Legal regulation of marriage and family. Family relations include non-property personal and related property relations arising from marriage, kinship, adoption and adoption of children for upbringing, regulated by the norms of family law. Family legislation establishes the conditions and procedure for entering into marriage, terminating a marriage and recognizing it as invalid, regulates non-property and property relations between family members: spouses, parents and children adopted by adoptive parents, and also between ...


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Ticket 38. Legal regulation of marriage and family.

In accordance with the Constitution of the Russian Federation, family, motherhood, fatherhood and childhood in the Russian Federation are under the protection of the state. Family legislation proceeds from the need to strengthen the family, build family relations based on feelings of mutual love and respect, mutual assistance and responsibility before the family of all its members, the inadmissibility of arbitrary interference by anyone in the affairs of the family, ensuring the unhindered exercise by family members of their rights, the possibility of judicial protection of these rights ...

Family, family relationships.

A family - a union of persons based on marriage, kinship, adoption of children for upbringing, characterized by a community of life, interests, and mutual concern. Family legislation lacks a definition of a family, and the Federal Law "On the Subsistence Minimum in the Russian Federation" (1997) provides the following definition: "family is persons related by kinship and (or) property, living together and running a joint household." Family members can include spouses, parents and children, as well as other persons (for example, adoptive parents and adopted children).

Family relations include non-property personal and related property relations arising from marriage, kinship, adoption, as well as the adoption of children for upbringing, regulated by the norms of family law. The regulation of family relations is carried out in accordance with the principles of the voluntariness of the marriage of a man and a woman, equality of the rights of spouses in the family, the resolution of intra-family issues by mutual consent, the priority of family education of children, concern for their welfare and development, ensuring priority protection of the rights and interests of minors and disabled members families.

Family relationships are governed by family law. Family legislation establishes the conditions and procedure for marriage, termination of marriage and its invalidation, regulates non-property and property relations between family members: spouses, parents and children (adoptive parents, adopted children), as well as between other relatives and other persons, and also determines the forms and the procedure for placing children without parental care into a family. Family law is under the joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation and consists of the Family Code of the Russian Federation (1995), other federal laws adopted in accordance with it, as well as the laws of the constituent entities of the Russian Federation.

Family relations: subjects, objects, content, grounds for occurrence and termination.

Subjects of family legal relationsare family members, spouses (a man and a woman who have entered into marriage), relatives (persons descended from each other, or have a common ancestor), adoptive parents and adopted children, actual educators and foster children, stepfathers, stepmothers, stepsons, stepdaughters.

The objects of family legal relationsare the actions of family members (subjects of family relationships), as well as things.

Grounds for the emergence(as well as changes and termination) of family relationships are legal facts - actions (for example, marriage) and events (for example, the birth of a child).

Marriage: concept, procedure and conditions of imprisonment.

Marriage - a voluntary equal union of a man and a woman, concluded in accordance with the established procedure for the purpose of creating a family. The right to marry and found a family is proclaimed in the Universal Declaration of Human Rights and enshrined in many international human rights treaties, but it is not reproduced in the Constitution. The procedure and conditions for marriage are established by Chapter 3 of the Family Code of the Russian Federation. The marriage is concluded with the civil registry office and is registered as a civil status act. The marriage is concluded in the personal presence of the persons entering into marriage, after a month from the date of submission of the application. If there are valid reasons, this period can be reduced (up to the registration of marriage on the day of filing the application) or increased (no more than a month). For the conclusion of a marriage, the mutual voluntary consent of the man and the woman entering into marriage, and their attainment of marriageable age, as well as the absence of circumstances preventing the conclusion of marriage, are required. The age of marriage is set at eighteen years. If there are valid reasons, the marriage can be concluded even before the marriageable age is reached. It is not allowed to enter into a marriage between persons of whom at least one is already in another registered marriage, close relatives, that is, relatives in a direct ascending and descending line - parents and children, grandfather, grandmother and grandchildren, as well as full-blooded and incomplete (having a common father or common mother) brothers and sisters, adoptive parents and adopted children, as well as persons of whom at least one has been declared incapacitated by the court due to a mental disorder.

Termination of marriage.

The marriage is terminated due to the death (or declaration by the court as deceased) of one of the spouses. A marriage can be terminated by its dissolution (divorce) at the request of one or both spouses (as well as at the request of the guardian of the spouse who has been declared incapacitated). Dissolution of a marriage is carried out in the civil registry offices or in court. Dissolution of marriage is carried out in the civil registry authorities after a month from the date of submission of the application with the mutual consent of the spouses who do not have common minor children, as well as at the request of one of the spouses, if the other spouse is recognized by the court as incompetent, missing, or convicted of a crime to imprisonment for a term exceeding three years. Divorce is registered as a civil status act. Divorce is carried out in court in the presence of common minor children or in the absence of the consent of one of the spouses to divorce (except for the cases discussed above). Dissolution of a marriage in court is carried out if the court has established that the further life of the spouses and the preservation of the family are impossible. When considering a case on divorce in the absence of the consent of one of the spouses, the court has the right to take measures to reconcile the spouses, it has the right to postpone the proceedings by appointing the spouses a period for reconciliation within three months. Dissolution of a marriage is carried out if measures to reconcile the spouses proved to be ineffective and the spouses or one of them insist on the dissolution of the marriage. If there is a mutual consent of the spouses to dissolve the marriage (or at the request of one of the spouses in the absence of objections from the other), the court dissolves the marriage without clarifying the reasons for the divorce. In the event of divorce in court, the court determines with whom of the parents the minor children will live, determines the procedure for payment and the amount of funds for the maintenance of children (alimony), a disabled needy spouse (maintenance), and divides the property that is jointly owned. In the event of the appearance of a spouse declared by the court to be deceased or recognized by the court as missing, the marriage may be restored upon the joint application of the spouses, unless the other spouse has contracted a new marriage.

Nullity of marriage.

A marriage may be declared invalid if the conditions of marriage (such as mutual voluntary consent, reaching the age of marriage) are violated, if there are circumstances that prevent marriage (close relationship, adoption relationship, incapacity), if one of the persons entering into marriage is hiding, from another person with a sexually transmitted disease or HIV infection, as well as in the case of a fictitious marriage (that is, if the spouses or one of them registered a marriage without the intention to start a family).

A marriage is declared invalid by the court at the request (depending on the grounds for the invalidity of the marriage) of the spouse whose rights have been violated, the minor spouse, his parents (persons replacing them), the guardian of the incapacitated spouse, the spouse for a previous unbroken marriage, other persons whose rights have been violated by the conclusion of such marriage, guardianship and guardianship authority, prosecutor. A marriage is declared invalid from the day of its conclusion; it does not give rise to the rights and obligations of the spouses. Property acquired jointly by persons whose marriage has been declared invalid is generally subject to the provisions on shared ownership. The prenuptial agreement is usually invalidated. When making a decision on the invalidity of a marriage, the court has the right to recognize the bona fide spouse (the spouse whose rights have been violated by the marriage) the right to receive maintenance from the other spouse, to divide the property as in the dissolution of the marriage, to recognize the marriage contract in full or in part. A conscientious spouse has the right to demand compensation for the moral and material damage caused, and has the right to keep the surname chosen during the state registration of marriage.

The rights and obligations of the spouses.

Each of the spouses is free to choose their occupation, profession, place of stay and residence. Matters of motherhood, fatherhood, education of children and other issues of family life are resolved by spouses jointly, based on their principle of equality of spouses. Spouses are obliged to build their relationships in the family on the basis of mutual respect and mutual assistance, to promote the well-being and strengthening of the family, to take care of the well-being and development of their children. At the time of marriage, the spouses, at their discretion, choose the surname of one of them as a common surname at the time of marriage, or each of the spouses retains their premarital surname, or the common surname is formed by combining the surnames of the spouses.

The legal regime of the spouses' property is valid, unless otherwise provided by the marriage contract.Legal regime of propertyspouses are the regime of their joint property, while the property acquired by the spouses during marriage is their joint property, and the possession, use and disposal of common property is carried out by mutual consent of the spouses. By a marriage contract, spouses have the right to change the legal regime of joint ownership, to establish a regime of joint, shared or separate property of spouses (contractual regime of property of spouses) for all property of the spouses, for its individual types or for the property of each of the spouses. The marriage contract is concluded in writing and is subject to notarization. Spouses are obliged to financially support each other, and in case of refusal of such support and the absence of an agreement between the spouses on the payment of alimony, a disabled needy spouse, a wife during pregnancy and within three years from the date of birth of a common child, as well as a needy spouse caring for a common a disabled child, has the right to demand the provision of alimony in court.

