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Actual recognition of a joint relationship as marriage. Actual marital relations: problems of legal regulation
The legislation of the Russian Federation does not contain the concept of “actual marriage” (Part 2 of Article 1 of the Family Code of the Russian Federation “marriage concluded only in the civil registry office is recognized”). The state of de facto marital relations, the so-called “civil marriage,” has no legal significance in modern Russia. Civil marriage, as a marital state without registration, does not give rise to family legal consequences and, on the one hand, may partly indicate frivolity in marital relations, their amorphous and unreliable nature, irresponsibility to the partner, family and society. On the other hand, the spread of civil marriages indicates, in our opinion, the imperfection of the legal regulation of relations between the family and the state.
For example, unlike some European countries, a marriage contract in Russia can only regulate the property rights and obligations of the spouses. Such a restriction does not allow the relations between spouses to be regulated sufficiently. The joint obligation of spouses to bear family expenses has not been established.
Alternative forms of marriage are not known in our country; For this reason, civil marriages exist as free cohabitation of a man and a woman. However, in order to protect the rights of citizens, it would be necessary to take into account the experience of European countries, for example, the Netherlands, where the joint life of a man and a woman can be organized in such a way that their mutual rights and obligations are regulated, and there is the possibility of their protection.
A civil marriage in Russia cannot be considered a marriage from the point of view of the law, since it does not contain the rights and obligations that an official marriage presupposes, although from the point of view of relations with each other, their children, in the eyes of acquaintances and relatives, it corresponds to the concepts of “family”, "marriage".
From the point of view of the state, the role of official recognition of a marriage union, carried out through its state registration, is important for streamlining the legal regulation of social support for families, eliminating uncertainty in the field of legal rights and obligations of spouses, their children and other relatives.
An example is the rules governing marriage before reaching the age of marriage (18 years). This possibility is provided for in Art. 13 of the Family Code of the Russian Federation. In addition to the established general rule, according to which, if there are good reasons, local government bodies at the place of residence of persons wishing to get married can allow the registration of a marriage when one of the spouses or both spouses reaches the age of sixteen, it is possible for the laws of the subjects of the Federation to establish norms allowing for the registration of marriages until the age of sixteen as an exception, taking into account special circumstances. Consequently, the lower age limit for spouses is practically limited only by their fertile age, since pregnancy is the reason for early marriage.
Property acquired during a “de facto marriage” is not, by default, joint property, as in an official marriage. When purchasing property (car, apartment, etc.), the owner will be the person in whose name it is registered. Also, bank loans taken during a de facto marriage are considered the obligations of the person to whom they are issued.
Signs of civil (actual) marital relations are living together and maintaining a common household. At the same time, the presence of sexual relations is not mandatory, since civil (actual) marriages may include persons who are not capable of sexual activity due to age or illness. However, participants in a civil marriage must live exactly as husband and wife, namely, their relationship from the behavioral side must be similar to the relationship of spouses in a registered marriage. Otherwise, it would be impossible to distinguish a de facto marriage from an incomplete family, which consists, for example, of a mother and son.
Problems of regulating legal relations between persons living together without state registration of marriage:
- * Establishing the origin of children. The paternity of a child born in a de facto marriage is established by the parents submitting a joint application to the civil registry office, and in the absence of such an application, then in court (clause 3 of Article 48 and Article 49 of the Family Code of the Russian Federation).
- * Property regime. Common-law spouses are deprived of the opportunity to apply the joint ownership regime to the property they have acquired. However, they can agree to extend the regime of common shared ownership to this property (and (or) part of this property) (clause 4 of Article 244 of the Civil Code of the Russian Federation). Living together and running a common household creates a presumption that the cohabitants have the will to establish a regime of common shared ownership of property that was acquired jointly (using common funds) during the period of actual marriage or constitutes the subject of their common household (for example, a summer cottage or household furnishings ). If the property was not acquired in connection with cohabitation (for example, in the process of conducting business or creative activity by one of the cohabitants), then in order to recognize it as common property, a clearly expressed will of the parties to establish relations of common property is necessary.
The Plenum of the Supreme Court of the Russian Federation clarified that a dispute regarding the division of property of persons living (living) a family life without registering a marriage should be resolved not according to the rules of the Family Code of the Russian Federation, but according to the norms of the Civil Code of the Russian Federation on common property, unless a different regime is established between them this property (agreements, contracts concluded between these persons). At the same time, when determining the share in the disputed property, the degree of participation of these persons, de facto spouses, through means and personal labor in the acquisition (creation) of property must be taken into account.
Of course, persons in a civil marriage have the right to voluntarily resolve all disagreements that arise between them regarding the division of property acquired during the period of cohabitation. If an agreement is not reached, disputes regarding the common property of persons who were not in a registered marriage are resolved on the basis of the norms of civil legislation on shared ownership.
As judicial practice shows, such disputes (about recognition of property rights, about reclaiming property from someone else’s illegal possession, etc.) are quite complex from the point of view of proving ownership of this or that property.
- * Alimony obligations. A civil marriage (non-marital cohabitation) cannot create an obligation to pay alimony. At the same time, due to the principle of freedom of contract, common-law spouses can enter into an agreement establishing an obligation to provide maintenance to one of the cohabitants by the other cohabitant (clause 2 of Article 421 of the Civil Code of the Russian Federation). In this case, the common-law spouses themselves stipulate the notarized or simple written form of this agreement, as well as the terms of the agreement, including the possibility of indexing the amount of maintenance, the method and procedure for paying maintenance, etc.
