:
1. If we are talking about the disposal of common real estate.
2. If one of the spouses makes any transaction with common property that requires notarization or state registration.
Contractual regime of spouses' property. When entering into a marriage, spouses have the right to regulate property relations between themselves by concluding a marriage contract (Chapter 8 of the Family Code of the Russian Federation).
Marriage agreement an agreement between persons entering into marriage or an agreement between the spouses is recognized, defining the property rights and obligations of the spouses in the marriage and (or) in the event of its dissolution. Such an agreement can be concluded at any time, both before and after the registration of the marriage, but if it is concluded before the registration of the marriage, the agreement will enter into force from the moment of state registration of the marriage. In this case, in any case, notarization of the written form of the marriage contract is required.
At the request of one of the spouses, the marriage contract may be changed or terminated by a court decision on the grounds and in the manner established by the Civil Code of the Russian Federation for changing and terminating the contract.
The validity of the marriage contract terminates from the moment of termination of the marriage, with the exception of those obligations that are provided for in the marriage contract for the period after the termination of the marriage.
A marriage contract may be declared invalid by the court in whole or in part on the grounds provided for by the Civil Code of the Russian Federation for the invalidity of transactions.
The court may also invalidate a marriage contract in whole or in part at the request of one of the spouses if the terms of the contract place that spouse in an extremely unfavorable position.