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W.R. Asanov *, J. Ch. Tegizbekova **

Legal regulation of the institution of marriage according to the customary law of the Kyrgyz in the second half of the 19th - early 20th centuries.

This article examines the institution of marriage in accordance with the norms of customary law of the Kyrgyz, analyzes various forms of marriage and the procedure for entering into a marriage, as well as issues of termination and invalidity of marriage, analyzes the traditional patriarchal clan relations of the Kyrgyz family.

Key words: Kyrgyz, custom, marriage, family.

Ulan Asanov *, Zhyldyz Tegizbekova **. Legal regulation of marriage according to Kyrgyz customary law in the second half of XIX - early XX centuries.

In this article we consider the institution of marriage under the Hyrgyz customary law examine the various forms of marriage, the procedure of marriage, as well as termination and invalidation of marriage. The basis of the Kyrgyz families relied on the patriarchal tribal relations.

Keywords: Hyrgyz, custom, marriage, family.

According to Art. 2 of the Family Code of the Kyrgyz Republic, marriage is an equal union between a man and a woman, concluded with the free and full consent of the parties in accordance with the procedure established by law, with the aim of creating a family, giving rise to material and personal non-property relations between spouses. The understanding of the institution of marriage under the current legislation of the country and that which existed earlier under the Kyrgyz adat are completely different. According to archival sources dated 1886, "Kyrgyz marriage is an institution in which separate historical layers, largely formed under the influence of external circumstances, have not yet managed to merge into one whole." It is for this reason that at that time the institution of marriage was a complex legal phenomenon.

Kyrgyz marriage in the early stages of the development of society was understood as a union of two families, and not two citizens, as we understand it today. Sometimes marriage was seen as a bargain, since a woman was seen more as an object of sale and purchase, and the main purpose of creating a family was the continuation of the family. This is evidenced by Art. 1-4 "Collection of customary law of the Kyrgyz." So, Art. 1 provided that "Marriage is a contract with the aim of acquiring a woman for marriage with her." The patriarchal system very strictly regulated family and marriage relations.

As a rule, marriage among the Kyrgyz was regulated by the norms of customary law - adat. G.A. Mukambaeva notes: “As such, the branch of family law differentiated from civil law in the mid-70s, and in those days, family relations were regulated more, apparently, by legal customs. Among the legal institutions, as we would define by modern criteria, such as the institution of matchmaking and marriage, the institution of property relations were more developed.

* Asanov, Ulan Rustambekovich, Adjunct of the Department of Civil Law of the St. Petersburg University of the Ministry of Internal Affairs of Russia. Tel: 741-70-41. Mailing address: St. Petersburg, st. Pilyutova, house 1. e-mail: [email protected]

** Tegizbekova, Zhyldyz Chynarbekovna, postgraduate student of the Department of Theory and History of State and Law, Faculty of Law, Kyrgyz-Russian Slavic University. Postal address: Kyrgyz Republic, Bishkek, Chui Avenue, 42, room 103. email: [email protected]

* Asanov, Ulan Rustambekovich, postgraduate student of the civil law department of St. Petersburg university of MIA of Russia. St. Petersburg, Pilot Pilytov-street, 1. E-mail: [email protected].

** Tegizbekova, Zhyldyz, postgraduate student of the theory and history of state and law department, law faculty of the Kyrgyz-Russian Slavic university. Address: Bishkek, Kyrgyz Republic, 42 Chui prospect, room 103. E-mail: [email protected]

© Asanov U.R., Tegizbekova Zh.Ch., 2011

families, the institution of upbringing children, the institution of maintenance and care for disabled members of the family and clan ”.

Traditionally, the Kyrgyz had several forms of marriage:

1) "kalymny marriage" - marriage with payment of a certain price for the bride;

2) "bel-kuda" - matchmaking, which was concluded under a preliminary agreement between two families;

3) "beshik-kuda" - the engagement of young children who were still in the cradle;

4) "kaichy-kuda" - marriage by exchanging brides;

5) "levirate marriage" - a form of marriage in which a bachelor or widower married the widow of his deceased brother in order not to lose the kalym paid for her;

6) "assorted marriage" - a marriage in which the widower married the younger sister of the deceased wife or bride;

7) "seok kuda" - a form of marriage for maintaining family ties "matchmakers of one bone";

8) "kyz ala kachuu (abduction)" - secret marriages carried out by forcible or imaginary abduction of the bride;

9) "kuch kuiyo", that is, a son-in-law, taken for detention.

Marriage with payment of kalym is the main form of marriage under the customary law of the Kyrgyz. It existed among the Turkic-speaking peoples even before the adoption of Islam. Then, by Muslim ideologists, kalym marriage was enshrined as a kind of purchased one. Kalym began to fulfill the same role as the payment of makhr among the Arabs. The marriage was considered legally valid after the payment of kalym - the bride price. The marriage contract was concluded by the parents. So, for example, in the Kyrgyz epic "Manas" Atemir asks for his daughter from Jakip, the father of Manas, a kalym of 500 horses, 60 camels, 200 cows, 2000 rams and 40 thousand money. By agreement of the parties, the marriage could be terminated subject to the return of the received kalym.

One of the common forms of marriage among the Kyrgyz was the custom of parents' agreement on the marriage of their children even before birth, i.e. then when the child was still in the womb, it was white. The main purpose of such a marriage was the desire of the parents to become related to each other. For violation of these promises to marry children, the guilty party could be liable in the form of a fine. So, on February 5, 1870, the volost ruler Dikambai decided to collect 18 horses from the Kyrgyz Karatai for his grandfather's failure to fulfill the conditions of the promised marriage. In the Erezha of the population of Issyk-Kul and Dzharkent districts from May 20, 1889 and from July 2, 1890, it is provided that if someone marries his daughter, married to another, he returns a kale to the first groom, in case of denial of the guilty swear allegiance by one person from the parish, without removal with a fine of 19 horses and 1 camel.

A very common form of marriage in the past was the enlightenment of young children, who were often still in the cradle, by their parents, between whom, in such cases, a beshik kuda relationship (relationship of lullaby matchmakers) arose. In this case, the boy's father presented the girl's father with a gift, which was later considered as part of the kalym. As a sign of the conclusion of such a marriage, the parents of the children gave their children a bata - a blessing and arranged a small one that would seal the future marriage. If the father subsequently decided not to give his daughter to the intended groom, he had to return the kalym he received. "So, a person who is in matchmaking, if he betrays his betrothed daughter for a stranger, is obliged, if he has, the second daughter to marry the first matchmaker, and if this is impossible, then in addition to the kalym he is obliged to pay 9 heads of different cattle." If the defendant did not have enough of his own livestock, then the penalty was levied first on his relatives in the aul, and in case of their insolvency - on the relatives in the parish, only in the case of a lack of funds from the relatives, the recovery was applied to a dozen, then to fifty, and then to the entire aul ... In the Ereja of the Extraordinary Congress of People's Judges of the Aulieata District of 1907, the following norms were also established: “If a bride or groom dies among one of them before the coming of age, only the paid kalym will be awarded. If any of these betrothed upon reaching the age of majority will meet each other and before the marriage ceremony one of them dies, then kalym will not be awarded. "

A special form of marriage was represented by an exchange marriage, i.e. exchange of relatives, which was called kaichy kuda ("cross" matchmakers). In such cases, either families exchanged daughters, marrying them off to the sons of the other side, or other combinations were possible, for example, one person gave his daughter for the son of another, and he gave his sister for the first brother. Sisters were exchanged in the same way. This custom was called "kyzga-kyz" among the Kyrgyz. According to G.P. Vasilyeva, “this phenomenon, perhaps, originates in dual exogamy. Later, under the influence of patriarchal-feudal relations, the content of this form of marriage changed, the exchange of girls took place in order to reduce or negate the material costs of the wedding and, above all, the payment of kalym. "

The Kyrgyz, like other peoples of Central Asia, had remnants of group marriage, one of which was such a custom as levirate (from Lat. Leuk - brother-in-law, husband's brother). Levirate is believed to be a relic of dual exogamy. This form of marriage consisted in the fact that the closest relative of the deceased was obliged to marry his widow. "The widow was mostly married to the deceased's younger brother." True, a widow with children had the right not to marry and to dispose of property until the sons reached the age of majority, provided that she lived among her husband's relatives. Erezhe of the Tokmok Extraordinary Congress of 1893 established: “After the death of any Kyrgyz, his wife, after a year, must marry one of the brothers of the deceased. If instead of her brothers she prefers a relative or one aul, then she is released to a new one.