- * Inheritance by law. Unlike the legal spouse, the actual spouse is not a first-degree heir (clause 1 of Article 1142 of the Civil Code of the Russian Federation). He can be recognized as an heir by law only as a disabled dependent of the testator, i.e. if by the day the inheritance was opened he was disabled and for at least a year before the death of the testator he was dependent on the testator and lived with him (clause 2 of Article 1148 of the Civil Code of the Russian Federation).
family law matrimonial property
Legal aspects
Even when running a common household and/or having common children, it is not legally recognized everywhere and not always. Recognized in the USSR in 1926-1944. According to the current Family Code of the Russian Federation, unregistered cohabitation of a man and a woman does not give rise to marital rights and obligations, although the rights of children born in marriage do not differ from the rights of children born out of wedlock. The legislation of some foreign countries recognizes it as a concubinage.
Moral assessment
Religious view
Modern assessments in a secular society
In modern Western and Russian societies, despite a number of legal problems associated with cohabitation, it is becoming increasingly widespread and, accordingly, public recognition. However, there are quite pronounced gradations, reflected by the partners in how they call their union. Typically, those who consider it long-term and durable use the (terminologically incorrect) phrase “civil marriage”, and the partner is called a spouse. The use of this terminology reveals the need for psychological compensation, required due to the sometimes hidden awareness of the inferiority of such a “marriage” in comparison with the official one. In a number of cases, when communicating with a circle of acquaintances, such “spouses” express libertarian views on the non-interference of the state in issues related to personal life.
Household parties
Everyday difficulties in cohabitation are due to the fact that the reluctance to legitimize relationships is often associated with the reluctance of partners to take on the obligations that usually accompany starting a family. In this regard, in accordance with the dialectical unity of rights and obligations, “spouses” cannot fully rely on each other, especially in matters related to children and property relations. This leads to more instability actual marriage towards official, which is confirmed by sociological statistics.
Solving legal problems
Since in a “de facto marriage” the acquired property is not joint by default, as in an official marriage, de facto spouses should take this fact into account. For example, register acquired property (car, apartment, etc.) as joint (shared) ownership; otherwise, the owner will be the title owner (the person to whom this or that object of rights is registered).
see also
- A trial marriage is a temporary cohabitation in order to determine compatibility, either with subsequent registration or separation.
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See what “Actual marital relations” are in other dictionaries:
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An amendment to the Family Code has been submitted to the State Duma, according to which a man and woman who have lived together for more than five years will be recognized as husband and wife, even if their marriage is not officially registered. For this purpose, the concept of “actual marital relations” will appear in the Family Code.
“A de facto marriage relationship is a union of a man and a woman who are not registered in the established manner, living together and leading a common household. The signs of a de facto marriage relationship are: cohabitation for five years; cohabitation for two years and the presence of a common child (common children).” , says the bill.
The status of de facto marital relations entails the rights and obligations of spouses provided for by family and civil law. In particular, to enter into such a relationship, persons must be of legal age, not be married to another person, and not be close relatives.
“The signs of a de facto marital relationship are: cohabitation for five years; cohabitation for two years and the presence of a common child (common children).”
“Our compatriots do not consider a stamp in a passport a necessary condition for creating a full-fledged family,” explain the authors of the bill. “However, from the point of view of the law, so-called cohabitation is not recognized and does not give rise to any legal consequences, which puts members of such a union in a very vulnerable position.” Therefore, he proposes to extend the “legal regime of property of spouses” to property acquired during the period of cohabitation: everything acquired by them during the period of cohabitation will be recognized as joint property.
"A completely unnecessary initiative"
The explanatory note to the document contains a link to countries where there are similar laws - Sweden, the Netherlands, Norway, France and Germany. However, in Russia the reaction to such initiatives turned out to be quite restrained.
Deputy Chairman of the State Duma Committee on Family, Women and Children Oksana Pushkina said that her new bill is “a little scary.” “I think it’s right not to legislatively intrude into this area, because if adults want to get married, they will do it. And if they don’t want to, for any reason, then the legislator shouldn’t oblige them,” Pushkina noted in a comment to the iz.ru portal. “There is a legal marriage. They must enter into it voluntarily. But automatically considering it concluded is a completely unnecessary initiative.”
In her opinion, the adoption of such an amendment to the Family Code will lead to numerous legal disputes, where one of the spouses will prove that cohabitation lasted five years, and the other - that it lasted four and a half. “It will turn out to be nonsense,” stated the deputy chairman of the Duma Committee on Family, Women and Children.
“There is a legal marriage. You must enter into it voluntarily. But automatically considering it concluded is a completely unnecessary initiative.”
The Public Chamber of the Russian Federation commented even harsher on the new legislative initiative. “This law is aimed exclusively at the division of property, the question should not be raised this way, the responsibility of the spouses should not be financially motivated,” said Elina Zhgutova, a member of the OP. “The responsibility of the father, who often leaves the family, is unlikely to increase if he is forced to divide the property.” .
According to Zhgutova, the new amendments to the Family Code will only legitimize “the vicious practice of so-called cohabitation.” According to the results of an anonymous survey conducted in the Telegram messenger, 27% of respondents voted for equating cohabitation with marriage, and 73% voted against.
The explanatory note to the new bill notes that “according to the Ministry of Labor, in 2016 the minimum number of marriages in the Russian Federation over the past 20 years was officially registered.” The new law will likely help correct these statistics if it allows officials to equate “civil” marriages with official ones. But it will not affect the attitude of Russians towards the institution of family and marriage.
According to VTsIOM surveys, 81% of Russians do not consider an unregistered marriage to be something reprehensible, and 60% are sure that the main motive for getting married is the birth of children. 79% of Russians are convinced that living in a marriage is better than living alone. And 12% prefer not to get married, stating something like “family life is not for me, and I’m simply not able to see the same person every day.”
Today, when marriage has ceased to be an economic and social necessity, many more marriages are performed solely for love
At the same time, sociologists note that today, when marriage has ceased to be an economic and social necessity, many more marriages are performed solely for love. This is supported by the dynamics of marriages and divorces: according to Rosstat, in 2017 there were almost 47 thousand more marriages than in 2016. The number of divorces increased over the year by only 3 thousand.
As a result, last year there were 505 thousand divorces out of 905.9 thousand marriages. Women most often file for divorce; among the most common reasons for divorce are infidelity, drunkenness and assault. At the same time, as sociologists note, if in the 1960s after a divorce 30-40% of women remarried, today the figure is 70%.
Sologamy and hikikomori
Statistics on the number of official marriages in Russia are a faint shadow of the family crisis that is unfolding today in developed countries of the world. We are not even talking about the spread of same-sex marriage.
By the way, when the US Supreme Court legalized same-sex marriage two years ago, the Israeli newspaper Maariv burst out with a sarcastic article about the fact that “as the whole world moves away from the tedious institution of marriage, the LGBT community was allowed to get married.”
“My dear gays, before you joyfully plunge headlong into the pool called “marriage,” know that although only a third of marriages formally break up, this only means that everyone else suffers in silence,” wrote the author of the note, Dror Rafael. “You got an equal opportunity to be unhappy, and equality is very important."
Sociologists regard sologamy as “a natural result of the development of narcissism and individualism in modern culture based on social networks.” “Marriage to oneself is a natural consequence of modern individualism, which goes much further than traditional individualism,” notes British sociologist John Horvath. “Traditional individualism somehow takes into account the limitations of traditions and customs. Postmodern individualism is based on the idea of absolute human autonomy. People are told that they themselves are the only architects of their freedom and destiny, and the main goal of their life is the rapturous race to realize their own interests."
The downside to the spread of these “new family forms” is the unprecedented number of people living alone, which is becoming a huge social problem in developed countries. Last week, the UK even created the post of Minister for Loneliness. Tracey Crouch has become minister and will develop the first government strategy in the country's history to combat the problem of loneliness.
On the opposite side of the globe, in Japan, the nation's largest newspaper, the Mainichi Shimbun, last week published a lengthy article about hikikomori - people who deliberately isolate themselves from society. The media first started talking about them about ten years ago, when they were talking primarily about teenagers.
In 2010, the first national study was conducted, according to the results of which the number of people “who do not go to school or work for more than six months” was about 700 thousand people. Now their number has decreased to approximately 540 thousand people. However, at the same time, the number of Japanese who have been in a state of hikikomori for more than seven years increased from 17 to 35%. It was discovered that this syndrome is becoming protracted, and that people of increasingly older age categories are now susceptible to it.
In Japan, 45% of women and more than 25% of men aged 16 to 24 said they were “not interested in sexual intercourse and despise it.”
Today, the majority of hikikomori are among Japanese people over 40 years of age. Moreover, the average duration of self-isolation from society in this age group is more than 22 years. But this is not the only problem: in parallel with the problem of hikikomori, the Japanese are discussing a new social phenomenon - the “80-50 problem”. The essence of the problem is that more and more parents aged 80-89 continue to financially support their 50-60 year old sons and daughters.
Last year, the results of a sociological study, which the media called the “celibacy syndrome,” came as a shock to Japanese society. A large-scale sociological survey found that 61% of unmarried men and 49% of women aged 18-34 have never been in any romantic relationship.
45% of women and more than 25% of men aged 16 to 24 said they were “not interested in sexual intercourse and despise it.” Based on these surveys, Japanese demographers have made a forecast according to which the population of the Land of the Rising Sun will decrease by a third by 2060.
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Unregistered marriage(Also actual marriage, informal marriage, (legal), marriage-like relationship (legal) etc.) - relations between partners living together (cohabitation), not formalized in the manner prescribed by law as a marriage.
In some countries, partners (including same-sex partners) in unregistered marital relationships, under certain conditions provided by the state, have a certain list of rights and responsibilities to each other. Some countries (for example, France) offer partners who do not want to marry a simplified form of marriage in the form of a civil partnership - a legal institution whose status is between an unregistered and a registered marriage.
In the legislation of the Russian Federation on family and marriage there is no concept of “actual marriage” (Part 2 of Article 1 of the Family Code of the Russian Federation “marriage entered into only in the civil registry office is recognized”). However, the absence of a term and qualitative characteristics of this term in regulations does not exclude the use of the terms cohabitation And actual marital relations in the acts of the judicial authorities of Russia, which allows us to assert the admissibility of using these terms.
In colloquial speech, the concept is often mistakenly used to describe such relationships. civil marriage, although according to the TSB definition, a civil marriage is a marriage formalized in the relevant government bodies without the participation of the church. Unregistered relationships began to be called civil marriage in the Russian Empire in the 19th century, since the only officially recognized form of marriage at that time was church marriage and people who cohabited without it called their relationship a civil marriage.
Legal side of the issue
In Russia
The term “de facto marital relationship” was introduced into legal use with the adoption of the KZoBSO (Code of Laws on Marriage, Family and Guardianship) of the RSFSR in 1926. Until 1944, maintaining a joint household and living together was considered a sufficient condition for recognizing a de facto marriage as “real” - with everyone ensuing rights and obligations[ source not specified 1131 days].
By the Decree of the Presidium of the Supreme Soviet of the USSR of July 8, 1944, de facto marriage relations were deprived of legal force. Persons who were members of them were given the opportunity to register a marriage, indicating the duration of their actual life together. If such registration turned out to be impossible, since one of the de facto spouses died or went missing at the front during the Great Patriotic War, then by the Decree of the Presidium of the Supreme Soviet of the USSR dated November 10, 1944, the other de facto spouse was given the right to apply to the court for recognition his (her) spouse who died or disappeared on the basis of previously existing legislation.
But the current Family Code of the Russian Federation, like the Code of Marriage and Family of the RSFSR of 1969, does not contain the terms “actual marriage”, “actual marital relations”. To designate persons who are or have been for some time in an extramarital relationship, the phrases “unmarried persons” and “living family life” are used here.