Bulletin of the St. Petersburg University of the Ministry of Internal Affairs of Russia No. 4 (52) 2011

Bulletin of the St. Petersburg University of the Ministry of Internal Affairs of Russia No. 4 (52) 2011

Theory and history of state and law

husband, and the property and children remain with the brothers of the deceased, and, in addition, gifts from the new husband are sentenced to the heirs. If the wife marries, in addition to her family, a stranger, then the new husband must pay the brothers of the deceased husband, depending on the state, from one horse with a robe to 15 heads of cattle from a camel. If a woman fled secretly and took with her a part of her property, then the stolen goods are awarded from the new husband or from her up to triple value ”.

Sororat was another form of marriage. So, in the event of the death of his wife, the husband was obliged to marry her sister, provided that she was younger than the deceased. Sororat allowed the widower to get a wife and mother for children at no cost, attached to them due to family feelings.

Marriage form "Kuiyo Kuiyo." was considered humiliating among the Kyrgyz, since the Kyrgyz had to work as a kalym, which could not be paid to the bride's parents. “Such a man was taken to his house and made a son-in-law (he was called kuch kuiyo, that is, a son-in-law taken for labor) by a man who did not have a son of his own and needed labor for his household. Having lived for two or three years and "having worked" his wife, the poor man received the right to take her away. " To maintain family ties, there was a form of marriage of seok kuda - “matchmakers of the same bone”. For example, a son marries the daughter of his grandmother's brother. Usually the Kyrgyz used to say “sook tushtum” - it meant to become related through marriage with one of their own people, to become matchmakers.

Abduction (kyz ala kachuu) as a form of marriage was also encountered among the Kyrgyz. A.I. Pershits in his original works indicated that the form of marriage by abduction was the oldest, predating the contractual form of marriage. The abduction was carried out both with the consent of the bride and without it (forced abduction).

Erezhe of the extraordinary congress of the Atbashi district of biys dated September 18, 1905 indicated that if the groom kidnaps his bride and, due to his well-being, is not able to pay the kalym in the prescribed time, he must before the court, after talking with his father-in-law, enter into agreement with the latter ... Abduction of women was considered a crime only when it was done without parental consent. “No one has the right to take a bride to him without having paid the kalym and ordinary gifts under the contract.” In the case of the kidnapping of a girl without paying the kalym, the kidnapper was subjected to ayyp, depending on the class and the influence of the bride's parents. "If someone takes his bride away from an honorable person - ayip 20 heads of cattle at the head of 1 camel, the middle class - 10 heads of cattle at the head of 1 camel, and the lower class - 5 heads of cattle at the head of 1 camel." The Erezhe of the extraordinary congress of the Atbashi district of biys dated September 18, 1905 provided for other sizes of the fine: “For the abduction of an unmarried daughter of a“ good ”Kirghiz, the guilty person is sentenced to pay aip of 50 head of cattle (starting with a camel), and for kidnapping from a poor (beecher) - to the payment of 9 head of livestock ". Art. 28 Erezhe of the Tokmak Extraordinary Congress of 1893 stated in this regard: “For the abduction of the bride or the kidnapping of an unmarried girl with her consent, at the suit of the parents, a fine of up to nine heads of cattle with a camel is collected from the groom in excess of the kalym. If the abduction is committed without the consent of the girl and with violence, then the bride is returned to her parents at their request, and the kidnapper is sentenced to a fine, which is equal to the kalym of the kidnapped girl. If the parents refuse the kidnapped girl, then, in addition to a fine, a kalym will be awarded ”.

According to the customary law of the Kyrgyz, the conditions for entering into a marriage were parental consent and payment of kalym. In turn, close family ties in the male line, difference in religion, mental or other incurable illness, inequality in origin, social status, property status prevented marriage. Poor people, unable to pay kalym, could hardly get married once, and at an older age. They had to work for a very long time, experiencing significant hardships in order to get married. Those getting married were supposed to be equal to each other in property status, in origin and in rank. Age and health status were not taken into account in determining such equality. A man from a poor family, whatever his personal qualities, could not marry a rich bride.

One of the important and obligatory conditions for marriage was parental consent. The marriage itself was devoid of religious significance, little importance was attached to the moral and moral side of the marriage between the groom and the bride, sometimes the consent of the newlyweds was not required at the conclusion of the marriage, since the issue was decided by their parents, and the children could not contradict them and not fulfill their decisions. “Marriage bargaining” on the part of the parents was the norm in Kyrgyz society. This provision reflected the state of everyday life of the Kyrgyz society, when the properties of an individual were not taken into account, but the interests of the whole family were taken into account.

Marriage by the Kyrgyz, according to customary law, was unthinkable without a kalym, since sometimes obtaining a kalym was the main purpose of a marriage. So, in No. 26, 27 of the Erezh of the Tokmak emergency congress, open for the Kyrgyz of the Tokmak district from May 1 to May 15, 1893, at the Birkulak bridge, it was established: "No one has the right to take a bride to himself without paying the kalym and ordinary gifts under the contract."

The kalym entered directly into the disposal of the bride's father, then merged with the rest of the property and passed after his death to his heirs, like all property. The bride herself could not claim any part of the kalym. Kalym could be paid simultaneously or gradually. The size of the kalym was different. It depended on social status, on the wealth of the bride and groom and their parents, as well as on the dignity of the bride. So, for example, "for a maiden they demand much more kalym from widowers than from single people, since it is even considered a humiliation for a Kirghiz if his daughter is wooed by a widower."

The groom could annually bring in feces in parts. The bride was waiting for his final payment, but if the groom was not able to pay the entire kalym, then they either forgave him the rest and gave him a daughter, or they predicted another for him - younger, who could still wait, and the older one was given for another. In extreme cases, the bride's parents gave back to the groom what was received from him, although in practice such cases were very rare. So, in the statement on the claim for the return of the kalym, it is said that a certain Shambet Kadykov in 1916 on behalf of his brother proposed to the daughter of Budak Bokombayev, a resident of ail No. 3 of the Karakai volost. On account of the kalym, he gave B. Bokombaev 17 cows and 4 horses. But Budak, taking a kalym from Shambet Kydykov, gave his daughter in marriage to another, having received from the latter in the form of a kalym 20 rams, 2 cows with heifers and 1 horse. In the case of Usubaly Talaspayev on the return of the kalym, it was said: “I, Usubaly Talaspayev, married the sister of the citizens of the Kanayevskaya volost Kakchake Davletkaldieva and Orozaly Umetalin named Kulsun for my son. At the same time, the Kulsun brothers took from me for their sister kalym in the amount of 11 heads of cattle and 1000 rubles in old money back in 1915. The brothers sold it for someone else, and they give me back the collected kalym. "

After paying the kalym, in the event of the death of the groom, the bride passed to one of his brothers, a close relative, and in the event of the death of the bride, her younger sister was given for the groom.

The size of the kalym depended on many circumstances: the social and property status of both parties, the personal qualities of the bride were taken into account: the size of the kalym "depended on the wealth, the character of the bride's father and on the quality of the property that was prepared as a dowry." Kalym had a mostly natural character. The composition of kalym changed depending on changes in social attitudes and in the nature of the economy. Before the entry of Kyrgyzstan into Russia, the rich, along with large livestock, also included slaves. Starting from the second half of the 19th century, the Kyrgyz paid kalym with large and small livestock, because the main activity was cattle breeding. So, for example, at the beginning of the XX century. in Isszh-Kul oblast, chon bai (big kalym) consisted of 100 heads of cattle (horses, cows, camels), which were considered nines (toguz), and 1000 rams. The middle kalym - ortho consisted of 50 heads of cattle and 100 rams. Ayak, or poor kalym - 25 heads of cattle and 50 sheep. Later, around the end of the 19th - beginning of the 20th centuries, during the period of widespread development of agriculture, grain was also added to the kalym. With the further development of commodity-money relations, although in relatively rare cases, money was also included in the kalym.