According to the current Family Code of the Russian Federation, unregistered cohabitation of a man and a woman does not give rise to marital rights and obligations, although the rights of children born in marriage do not differ from the rights of children born out of wedlock.
Also, after the adoption of the Family Code of the Russian Federation in 1995, any evidence that reliably confirms the origin of the child from the defendant became sufficient to recognize paternity. The most reliable of them is genetic examination. It should be taken into account that the norms of the Family Code of the Russian Federation (except for Articles 34 - 37) do not have retroactive force and do not apply to establishing the paternity of children born before March 1, 1996.
Property acquired during a de facto marriage is not, by default, joint property. In the event of termination of cohabitation, the owner of the property (car, apartment, etc.) will be the person to whom it is registered. Also, bank loans taken during a de facto marriage are considered the obligations of the cohabitant to whom they are issued.
In other countries
The number of people living in de facto marriages is growing all over the world, and does not have a clear dependence on the standard of living in a given country. For example, back in 1960, approximately 5% of children in the United States were born to unmarried women, but already in 1980 this figure reached 18%, and in 2009 41%. In Europe, the percentage of actual marriages has also been steadily increasing over the past decades. According to Eurostat, in 2011, 37.3% of all births in the 27 EU countries were out of wedlock. Most children were born out of wedlock in Iceland (64.3%), Estonia (59.7%), Slovenia (56.8%), Bulgaria (56%), Norway (55%), Sweden (54.2%) and France (55%). Other European countries with high out-of-wedlock birth rates are Belgium (49%), Denmark (48.6%), UK (46.9%), Latvia (43.7%), Netherlands (43.3%), Hungary (42%). .2%), Czech Republic (41.8%), Finland (40.8%), Austria (40.4%), Slovakia (34%), Germany (33.5%). The proportion of out-of-wedlock births is slightly lower in Greece (8.1%) and Cyprus (15.2%). In Russia, almost every third child (30%) in 2010 was born out of wedlock.
However, the leaders in extramarital affairs are Latin American countries, despite the high proportion of religious Catholics in these countries. According to the UN, in 1998, between 55% and 74% of children in Latin countries were born out of wedlock, and this has become the norm rather than the exception. Thus, the proportion of children born out of wedlock in Mexico was 41.5%, in Chile - 43.6%, in Puerto Rico - 45.8%, in Costa Rica - 48.2%, in Argentina - 52, 7%, in Belize - 58.1%, in El Salvador - 73%, in Panama - 80%.
Out-of-wedlock births are much less common in Asia: in 1998, the percentage in Japan was 1.4%, Israel - 3.1%, China - 5.6%. However, in Uzbekistan it then reached 6.4%, Kazakhstan - 21%, Kyrgyzstan - 24%.
Germany
Percentage of children born to unmarried women (out of total births), by country, comparing 1980 and 2007. In Germany, along with marriages and same-sex civil partnerships, in German law there is the institution of “marriage-like living communities” (German. eheähnliche Lebensgemeinschaft), also called “extramarital living communities” (German. nichteheliche Lebensgemeinschaft). These marriage-like communities (both different- and same-sex) form, under certain conditions, a “single living community” (German. Einstehensgemeinschaft, Bedarfsgemeinschaft), partially protected by law.
German law only recognizes the legal consequences of a registered marriage or civil partnership (for same-sex couples). However, German judicial practice considers entering into a de facto marriage as the formation of a civil law society, that is, an association of persons that is not a legal entity, but which has the right to have separate property. In this case, actual cohabitation is recognized by internal society (Innengesellschaft). This means that the relevant rules on society apply only to the relations of de facto spouses among themselves, but not with third parties. Actual spouses may enter into an agreement regulating their property relations, but do not have the right to include in the partnership agreement provisions affecting the interests of third parties or the state (provide for the right of one of the actual spouses to make transactions on behalf of the other without a power of attorney, etc.).
Typically, such agreements are called partnership agreements; samples of them have been published. They provide, for example, the following provisions: the right of one partner to use the things of the other without providing replacements for the things consumed; equal participation of partners in the costs of renting residential premises for joint living; the obligation of the partner terminating the de facto marriage to move out of such premises and the obligation of the other partner to exempt him from housing costs starting from the month following the departure; common shared ownership of household items acquired during cohabitation and their division upon termination of cohabitation in such a way that each partner has the opportunity to continue to run a separate household. The terms of the partnership agreement should not contradict “good morals”, for example, establishing an obligation to compensate for losses or pay a penalty in the event of unilateral termination of cohabitation.
Ecuador
In Ecuador, in 1982, the Law “On the Regulation of De facto Marriage” was adopted, according to which “a permanent and monogamous de facto marriage lasting more than two years between a man and a woman, free from the marital union, in order to live together, bear children and provide mutual assistance to each other , provides the basis for the formation of a community of property.” Everything related to the community of property in a de facto marriage is regulated by the rules of the Ecuadorian Civil Code on marital community. In this case, the permanent management of the community is carried out by one of the cohabitants who is authorized to do so by an official charter, and if there is no authorization, the community is managed by a man. The same procedure applies in Ecuador to legal marriage. Article 0 of the Ecuadorian Law on the Regulation of De facto Marriage requires that the survivor of the de facto marriage be subject to all the rules of intestate succession provided for in the Ecuadorian Civil Code as if he were a spouse. Article 11 provides those who “have established a de facto marriage in accordance with this law” with the right to all the benefits provided for by tax and pension laws for spouses.
According to this law, the community of property in a de facto marriage is terminated in the following cases: a) by mutual consent of the persons in it, expressed in a public document or before a civil judge; b) at the will of one of the cohabitants, also expressed in writing before a civil judge and communicated to the other cohabitant in compliance with a certain procedure; c) in the event of one of the cohabitants marrying a third person; d) in case of death.
Moral assessment of the phenomenon
Nowadays, actual marriage occupies an increasingly significant social role in the institution of the family. According to a report by the American Centers for Disease Control and Prevention, increasingly young people prefer de facto cohabitation with each other and do not formalize their relationships legally.
Religious view
In Christianity
From the very moment of the emergence of Christianity, concubinage relations permitted by Roman law were not approved. Christians, entering into marriage according to the civil laws of the Roman Empire, first asked for the blessing of their bishop. The intention to marry was announced in the Church before the conclusion of a civil contract. Saint Ignatius the God-Bearer in his Epistle to Polycarp of Smyrna writes:
Tertullian wrote that true marriage took place in the presence of the Church, was sanctified by prayer and sealed by the Eucharist. Thus, Christians entered into marriage both through a church blessing and through a legal contract accepted in the Roman state.
St. Basil the Great, in his canonical rules, approved as church-wide by the 2nd rule of the Trullo Council, directly equates cohabitation with fornication:
| Fornication is not marriage, and not even the beginning of marriage. Therefore, it is better to separate those who have copulated through fornication, if possible. If, however, they adhere to cohabitation (concubinage) in every possible way, then let them accept the penance of fornication: but let them remain in marital cohabitation, so that no worse thing happens(26th rule of St. Basil the Great) |
59 rule of St. Basil the Great, as a form of penance, prescribes excommunication of fornicators from communion for seven years, but apparently such a strict penance was imposed quite rarely.
Among the later Byzantine canons there are softer views. Thus, Matthew Vlastar, hieromonk from Thessalonica, in his work “Alphabetical Syntagma” believed:
Currently, the Russian Orthodox Church recognizes registered civil marriage as legal:
| During the period of Christianization of the Roman Empire, civil registration continued to provide legality to marriage. Sanctifying marital unions with prayer and blessing, the Church nevertheless recognized the validity of a civil marriage in cases where a church marriage was impossible, and did not subject the spouses to canonical punishments. The Russian Orthodox Church currently adheres to the same practice. |
Patriarch of Moscow and All Rus' Alexy II said:
| We need to welcome the woman who decided to give birth and raise a child alone, help her in every possible way, protect her from sidelong glances and condemnation of the crowd. In our time this is heroism. Especially when you consider that many very prosperous women refuse to have children at all, considering them an unnecessary burden. As for men who incite women to have an abortion or abandon them with their children, the Church condemns them, as does society.” |
Criticizing priests who refused to baptize children out of wedlock, Pope Francis argued that unwed mothers did the right thing by giving birth to a child rather than aborting them, and that the Church should not shun them. He said:
| There are some priests in our church district who do not want to baptize the children of single mothers because these children were not conceived in the sanctity of marriage. These modern Pharisees. These are the ones who clericalize the church. Those who want to separate God's people from salvation. And the poor girl, who, instead of returning the child to the sender, had the courage to bring him into the world, is forced to go from parish to parish to baptize him! |
At war
See also: Field Wife and CanvasserSigns of marriage
paragraph 7 of article 169
paragraph 1 of Article 158, if there are no grounds provided for in Article 14 of the Family Code and do not contradict the basic principles of family law (free voluntary union of a man and a woman)
Monogamous marriage, excluding same-sex marriage and polygamy
The principle of freedom of marriage
Equality of parties in marriage (Article 19 of the constitution)
Marital relations are lifelong - without a specific period
Giving birth and raising children.
Marriage takes place in the manner and form established by law. Exceptions:
Actual marital relations
For ordinary people, this is a civil marriage, but we superhumans should not call it that. Such de facto marital relations do not entail any legal consequences.
Decree of the Presidium of the USSR Armed Forces November 1944 - only registered marriages have legal significance. Now the court interprets it broadly.
Legal consequences of de facto marital relations:
Do not give rise to any legal consequences
Equivalent marriages
– marriages concluded according to religious rites before the creation of Soviet registry offices and during the war of 1941-1945 in the occupied territories.
Conditions and procedure for marriage
Normative base:
Chapter 3 SC
Federal Law of November 15, 1997 No. 143-FZ on acts of civil status
Conditions for marriage (Article 12) are the circumstances (legal facts) necessary for state registration of marriage, as well as subsequently recognizing the marriage as valid and invalid.
Mutual, voluntary consent of a man and woman entering into marriage. Coercion is unacceptable and may in the future be grounds for declaring the marriage invalid.
Reaching marriageable age. Article 13 sets the age at 18 years. A person under 18 years of age is a child. If there are good reasons, at the request of the persons themselves, local government bodies may allow marriage when they reach 16 years of age. Valid reasons have not been established. The procedure and conditions for marriage under 16 years of age may be established and permitted by the law of the subject.
Obstacles to marriage are circumstances (legal facts) in the presence of which registration is impossible and unlawful. If the marriage is still concluded, it may be declared invalid. Article 14 contains a list of:
If at least one of the persons entering into marriage is already in a registered marriage.
Marriages between close relatives in direct descending and ascending lines, as well as marriages between full and half brothers and sisters are prohibited. A more distant degree of relationship is not an obstacle.
Marriages are prohibited between adoptive parents and adopted children, since these relationships in the legal sense are equivalent to the relationship between parents and children.
It is unacceptable to marry a person declared incompetent by a court due to a mental disorder. If, at the time of marriage, a person was already confirmed to have a mental disorder, but there was no court decision yet, then such a marriage may subsequently be declared invalid on the basis that one of the spouses was not aware of his actions. If one of the spouses already in the marriage becomes incapacitated, then the marriage continues and is dissolved in the usual manner.
Article 15 of the RF IC provides for a medical examination of those getting married - but this is optional.