Also, one of the conditions for marriage was religion. Customary marriage in Kyrgyz society for both men and women with a non-consanguineous person was considered illegal cohabitation. Such a marriage was considered invalid from the very beginning. G. Zagryazhsky pointed out: “A Kirghiz cannot marry an unbeliever. A Kyrgyz woman cannot marry a non-conscientious person. " Already after the accession of Kyrgyzstan to the Russian Empire, Kyrgyz men could marry a bride of a different faith, because it was believed that the influence of her husband would help to draw her from one convert to the ranks of the faithful, and women were forbidden to marry a person of another faith.

Age was the next condition for marriage, although in practice this provision was often violated. Coming of age, according to adat, came when a certain age was reached. According to G. Zagryazhsky, the age of majority for marriage came for boys and girls from the age of fifteen. According to Art. 5 of the Collection of customary law of the Kyrgyz, the groom had the right to claim a bride for himself after paying the kalym and upon reaching 15 years of age. The separation of a son does not happen until the son has passed fifteen years. “At fifteen, he is the owner of the wagon,” says a Kyrgyz proverb. However, in different regions of Kyrgyzstan, girls of 13-15 years old could be considered adults, boys - 16-18 years old, or “from fourteen years old for boys, depending on the mind, even from thirteen years old”. Parents tried to marry their daughters at an early age. An old Kyrgyz proverb said: "Tuzdu kop saktaba - suu bolor, kyzdy kop karmaba - kun bolor> (" Do not hold salt for a long time - it will turn into water, do not hold your daughter for a long time - it will turn into a slave "). A girl who reached the age of 17-18 and not married was considered a late bride (karadayai) and became the subject of ridicule and censure. The young man got married depending not on age, but on the financial situation of the family.

The general conditions for marriage included the lack of kinship in certain degrees between the bride and groom. The remnants of exogamy were reflected in the marriage prohibitions of the Kyrgyz. The system of kinship and property among the Kyrgyz was important until a certain period.

According to the Kyrgyz adat, it was forbidden to marry a bride from the family of a male relative up to the seventh generation, but, despite such prohibitions, marriages were concluded both up to the 4th and up to the 3rd degree. 2nd knee, so that you could marry your cousin, cousin, etc. on the female side. G. Zagryazhsky writes that it was indecent to marry people who were in the degree of kinship from the fourth to the seventh generation. People who entered into marriage, being in such degrees of kinship, could not be divorced, but were subjected to the contempt of their relatives.

Those who entered into marriage in the first three degrees of kinship in the male line through immediate dissolution of marriage were shamed. Witnesses who were married and knew about its illegality were subjected to corporal punishment - from 30 to 70 blows with a whip. Mullahs who illegally married such a couple were deprived of the title of mullah and were also punished - from 75 to 90 blows with a whip or sticks. Previously, the rules on kinship were very strict: marriage was prohibited up to the seventh generation inclusive. However, over time, the severity of these rules weakened and even began to wither away.

Bulletin of the St. Petersburg University of the Ministry of Internal Affairs of Russia No. 9 4 (52) 2011

Bulletin of the St. Petersburg University of the Ministry of Internal Affairs of Russia No. 4 (52) 2011

Theory and history of state and law

Since marriage was a matter of the entire Kyrgyz society and was an important event for two families, a certain procedure for the conclusion of marriage was also established, which was clearly regulated by the norms of adat. The marriage agreement was reached in two ways: firstly, by means of an agreement between the parents of both parties (kudaga tushuu); secondly, the groom's side could steal the bride (kyz ala kachuu). According to the Kyrgyz adat, marriage consisted of the following stages: matchmaking (where to tushuu); payment of the bride price (payment of kalym); premarital dates of the bride and groom (kyöööööö or küööööp baruu); holding a wedding party in the house of the bride's father (kyz uzatuu toy) and a wedding ceremony (nike kyuu); arrival of the bride to the groom's house (kelin alyp keluu); the custom of dedication to fire (from the Kirgizuu).

Termination of a marriage under the customary law of the Kyrgyz could be carried out only on the following grounds: divorce; death of one of the spouses.

One of the reasons for the termination of a marriage was divorce, i.e. dissolution of a valid marriage by a competent civil authority - by the court of aksakals. However, it should be noted that the family relations of the Kyrgyz were based primarily on the principle of the indissolubility of the marriage union. The Kyrgyz society was strict about the possibility of divorce. This is evidenced by the fact that the court, which considered the complaints against the spouses, did not immediately dissolve the marriage, giving the family an opportunity to reconcile. The main reasons for divorce were childlessness, adultery, incapacity for marriage, long separation, systematic beatings by the husband, etc. The right to divorce could be both mutual, ie. by mutual agreement of the parties, and unilateral, but in most cases in favor of the man. Divorce at the unilateral request of the husband did not require any offenses from the wife, his desire was enough, but in practice cases of unmotivated divorce were rare, for the most part the husband sent his wife away for bad behavior, childlessness, etc. A woman, however, only in extreme cases decided to divorce, primarily because she had to return the kalym paid for her to her husband, and this, with rare exceptions, she could not do. In addition, in practice, the court usually sided with the man, and the woman did not dare to go to court. A woman who was divorced at the request of her husband did not receive from him either the property she brought to the house, or the children that she lived with her husband. In this regard, being already limited in rights, women were afraid to be left completely without property, and even more so without the right to children, therefore, cases of divorce on the initiative of the wife were isolated. The existing grounds for divorce on the initiative of the wife were not subject to broad interpretation; their number was small and they did not reflect all the nuances of life. There had to be good reasons for a divorce, although occasionally there have been unreasonable divorces. Adat allowed divorce on the initiative of his wife only when the husband was clearly incapable of having sex, systematic torture by her husband, or in the unknown absence of her husband for seven years. Only after the creation of Russian judicial institutions on the territory of Kyrgyzstan in connection with the entry into Russia did the number of divorces on the initiative of women increase.

The institution of the invalidity of marriage also had its place in Kyrgyz society. The Kyrgyz adat established that in the event of the illegality of the marriage, such a marriage was considered invalid. However, the institution of invalidity of marriage was imperfect, sometimes it did not work at all. The grounds for recognizing the marriage as invalid according to the norms of the Kyrgyz adat were the following: disagreement of the parents; age; kinship; religion. Regarding the invalidity of a marriage due to its illegality, the following example can be cited: “One young Kyrgyz woman, 15-16 years old, turned to the district governor with a request for a divorce, referring to the fact that her husband was not able to fully fulfill her marital duty. When her husband was brought in, he turned out to be a boy of 11-12 years old. In this regard, the county governor transferred this case to the people's judge, who, in turn, using his broad powers, made a decision on divorce. "

Currently, the institution of marriage is regulated by legislative norms, in particular by the Family Code, however, the conclusion of a marriage in accordance with the norms of the Kyrgyz adat is still relevant. Undoubtedly, the ancient Kyrgyz customs have weakened and appear in a different perspective in relation to the economic development of society, but it is also impossible to talk about the extinction of ordinary norms among the Kyrgyz. "Some of the traditions and customs of the nomadic Kyrgyz tribes remained in the distant past, preserved only in the memory of the people (in legends and epics), others in an unchanged or transformed form continue to exist among the Kyrgyz to this day." So, for example, the position of kalym is still valid today when a marriage between Kyrgyz people is concluded, however, the payment of kalym by the groom to the bride's parents is more a tribute to Kyrgyz traditions and customs, rather than a means of enrichment, as it was earlier in Kyrgyz society.

Thus, marriage among the Kyrgyz was modernized in connection with a change in the priorities of values ​​in society, however, the customs and rituals during marriage in a modified form are still valid to this day.

Bibliography

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7. Erezhe of the Tokmok emergency congress of 1893 // Materials on the history of the state and law of Kazakhstan. - Almaty, 1994.

8. Kozhonaliev, S. K The customary law of the Kyrgyz. - Bishkek, 2000 .-- S. 291-292.

9. Ayrenkova, NP Marriage, terms of kinship and mental prohibitions among the Kyrgyz // Collection of ethnographic materials on the family and clan life of the peoples of the USSR. - No. 2. - L., 1927. - S. 112-115.

10. Lbramzon, S. M. Kirghiz and their ethnogenetic and historical and cultural ties. - Bishkek, 1990 .-- 480 p.

11. Tolstov, SP Remnants of totemism and dual organization of the Turkmens // Problems of the history of pre-capitalist societies. - 1935. - No. 9-10.

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13. Lzhumagulov, A. Family and marriage among the Kyrgyz of the Chui valley / AN Kyrgyz SSR. Institute of History. -Frunze, 1960 .-- 96 p.

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No. 4 - S. 121-127.

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19. TsGA Kirg. SSR. - F. 255. - Op. 1. - D. 5.

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21. Zagryazhsky, G. Kara-Kirghiz. - 1874. - No. 41.

22. Zagryazhsky, G. Legal customs of the Kyrgyz. / The ancient world of the Kazakhs. Materials, documents and research. - T.6. - Almaty, 2005. - No. 43.

23. Talyzin, A. Pishpek district. Historical sketch (1853-1868). Commemorative book of the Semirechensk region. stat. committee. - Faithful, 1893.

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UDC 340.154 N.A. Burdanova *

Legal regulation of relations in the sphere of family and marriage as a subject of research by scientists of the Russian Empire in the 18th-19th centuries.

In a legal context, comparative analysis has a particular benefit: you can always gain positive experience in regulating certain relations. For example, it is very interesting to compare the legal regulation of family relations, especially relations between such subjects of family law as spouses, in the legislation of the countries of the Commonwealth of Independent States.

We have already drawn attention to the fact that, despite the existence in the historical context of the "common roots" of the legal development of the family legislation of the republics, now - independent states, at the moment we can distinguish some features of our own, exclusively national legal regulation of such difficult, not always amenable the influence of exclusively legal norms of relations, like family ones. Personal non-property rights of spouses are no exception.

So, proceeding from the literal meaning of Art. 2 of the RF IC, family legislation “regulates personal non-property and property relations between family members. The regulation of family relations is carried out in accordance with the principles of the voluntariness of the marriage of a man and a woman, equality of the rights of spouses in the family, and the resolution of intra-family issues by mutual consent ”(clause 3, article 1 of the RF IC). As a general rule, "the rights and obligations of spouses arise from the date of state registration of marriage in the civil registry authorities" (clause 2, article 10 of the RF IC).

It should be noted that the legislator in Russia and neighboring countries approaches the general issues of legal regulation of marriage relations in the same way.

For example, all the CIS countries follow a single path of refusal to provide legal meaning to a marriage contracted only in accordance with religious rites. “Religious marriage (religious marriage) has no legal meaning. This provision does not apply to religious marriages concluded before the establishment of the relevant executive authorities, and documents regarding their confirmation, birth documents, marriage, termination of marriage and death ”(and. 1.5, article 1 of the Family Code of the Republic of Azerbaijan (SK of Azerbaijan).

“Religious rituals related to marriage and family issues have no legal significance” in Belarus and Kyrgyzstan (Article 4 of the Code on Marriage and Family of the Republic of Belarus (COBS of Belarus); clause 2 of Article 1 of the Family Code of the Kyrgyz Republic (SK of Kyrgyzstan). “The religious rite of marriage, as well as other religious rites, do not have legal significance." dissolution of marriage, as well as death ”(clause 3 of article 7 of the Family Code of Turkmenistan (SK of Turkmenistan).

Article 18 of the Family Code of the Republic of Uzbekistan (SK of Uzbekistan) even defines the very moment when the rights and obligations of spouses arise. In particular, it reads: "from the moment of registration of marriage in the civil registry offices, persons who have entered into a marriage become spouses, and from that time on, the rights and obligations of spouses arise between them."

However, to a certain extent, different approaches are used to the legal regulation of the personal relations of spouses in the family in the post-Soviet space.

For example, non-property relations between spouses are regulated by the Family Code of the Republic of Moldova (SK of Moldova) in a very specific way. Article 18 of the Investigative Committee of Moldova proclaims a rule according to which “spouses are obliged to morally support each other and to maintain marital fidelity”.

In Azerbaijan, “spouses are obliged to build their relations in the family on the basis of mutual assistance and a sense of mutual respect, to carry out joint activities for the well-being and strengthening of the family, to create favorable conditions for the development of children and take care of their health” (clause 4 of Art. 29 of the Azerbaijani IC).

In Belarus, “spouses are obliged to build their relations in the family on the basis of a fair distribution of family responsibilities, assistance in the realization by each of them of the right to motherhood (fatherhood), physical and spiritual development, education, manifestation of their abilities, work and rest. The spouses have the right to independently resolve issues related to their personal interests, unless otherwise stipulated in the marriage contract ”(Article 20-1 of the Code of Belarus).

Family legislation of Kazakhstan “guarantees each of the spouses freedom to choose their type of activity, profession and religion” (paragraph 2 of article 29 of the Code of the Republic of Kazakhstan on marriage (matrimony) and family (SK of Kazakhstan).

In Kyrgyzstan, “spouses have an equal responsibility in relation to domestic work” (paragraph 4 of article 32 of the IC of Kyrgyzstan).

The personal rights of spouses in Moldova include “the right to continue their occupation, work in their specialty or choose them at their own discretion” (clause 2 of article 16), as well as “the right to determine their place of residence as a result of independent, free choice” (cl. 3 article 16 of the IC of Moldova).

The Family Code of Ukraine (SK of Ukraine) has its own exceptional features in regulating the personal rights of spouses. The Ukrainian legislator has taken the path of an expanded enumeration and interpretation of the personal rights of spouses, even those that are generally not particularly amenable to legal regulation.

So, for example, Art. 49 SK of Ukraine interprets the right to motherhood as follows: “the wife has the right to motherhood” (paragraph 1 of the article). "A husband's unwillingness to have a child or his inability to conceive a child may be the reason for divorce" (paragraph 2 of the article). "The deprivation of a woman of the opportunity to give birth to a child (reproductive function) in connection with the fulfillment of constitutional, official, labor duties or as a result of unlawful behavior towards her is the basis for compensation for moral harm caused to her" (paragraph 3 of the article). “Conditions for the preservation of health and the birth of a healthy child must be created for a pregnant wife in the family” (paragraph 4 of the article). “For the wife-mother, conditions must be created in the family for the unification of motherhood with the exercise of other rights and obligations” (paragraph 5 of the article).

This code is not limited to the enumeration of the spouse's personal rights, further indicating the husband's personal rights in the family. Article 50 of the UK of Ukraine gives a man “the right to paternity” (paragraph 1 of the article). “The refusal of a wife to give birth to a child or her inability to give birth to a child may also be the reason for divorce” (paragraph 2 of the article).

Of interest is the right of a wife and a husband to equal respect for their individuality, their habits and preferences, indicated in Article 51 of the Ukrainian IC. In addition, “a wife and husband have an equal right to physical and spiritual development, to receive education, to demonstrate their abilities, to create conditions for work and rest” (paragraph 1 of the article).

It should be noted that the legislator of Ukraine in the legal regulation of personal non-property relations goes further than anyone else in the post-Soviet space, legislatively establishing, for example, “the right of a wife and husband to share responsibilities and jointly resolve family life issues” (Article 54 of the IC of Ukraine).

Thus, according to the family legislation of Ukraine, “the wife and husband have the right to distribute responsibilities in the family among themselves. They must instill respect for any work that is done in the best interest of the family. All major issues of family life should be resolved by spouses jointly, on the basis of equality. The wife and husband have the right to oppose their elimination from solving family life issues. It is considered that the actions of one of the spouses regarding the life of the family are carried out with the consent of the second spouse. "

The Family Code of Ukraine mandates spouses to “worry about the family” (Art. 55). “The wife and husband are obliged to jointly take care of building family relations between themselves and other family members on the basis of feelings of mutual love, respect, friendship, and mutual assistance. The man is obliged to establish respect for the mother in the family, and the woman - respect for the father. The wife and husband are responsible to each other, to other family members for their behavior in her. They are obliged to jointly take care of the material support of the family ”.

And, finally, in the IC of Ukraine there is a norm proclaiming “the right of the wife and husband to freedom and personal inviolability” (Article 56 of the IC of Ukraine). It contains the rules that “the wife and husband have the right to freely choose their place of residence. They have the right to take measures that are not prohibited by law and do not contradict the moral foundations of society, regarding the maintenance of marriage relations. "

Paragraph 3 of this article gives each of the spouses the right to terminate the marriage. However, further in the IC of Ukraine it is said that “coercion to terminate marital relations, coercion to preserve them, including coercion to have sexual intercourse through physical or mental violence is a violation of the right of the wife, husband to liberty and security of person and may have consequences established by law "(Clause 4 of Art. 56 of the Investigative Committee of Ukraine).