State registration of marriage:
Is the only form of marriage recognized by the state
State registration gives rise to legal relations between spouses
Marriage is registered with the civil registry office (clause 1, article 10)
You can get married at any civil registry office in the Russian Federation.
The basis is a joint statement of the persons entering into marriage. An application submitted before the state registration of a marriage does not carry any consequences, that is, it can be withdrawn without legal consequences. If individuals do not have the opportunity to submit applications in person, they can send a notarized application to the registry office. Clause 1 of Article 11 of the Insurance Code and clause 1 of Article 2 of the Federal Law of the Civil Law indicate that registration is carried out after 1 month from the date of filing the application. Can be changed for valid reasons
Marriage is impossible in the absence of one of the parties; if a person cannot appear at the registry office to register the marriage, then a registry office employee comes out and registers the pre-trial detention center in the hospital, etc.
A note about marriage is made in the passport. A fee of 1 minimum wage is charged
The surnames of the spouses are chosen at the discretion of
State registration of marriage between citizens living outside the Russian Federation is carried out (Article 157 of the Family Code) at diplomatic missions or consular offices (also Article 6 of the Federal Law on Civil Law).
Article 158 allows marriage to be performed in the competent authorities of the state
Section I. About Marriage
Chapter 1. General provisions
1. Marriage registration is established both in the interests of state and public, and in order to facilitate the protection of personal and property rights and interests of spouses and children. Marriage is formalized by registration with the civil registry office in the manner prescribed by Section IV of this Code.
2. Registration of a marriage with the civil registry office is indisputable evidence of the existence of a marriage. Documents certifying the fact of marriage according to religious rites have no legal significance.
Note. Marriages concluded according to religious rites before December 20, 1917, and in areas that were occupied by the enemy - before the formation of civil registry offices, are equal to registered marriages.
3. Persons who are actually in a marital relationship that is not registered in the established manner have the right at any time to formalize their relationship by registration, indicating the period of actual joint life.
Meaning: As a result of popular discussion, a new family code was adopted in 1926 - the Code of Laws on Marriage, Family and Guardianship, many of the provisions of which remain in our time. Thus, a single marriageable age was established for both men and women - 18 years old, community of property of spouses was introduced (common joint property regime), adoption was restored, the procedure for establishing paternity was simplified, etc. The procedure for divorce was changed: instead of the previous judicial and registration ( administrative) order, only the last one remained, i.e. Since the entry into force of the code, spouses could file a divorce only at the registry office in a simplified manner (sometimes even in the absence of one of the spouses). A big disadvantage in the legislative regulation of marriage relations was the equation of an actual marriage with a registered one. This was introduced in the interests of women, because... often due to the lack of a specialty, the need to run a household, and the presence of small children, they were not yet economically equal to men. It should be noted that in the twenties, as now, de facto marriages were quite common in society. A little later, in 1928, an addition was made to the Code, which we would call “punishment for virtue”: if the actual educator refuses to further educate and support the pupil, he is obliged to pay alimony to the actual pupil. In general, the KBSiO of 1926 was a progressive normative act that laid the basic principles for the regulation of family relations in our country, incl. and in the modern period.
7. General characteristics and significance of the decree of the Presidium of the Supreme Soviet of the USSR of July 8, 1944.
During the war, family law underwent radical changes, which was due to the presence of a significant number of children left without parents, as well as a large number of military personnel who left children and spouses without adequate financial support, a significant reduction in the birth rate of children and the number of marriages.
Trying to change the demographic situation for the better, the PVS of the USSR July 8, 1944. adopted the Decree “On increasing state assistance to pregnant women, large and single mothers, strengthening the protection of motherhood and childhood, establishing the honorary title “Mother Heroine” and establishing the Order of “Maternal Glory” and the medal “Motherhood Medal”.
The decree fundamentally changed the state's attitude towards the official recognition of marital relations between spouses. It was established that only a registered marriage gives rise to the rights and obligations of the spouses. Actual marital relations were no longer equated with a registered marriage. Persons who were in a de facto marital relationship before the Decree was issued could formalize their relationship by registering a marriage indicating the duration of their life together. The injustice was partially eliminated by a decree of the Presidium of the Supreme Soviet of the USSR dated November 10, 1944. “On the procedure for recognizing de facto marital relations in the event of the death or disappearance of one of the spouses” allowed, as an exception, the judicial establishment of de facto marital relations if they arose before July 8, 1944. and could not be registered due to the death or disappearance of one of the spouses at the front. The surviving spouse may apply to the court to have his spouse declared deceased or missing. However, not everyone could take advantage of this right, both due to ignorance of it and fear of dealing with the court. In addition, not everyone who filed such a claim could provide the necessary evidence and obtain a court decision in their favor. Decree of July 8, 1944 provided for the mandatory recording of a registered marriage in passports indicating the surname, name, patronymic and year of birth of the spouse, the place and time of registration of the marriage.
What caused such state establishments? The fact is that, by not recognizing de facto marriages, the state freed itself from the obligation to pay pensions to the children of deceased servicemen who were in de facto marital relationships before being called up for military service, but were unable to register them in the registry office.
Accordingly, the mother was recognized as single and could only count on receiving benefits, which were much less than the pension for the loss of a breadwinner - a military serviceman.
The position of illegitimate children was regulated differently. The decree did not allow paternity to be established either in registration or in court. The existing right of a mother to file a claim to establish paternity and to collect alimony for the maintenance of a child born in an unregistered marriage was abolished. When registering an illegitimate child with the registry office, such a child was registered under the mother's surname with a patronymic assigned to him at the direction of the mother. These rules did not apply to children born before the publication of the Decree of July 8, 1944.