In our opinion, the above example can be considered the broadest in understanding spousal rights in the family, but it is far from always necessary to regulate the personal non-property relations of spouses in the family in a legal context. It is hardly possible to regulate such personal relationships as love, respect, friendship, loyalty solely by the norms of law.

It should be noted that there is no uniformity in the family legislation of the CIS countries and in approaches to such personal rights as the choice of the surname of spouses.

The classic approach of the Russian legislator to this problem is due, first of all, to the federalism of our state. So, Art. 32 of the RF IC "The right to choose a surname by spouses" states that spouses, at their discretion, choose the surname of one of them as a common surname at marriage, or each of the spouses retains his premarital surname, or, unless otherwise provided by the laws of the constituent entities of the Russian Federation, to your surname the surname of the other spouse. Note that in accordance with Federal Law No. 143-F3 of November 15, 1997, the surname formed by joining the wife's surname to the husband's surname can be recorded as the common surname of the spouses. However, the combination of surnames is not allowed if the premarital surname of at least one of the spouses is double. Further, the Russian legislator indicates that a change in the name of one of the spouses does not entail a change in the name of the other spouse (clause 2 of article 32 of the RF IC).

The rules for changing the surname are contained in the Civil Code of the Russian Federation (Civil Code of the Russian Federation). In the event of a divorce, the spouses are given the right to keep their common surname or restore their premarital surnames (clause 3 of article 32 of the RF IC).

An identical approach to the legal regulation of the personal non-property right to choose a surname by spouses is observed in the family legislation of Azerbaijan (Article 30 of the IC of Azerbaijan), Armenia (Article 25 of the IC of Armenia, Kazakhstan (Articles 29-31 of the IC of Kazakhstan), Kyrgyzstan (Article 31 of the IC of Kyrgyzstan) ), Moldova (Article 17 of the SK of Moldova), Uzbekistan (Article 20 of the SK of Uzbekistan), Turkmenistan (Article 51 of the SK of Turkmenistan).

However, there are also exceptions. So, for example, the CoBS of Belarus Art. 21 "The right of spouses to choose a surname when entering into a marriage" regulates such legal relations as follows: "when entering into a marriage, spouses choose their surname at will, but at the same time, if both spouses wish to be named with a double surname, it is determined by their consent which premarital surname she is will begin. "

"The combination of more than two surnames is also not allowed, but if before marriage the spouses or one of them had double surnames, then by their consent it is determined from which constituent parts of the premarital surnames the new surname will consist."

Further, the CoBS of Belarus means that “the spouses' right to choose a surname is exercised when registering a marriage before making a corresponding entry in the civil registration book. And the change by the spouses of the surname after marriage is carried out in accordance with the general procedure. The change of surname by one of the spouses does not entail the change of the surname of the other of them, although the latter also has the right to apply to change his surname. "

It should be noted that the legislator's approach to the regulation of the block of so-called procedural relations is carried out in different ways in the post-Soviet space. Not all family codes contain chapters on civil status. In many CIS states, including the Russian Federation, these relations are governed by separate laws. Nevertheless, rules of a procedural nature are quite often found in family law precisely in the regulation of personal non-property relations.

So, for example, clause 1 of Art. 31 Investigative Committee of Kazakhstan contains the following rule: “in case of a change of surname during state registration of marriage (matrimony), a citizen is obliged to exchange identity documents within a month”.

Or the family codes of the CIS countries contain reference norms, such as the Family Code of the Republic of Tajikistan (SK of Tajikistan), art. 33 of which states that "when entering into marriage, spouses have the same right to choose a surname, carried out in accordance with the procedure established by the Law of the Republic of Tajikistan" On state registration of acts of civil status "."

Differs in features in this regard and the UK of Ukraine. So, Art. 53 of the IC of Ukraine "The right of a wife and husband to change their surnames" contains a rule according to which, "if during the registration of marriage, the wife, the husband retained their premarital surnames, they have the right to submit to the state registration authority that registered their marriage, or the relevant the place of their residence, a statement on the choice of the surname of one of them as their common surname or on the addition of the surname of the other spouse to their surname. And if the name is changed, the civil registration authority issues a new marriage certificate. "

Based on the conducted comparative legal analysis, one can come to the following conclusions. First, the legislative regulation of personal non-property relations between spouses in the family codes of the CIS member states fully complies with international standards. Secondly, the Russian legislator has the opportunity to gain some moments of positive experience in the legal regulation of personal legal relations between spouses and, accordingly, take into account some of the norms that have shown their consistency in their practical application in the CIS countries, when modernizing Russian family legislation, when making appropriate changes and additions in the RF IC. Third, the positive experience of legal regulation of personal non-property relations of family members should be taken into account when developing a model CIS Family Code, the need for which has long been ripe for adoption.

  • See: L. V. Saenko Reflections on the legal traditions of understanding and appointment of the institutions of family and marriage // Humanitarian scientific journal. - 2014. - No. 1. - P.49-55.
  • On acts of civil status: Federal Law of the Russian Federation of November 15, 1997 No. 143-FZ (as amended and supplemented) // Collected. legislation Ros. Federation. 1997. No. 47, article 5340.

INTERNATIONAL INSTITUTE OF ECONOMY AND LAW

Department of Civil Law Disciplines

Final qualifying work

on the topic: Legal regulation of marriage in Russian family law

Students Domarenok Anastasia Sergeevna

department of correspondence faculty of law

Head: Ph.D.

L.M. Altynbaeva

Moscow, 2016

Introduction

Chapter 1. The legal nature of marriage

1 The history of the development of relations associated with marriage

2 Legislation governing marriage

Chapter 2. Conditions and procedure for contraction of marriage

1 Conditions for marriage

2 The procedure for contraction of marriage

Conclusion

List of sources and literature used

INTRODUCTION

Today, the problem of marriage, as at all times, is quite urgent. The cardinal changes that are taking place in Russia in the fields of ideology, economics, politics, also concern the state-demographic sphere, in particular, marriage and family relations. Society is not indifferent to how the growing generation will be brought up, how it will enter the new millennium. It is impossible to understand and evaluate the state and development of a rather important social institution - the institution of family and marriage, without studying the changes that have occurred to it. Analysis of the transition to the open formation of marriage from a closed one and the growth of women's emancipation, the impact of the growth of personal freedom of a person from the community on family and marriage, etc.

In the institution of the family, marriage is in the central place, because it is fundamental to the emergence of both the relationship of matrimony and other relationships that develop between family members.

For a long time, marriage among various peoples was considered one of the most important events in life. Then, based on this, the act of marriage began to represent a kind of ritual, and its meaning began to be reduced to receiving the blessings of the gods and the approval of others. Social recognition of marriage is realized in the state regulation of sexual relations and is preserved throughout the history of marriage. Today, marriage is a social phenomenon that is mediated by law and has a dual nature: the first is a legal fact (the basis for the emergence of a legal relationship), the second is the legal relationship itself (marriage). By

Art. 1 of the Family Code of the Russian Federation, the family is protected by the state, and the regulation of family relations is regulated in accordance with the principles of the voluntariness of the marriage of a woman and a man and equality of rights for spouses in the family.
V

Art. 2 IC RF spelled out the procedure and conditions for marriage, termination of marriage or its invalidation, direct regulation of the relationship that develops between a woman and a man upon concluding, terminating or invalidating a marriage is carried out in accordance with the norms

Section II of the RF IC. According to

Art. 11 of the RF IC, marriage is concluded in the personal presence of persons who enter into a marriage union, after a month from the date they filed an application with the civil registry authorities.
The institution of marriage requires the adoption of serious, urgent and serious measures to develop, strengthen and improve it. The experience of the world community shows that to some extent effectively the problems of the family can be solved with the help of a consistently conducted and well-thought-out demographic policy of the state.
The mechanism for regulating family and marriage relations contains the family code of the Russian Federation. It is a systematized legislative act regulating the legal issues of family relations and marriage union based on the current Constitution of the Russian Federation and taking into account the new civil legislation.
The object of the research is the legal regulation of marriage.
The subject of this study is the historical development and concepts of the institution of marriage, the correlation in its regulation of different types of social norms, the procedure and conditions for entering into a marriage, legal consequences, the procedure and grounds for its termination or invalidation.
The goals and objectives of the study are aimed at a complete and in-depth study of the issues of the topic.
The purpose of the study is to theoretically substantiate the conceptual characteristics and legal consolidation of the institution of marriage in family law.
These goals determined the formulation and solution of the following research tasks:

Consider the history of the development of relationships associated with marriage;

analyze the legislation governing the relationship on the conclusion of marriage;

study the conditions for marriage;

describe the procedure for entering into a marriage;

to reveal the peculiarities of marriage with certain categories of persons.