Decree of the PVS SSR dated July 8, 1944. contained a number of moral and material incentives to increase the birth rate in the country. Payment of state benefits was established at the birth of the 3rd child. The monetary amount of the benefit increased with the birth of each subsequent child. Mothers of many children were awarded the honorary title “Mother Heroine”, the Order of “Maternal Glory” and the “Motherhood Medal”. Maternity leave was increased from 63 to 77 calendar days, and fees for placing children in kindergartens and nurseries were reduced for low-paid parents.
Decree of the PVS of the USSR dated July 8, 1944. significantly complicated the divorce procedure. According to the Decree, a marriage could only be dissolved through a court. To submit an application, it was necessary to fulfill a number of conditions: indicate the reasons for the divorce, summon the other spouse to court to familiarize yourself with the application, publish an announcement of divorce in the local newspaper, etc. Divorce cases went through 2 stages of trial. The People's Court took measures to reconcile the spouses. In cases of failure to achieve reconciliation, the plaintiff had the right to appeal to a higher court, which considered the case on its merits. Based on the court decision, the civil registry office issued a divorce certificate. When issuing the certificate, a note about the divorce was made in the passport of each spouse and, as determined by the court, one or both spouses were charged from 500 to 2000 rubles.
8. Code on Marriage and Family of the RSFSR (approved by the Supreme Court of the RSFSR on July 30, 1969)(as amended on 03/07/1995, as amended on 12/29/1995) Establishes the procedure and conditions for marriage, regulates personal and property relations arising in the family between spouses, between parents and children, between other family members, relations arising in connections with adoption, guardianship and foster care of children, as well as the procedure and conditions for the termination of marriage, the procedure for registering acts of civil status. Equal rights of citizens in family relationships are secured. The marriageable age is set at 18 years, which in exceptional cases can be reduced to 16 years. In the Soviet Union, which includes the Russian Soviet Federative Socialist Republic on the basis of voluntary unification and equality with other union republics, the most favorable conditions have been created for the strengthening and prosperity of the family. The material well-being of citizens is steadily growing, and the living, living and cultural conditions of family life are improving. Socialist society pays great attention to protecting and promoting motherhood and ensuring a happy childhood. The communist education of the younger generation, the development of its physical and spiritual strengths are the most important responsibility of the family. The state and society help families in every possible way in raising children; a network of kindergartens, nurseries, boarding schools and other children's institutions is being widely deployed.
Soviet women are provided with the necessary social and living conditions to combine happy motherhood with increasingly active and creative participation in industrial and socio-political life. Soviet legislation on marriage and family is called upon to actively promote the final cleansing of family relations from material calculations, the elimination of the remnants of the unequal position of women in everyday life and the creation of a communist family in which the deepest personal feelings of people will find their full satisfaction. Section I GENERAL PROVISIONS Chapter 1 BASIC POINTS
Article 1. Objectives of the Code on Marriage and Family of the RSFSR
The objectives of the Code on Marriage and Family of the Russian Soviet Federative Socialist Republic are:
further strengthening of the Soviet family, based on the principles of communist morality;
building family relationships on the voluntary marriage of a woman and a man, on feelings of mutual love, friendship and respect of all family members, free from material calculations;
raising children as a family in organic combination with public education in the spirit of devotion to the Motherland, a communist attitude to work and preparing children for active participation in the construction of a communist society;
full protection of the interests of mother and children and ensuring a happy childhood for every child;
the final elimination of harmful remnants and customs of the past in family relationships;
fostering a sense of responsibility to the family.
Article 2. Relations regulated by the Code of Marriage and Family of the RSFSR
This Code, in accordance with the Fundamentals of the legislation of the USSR and union republics on marriage and family, establishes the procedure and conditions for marriage, regulates personal and property relations arising in the family between spouses, between parents and children, between other family members, relations arising in connections with adoption, guardianship and guardianship, adoption of children for upbringing, procedure and conditions for termination of marriage, procedure for registering acts of civil status.
Topic: “Marriage under family law.”
Let's consider questions:
Concept, forms, meaning of marriage registration.
Recognition of the legal force of actual marital relations.
Conditions for marriage. Circumstances preventing entry.
Procedure for registering marriage.
Marriage agreement: concept, content, form.
Based on the analysis of the Family Code, the following signs of marriage can be identified:
Clause 3 of Article 1 of the IC enshrines the principle of voluntariness and equality of marriage between a man and a woman.
Clause 1 of Article 27 of the IC one of the grounds for recognizing a marriage as invalid establishes its fictitiousness, i.e. registration of marriage without the intention of creating a family, but for the purpose of acquiring material benefits - acquiring the right to living space, acquiring citizenship, etc. Those. The purpose of marriage is to create a family.
In addition, only a union registered with the civil registry office is recognized as marriage.
Based on these signs of marriage, we can formulate its definition:
Marriage - a voluntary, equal union of a man and a woman for the purpose of creating a family, committed in the form established by law (passed state registration) and giving rise to mutual rights and obligations of the spouses from the moment of its conclusion.
Form of marriage - in the Russian Federation, only a union that has passed the state is recognized as marriage. registration in the registry office.
Marriages performed according to religious rites, national customs and traditions do not entail legal force.
The legal significance of marriage registration is that from this moment mutual rights and obligations of the spouses arise.
Question 2.
There are 3 exceptions in the law when legal force is recognized for unregistered relationships.
1. Until 1917, registration of marriage was not required and legal force was recognized for unregistered marriages, because Civil registry offices were just beginning to be created at that time. The first normative act that laid the foundation for family law in Russia was the decree of the All-Russian Central Executive Committee and the Council of People's Commissars of the RSFSR dated December 18, 1917. “On civil marriage, on children and on maintaining books of deeds.” It said that from now on legal. Only marriages registered in the registry office are valid.
2. On January 1, 27, the Code of Laws on Marriage, Family and Guardianship was introduced, which again allowed for the possibility of recognizing the legal force of an actual marriage in court. But on July 8, 1944, a Decree of the Presidium of the Supreme Soviet of the USSR was adopted, which, among other things, stated that from now on legal force is recognized only for marriage registered in the registry office. Persons who were in a de facto relationship were asked to register their marriage, indicating the real time of its occurrence. If citizens did not register their marriage (did not want to), legal. The strength behind their relationship was only recognized for the period from January 1, 27 to July 8, 44. That is, if people live without registering a marriage from 28 to the present time and decide to divide property, we divide everything they acquired before July 8, 1944 in half, as between spouses, and everything acquired later - according to the rules on common shared property , because From the point of view of the law, they are no longer considered spouses.
If the marriage could not be registered due to the death or disappearance of one of the de facto spouses during the Second World War, the other de facto spouse could apply to the court to recognize him as the spouse of the deceased on the basis of previously valid legislation. To do this, according to the rules of special proceedings, it was necessary in court to establish the fact of the state in the actual marital relationship.
3. Clause 7 of Article 169SK are equivalent to registered marriages performed according to religious rites during the Second World War in the occupied territories of the USSR until the restoration of civil registry offices in these territories.
Actual marital relations were equated to marital relations concluded in the registry office under what conditions and before
Denis Akimkin
Article 264. Cases on establishing facts of legal significance
1. The court establishes the facts on which the emergence, change, or termination of personal or property rights of citizens and organizations depends.
2. The court considers cases to establish:
1) family relations;
2) the fact of being a dependent;
3) the fact of registration of birth, adoption, marriage, divorce, death;
4) the fact of recognition of paternity;
5) the fact that title documents (except for military documents, passports and certificates issued by civil registry authorities) belong to a person whose name, patronymic or surname indicated in the document does not coincide with the name, patronymic or surname of this person indicated in the passport or birth certificate;
6) the fact of ownership and use of real estate;
7) the fact of an accident;
8) the fact of death at a certain time and under certain circumstances in the event of a refusal by the civil registry authorities to register the death;
9) the fact of acceptance of the inheritance and the place of opening of the inheritance;
10) other facts of legal significance.
Article 265. Conditions necessary for establishing facts of legal significance
The court establishes facts of legal significance only if it is impossible for the applicant to otherwise obtain appropriate documents certifying these facts, or if it is impossible to restore lost documents.
And where is cohabitation?
paragraph 7 of article 169
paragraph 1 of Article 158, if there are no grounds provided for in Article 14 of the Family Code and do not contradict the basic principles of family law (free voluntary union of a man and a woman)
Monogamous marriage, excluding same-sex marriage and polygamy
The principle of freedom of marriage
Equality of parties in marriage (Article 19 of the constitution)
Marital relations are lifelong - without a specific period
Giving birth and raising children.
Marriage takes place in the manner and form established by law. Exceptions:
Actual marital relations
For ordinary people, this is a civil marriage, but we superhumans should not call it that. Such de facto marital relations do not entail any legal consequences.
Decree of the Presidium of the USSR Armed Forces November 1944 - only registered marriages have legal significance. Now the court interprets it broadly.
Legal consequences of de facto marital relations:
Do not give rise to any legal consequences
Equivalent marriages
– marriages concluded according to religious rites before the creation of Soviet registry offices and during the war of 1941-1945 in the occupied territories.
Conditions and procedure for marriage
Normative base:
Chapter 3 SC
Federal Law of November 15, 1997 No. 143-FZ on acts of civil status
Conditions for marriage (Article 12) are the circumstances (legal facts) necessary for state registration of marriage, as well as subsequently recognizing the marriage as valid and invalid.
Mutual, voluntary consent of a man and woman entering into marriage.
Coercion is unacceptable and may in the future be grounds for declaring the marriage invalid.
Reaching marriageable age. Article 13 sets the age at 18 years.
A person under 18 years of age is a child. If there are good reasons, at the request of the persons themselves, local government bodies may allow marriage when they reach 16 years of age. Valid reasons have not been established. The procedure and conditions for marriage under 16 years of age may be established and permitted by the law of the subject.
Obstacles to marriage are circumstances (legal facts) in the presence of which registration is impossible and unlawful. If the marriage is still concluded, it may be declared invalid. Article 14 contains a list of:
If at least one of the persons entering into marriage is already in a registered marriage.
Marriages between close relatives in direct descending and ascending lines, as well as marriages between full and half brothers and sisters are prohibited. A more distant degree of relationship is not an obstacle.
Marriages are prohibited between adoptive parents and adopted children, since these relationships in the legal sense are equivalent to the relationship between parents and children.
State registration of marriage:
It is unacceptable to marry a person declared incompetent by a court due to a mental disorder.
If, at the time of marriage, a person was already confirmed to have a mental disorder, but there was no court decision yet, then such a marriage may subsequently be declared invalid on the basis that one of the spouses was not aware of his actions. If one of the spouses already in the marriage becomes incapacitated, then the marriage continues and is dissolved in the usual manner.
Article 15 of the RF IC provides for a medical examination of those getting married - but this is optional.
Is the only form of marriage recognized by the state
The basis is a joint statement of the persons entering into marriage. An application submitted before the state registration of a marriage does not carry any consequences, that is, it can be withdrawn without legal consequences.
If individuals do not have the opportunity to submit applications in person, they can send a notarized application to the registry office. Clause 1 of Article 11 of the Insurance Code and clause 1 of Article 2 of the Federal Law of the Civil Law indicate that registration is carried out after 1 month from the date of filing the application. Can be changed for valid reasons
Marriage is impossible in the absence of one of the parties; if a person cannot appear at the registry office to register the marriage, then a registry office employee comes out and registers the pre-trial detention center in the hospital, etc.
A note about marriage is made in the passport.
A fee of 1 minimum wage is charged
The surnames of the spouses are chosen at the discretion of