The theoretical basis of the research was the works of domestic scientists who contributed to the development of the theory and practice of research of the institution for marriage in the legislation of the Russian Federation, such as M.V. Antokolskaya, E.M. Belyakova, A.M. Danilin, V.I. Vorozheikina. ., Ershov N.M., Ivanov M.A., Kallistratova R.F., Matveev G.K., Orlova N.V., Ryasentsev V.A., Sverdlov G.M., Shakhmatov V.P. and etc.

Research methods. During the research, we used such general scientific research methods as description, generalization, analysis, as well as private scientific research methods - comparative legal and formal - logical methods.

The work consists of an introduction, two chapters, five paragraphs, a conclusion and a list of sources used.

CHAPTER 1. LEGAL NATURE OF MARRIAGE

1 The history of the development of relations associated with marriage

The transformation of the family in the primitive era takes place in the continuous narrowing of the circle of persons of different sex who had the right to have sexual relations. Due to the consistent exclusion of first direct, then more distant relatives, and then even in-laws, any kind of group marriage has become impossible. So over the centuries, the formation of a pair marriage is gradually taking place. The author attributes the continuous desire for the transition to a paired family exclusively to one sex - a man. At the same time, the more, with the development of economic conditions of life, accompanied by the decomposition of primitive communism and the growth of population density, the relations inherited from ancient times between the sexes lost their naive character, the more women seemed burdensome and humiliating, the more persistently they should seek to get rid of the right to chastity, to permanent or temporary marriage with only one man. In the future, already men, under the influence of the same circumstances, applied strict monogamy, of course only for a woman.

Until now, in Catholic countries, parents are looking for a suitable wife for their son. The Catholic Church, canceled divorce, due to the belief that there is simply no cure for both death and adultery. In Protestant countries, the situation is different, in them the son is given freedom to some extent at the choice of a wife from his class. Accordingly, to a certain extent, love can be the foundation of marriage. But in all confessions, as a rule, marriage is determined by the class position of the parties and, accordingly, calculation is always the basis. Therefore, even both parties are often turned into rough prostitution by an intimate institution. The marriage of the proletariat, which differs from the bourgeois one, is based on sexual love. Thus, in this environment, all the foundations of monogamy of the classical manifestation are removed. In this layer there is no property, for the inheritance and preservation of which was the creation of monogamy and domination of the husband. Since the time when by large-scale industry, the woman was torn away from home, quite often turning into the family's breadwinner, the last remnants of her husband's domination have lost all soil in the proletarian dwelling.

Proletarian families no longer become monogamous, even if there is love and enduring loyalty on both sides. And her constant companions, adultery and prostitution, seem to play an insignificant role. The wife actually regained the right to divorce. When the spouses cannot get along, it is preferable for them to divorce. That is, the monogamy of proletarian marriage is manifested in the etymological meaning of this word, but not in its historical sense. The emergence of monogamy lies in the concentration of wealth in the hands of a man and, accordingly, the need to transfer this wealth to his own children by inheritance. This one-sidedness was "corrected" by the social upheaval, which turned wealth passed from generation to generation into public property - the means of production - and reduced concern for heritage to a minimum. The wage labor of the proletariat also disappears and the need for certain women to give themselves to men for money, this happens with the transformation of the means of production into social property.

The change in the forms of family relations, in the words of P. Sorokin, took place gradually and not in a single line. Evolution, with its generally consistent, logical nature of the transition from polygamy to monogamy, has not completely overcome a number of vestiges of past times, thereby making it possible for the researcher to reconstruct and imagine what marriage was like in the old days.

At the same time, based on the works of P. Sorokin, it is worth noting that by the beginning of the 20th century, the situation had changed: marriage was becoming primarily a secular institution. This was caused by a number of socio-cultural factors testifying to the disintegration of the family, therefore, the process of the disintegration of the family not only will not stop, but will develop further.

Many authors argue that if earlier generational relations were based on the unlimited power of parents, their custody of children, and if until now the family had the main responsibility for raising children, now both of these principles have significantly transformed. Educational, educational and guardian functions are transferred to the state.

With the development of capitalism, the family ceases to exist as the main economic unit. A “closed natural economy” with economic development loses all meaning. The "home-hearth", in which its members are preoccupied with food, procurement of supplies, the creation of a good economy, is gradually disappearing.

However, P. Sorokin, having painted a picture of the decline of monogamy, did not believe that the family's crisis was behind its complete collapse. “Decomposition is progressing faster and, apparently, will go in the same direction in the future. Of course, it does not lead to the death of the family at all. The family, as a union of spouses and as a union of parents and children, will probably remain, but their forms will be different. "

As a result of considering various points of view, it can be noted that at the turn of the 19th and 20th centuries, the family was the object of the socio-cultural analysis of many first-class specialists. Unfortunately, after the Second World War, the most talented researchers gave preference to studying sexuality rather than family.

The negative phenomena in the marital, sexual and reproductive spheres, which manifested themselves in the middle and intensified at the end of the 20th century, cannot be unambiguously interpreted only as deviations from the norm. They should be seen as signs of significant evolutionary shifts in the very institution of the family.

Study of the transformation of the institution of marriage and family by ethnographer and lawyer L.G. Morgan has been fought since antiquity. When analyzing its results, the patriarchal theory of the family, prevailing at the time, was refuted, according to which throughout the history of mankind, the initial "cell" of society was the patriarchal or monogamous family. Scientists distinguished five forms of family, each of which corresponded to a certain order of marriage. Consider these five forms of family and marriage.

The consanguineous family was the first stage in the development of the family. Preceded by her appearance, sexual relations were completely disorderly, with them there was no reason to speak of the family as a specific social community. In consanguineous families, marriage groups were divided by generations: all relatives within the family, all relatives were wives or husbands to each other, their daughters and sons formed a second marriage circle, and their children formed the third circle of spouses, the children of the latter formed the fourth circle. In a family of this type, mutual marital duties and rights are excluded only between descendants and ancestors, i.e. between children and parents. At the same time, all sisters and brothers (of any degree of kinship) can be wives and husbands for each other.

The Punalual family was based on the group marriage of several brothers or sisters, collateral or relatives. Such a family consisted of several sisters who are single uterine or with more distant degrees of kinship, they were the common wives of common husbands from whose number brothers were excluded. It was the same with the brothers. With the transformation of this form of marriage into a stable institution, the social basis of the genus was created.

The steam room family is based on the marriage of individual couples, but without their exclusive lifelong cohabitation. It was on the goodwill of both parties that the duration of the marriage depended. This stage of development is due to a man living with one wife, but with the man's right to many in the event of a violation of fidelity. But from women, they demanded a lot of fidelity and for treason they were subjected to cruel punishment. But a pair marriage could easily be dissolved at the request of either side, and as before, the children belonged to the mother. At the same time, blood relatives are excluded from such a marriage.

A patriarchal family is an organization of a certain number of persons, free or not free, in a family that is subordinate to the authority of the father - the head of the family. In rural-type families, such a head of the family lives in polygamy, the unfree have a wife and children, and the purpose of the organization is to care for herds within any territory.

The main features of such a family are the entry of non-free members into its composition and the power of the father. The patriarchal family is a transitional species to monogamous from paired marriage. To ensure the loyalty of the spouse and the origin of children from one father, the spouse is transferred under the full authority of the husband.

The family is monogamous. Its origin occurs between the highest and average degree of barbarism from a pair family. Its final victory marked the beginning of the era of civilization. In such a family, the foundation is the domination of the husband for the purpose of having children without questioning their origin from the same father, and this is necessary, since over time the children will, in the role of direct heirs, take possession of the property - inheritance. Its difference from a pair marriage lies in the greater strength of the marriage bond, because only the husband has the right to dissolve.

According to N.L. Pushkareva, who conducted a comparative analysis of the concept of family and sexual ethics in Catholicism and in Orthodoxy, in Orthodoxy, punishment for deprivation and marriage of virginity, various manifestations of sexuality in marriage, betrayal of spouses were not as severe as in Catholicism. Usually the punishment was a certain number of fasts, numerous obeisances, sincere repentance and repentance.

Since the 20th century, the importance of sexuality has been intensively revised. Today, a married woman can give birth to 10-12 children during the entire reproduction period. In reality, everything is completely different and a woman of European descent gives birth to 1-2 children on average. Hidden behind this decline in fertility is a big change in the structure of behavior in demographics. Reproductive behavior in the masses became isolated from sexual and marital behavior, and became, to a certain extent, autonomous.

Over the past decades, as sample data for different regions, all-Russian statistics record a fairly stable increase in premarital conceptions, which entails a real fact of illegitimate births. A significant increase in out-of-wedlock births is characteristic of the 15-19 age groups. However, it should be noted that women at this age become mothers, as a rule, out of necessity: due to an immature personality nucleus, attitudes and values, and also due to the lack of basic knowledge in the field of human biology. The intensification of extramarital birth is associated with evolution, the weakening of moral consciousness.

Ethnographic sources indicate that until about the middle of the 19th century, both in the countryside and very often in the cities of Russia, there was a custom of marriage through matchmaking and weddings. Hand-rolled marriages, i.e. marriages by personal agreement between the bride and groom without prior parental consent were rare. Public opinion was hostile to such marriages, the so-called civil marriages, considering these acts illegal and immoral.

For all Russian estates, the pre-wedding stage began with matchmaking. The mediator could be: the groom's father, his closest relatives and matchmaker. But in all cases without exception, the permission of the father-head of the family was required. The duty of the matchmakers included not only the completion of the matchmaking procedure itself, but also the search for the bride and the collection of detailed information about her (her appearance and moral character, the size and type of dowry, etc.). The matchmaking ended, as a rule, with the engagement. Thus, the bride and groom, in addition to the parental blessing, received social sanction for marriage. After the engagement, none of the parties could refuse the marriage.

Turning to the peoples of Siberia and the Far East (Chukchi, Evenki, Nivkh and others), it can be noted that the custom of getting a wife was carried out through matchmaking and the payment of kalym. Determined the size of the kalym in collusion. One of the main criteria for marriage is the acquisition of housekeeping skills by the bride and groom. The girls had to learn how to cook food, sew, put up a yurt, and the boys included such duties as: catching fish, hunting animals, managing herds. This form of marriage was based on the principles of patriarchy, economic calculation and the approval of the social environment.

The second half of the 19th century was marked by the widespread use of premarital rituals. For example, in Altai, residents of the central and northern regions adhered to ordinary marriages, which were concluded at the will of their parents, and among the "Poles" (peasants who came from the European part of Russia) and Cossacks, marriage by mutual inclination was widespread. That is, there was no coercion in marriage, although the opinion of the parents was still quite significant.

Young people themselves agreed to get married and then notified their parents about it. In cases of parental consent to marriage, the preliminary conspiracy was not carried out immediately. By the groom's side, the matchmakers were sent directly to the bride's parents.

When young people communicate before marriage, places for acquaintance are localized and the nature of entertainment is predetermined. When they reach the age of marriage, urban youth gets to know and get closer mainly in a homogeneous social environment, with which they have a connection due to their origin.

Communication and acquaintance of young people took place in the presence of their elders, who with passion made sure that everything went as "established by decency." In addition to the “name-day” holidays, the merchants and the nobility were taken to the family dance evenings and balls. At these evenings, the acquaintances of girls with boys were made.

Thus, by the end of the XIX - beginning of the XX century. in many regions of Russia, a new system of premarital cohabitation has emerged. Acquaintance in most cases was established in a socially homogeneous environment. The purpose of these visits was matrimonial. The motives for marriage often became non-economic.

It is worth concluding that youth communication, having become heterogeneous (in terms of social, ethnic and educational indicators) and not limited by any spatial framework, loses its matrimonial monopoly, turning into relationships that are self-valuable for the individual. Removing social and ethno-national barriers expands the circle of potential acquaintances. But this also determines the opposite tendency - the growth of mutual demands of men and women to each other, which leads to a more careful selection of a marriage partner.

At present, the family as a structure-forming element of the system of social life reflects in itself all the changes in socio-economic relations. Since at the present stage the role of the family in society is great, so far in the Constitution of the Russian Federation, Article 38 provides that the family in the Russian Federation is under the protection of the state. This constitutional provision is an essential guarantee for the further strengthening and development of new family relationships.

The Russian Constitution serves as the basis for the implementation of the tasks facing the Russian state and society to protect the rights and legally protected interests of the family.

In modern Russia, the family occupies a full-fledged social status, its interests are purposefully taken into account in the process of socio-economic and cultural development of society, the activities of government bodies, the implementation of federal and regional programs.

Legislation regulates not only relations between the family and the state, but also family relations that go beyond the social norm through the fault of the participants in family relations (divorce, material disputes, etc.). Legal protection arising from family relationships is carried out primarily by the courts. It is also considered by other subjects, for example, public organizations, if this is provided for by law or the charter of these organizations.

Summing up, let us pay attention to the concept of "marriage", this is, first of all, a legally formalized free and voluntary union of a man and a woman, concluded in compliance with the conditions provided for by law, aimed at creating a family, giving rise to mutual rights and obligations of spouses

Thus, the family acts as a dynamic social education. Changes of various nature and content take place in it, which are reflected in the structure and nature of specific intrafamily communication. It is worth noting that the position of a family member changes all the time throughout the existence of family relationships. Changes in marriage and family life are closely interrelated, explained both by the internal logic of the development of the family and the personality of its members, and by changes in society, the subsystem of which is the family.

1.2 Legislation governing marriage

The theory of family law contains the concept of a family as a circle of persons who are bound by property and non-property obligations and rights that arise from marriage, kinship, adoption or other adoption for raising children into a family.

On the territory of the Russian Federation, the conclusion of a marriage union is governed by the national legislation of the Russian Federation. Any foreign citizen and stateless person, at their own discretion, decides the issue of registering a marriage on the territory of the Russian Federation. They can marry both a citizen of their country and a citizen of the Russian Federation.

According to Art. 156 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC), the form and procedure for entering into a marriage on the territory of the Russian Federation are determined by the legislation of the Russian Federation.

The conditions for concluding a marriage on the territory of the Russian Federation are determined for each of the persons entering into marriage by the legislation of the state of which the person is a citizen at the time of the marriage, in compliance with the requirements of Article 14 of this Code in relation to the circumstances that prevent the conclusion of marriage.

The main regulatory documents governing marriage are:

... "Declaration of the Rights of the Child" (adopted by Resolution 1386 (XIV) of the UN General Assembly of 20.11.1959 and ratified by the third session of the Supreme Soviet of the USSR on 13.06.1990).

... "Convention on the Rights of the Child" (approved by the UN General Assembly on 20.11.1989 and entered into force in the USSR on 15.09.1990). The Convention was ratified by the Decree of the Supreme Soviet of the USSR of 13.06.1990 No. 1559-I.

... "The World Declaration on Ensuring the Survival, Protection and Development of Children" (held in New York on September 30, 1990 and signed by the Russian Federation on January 31, 1992). In Russia, since 1993, more than 200 normative legal acts have been adopted concerning all spheres of the life of marriage and the family, including those aimed at expanding measures of their social protection.

4. Universal Declaration of Human Rights (adopted by the UN General Assembly on December 10, 1948)<#"justify">Thus, an analysis of modern legislation on the regulation of marriage relationships showed that Russia has a sufficiently developed legal and regulatory framework in this area. However, the solution of some issues is still fraught with certain difficulties.

invalid marriage person

CHAPTER 2. CONDITIONS AND PROCEDURE FOR CONCLUDING MARRIAGE

1 Conditions for marriage

Marriage belongs to the central place in the family legal concept. Giving the RF IC (clause 2, article 10) of legal significance precisely when registering with state bodies in the civil status record of marriage makes it relevant for theorists to study the conditions of its conclusion, while there are some controversial problems.

The basic rule that establishes the conditions for marriage is Art. 12 IC RF. The analysis of this article reveals the legislative distinction between the conditions for the conclusion of marriage and the circumstances that may impede its conclusion. In Art. 14 IC RF indicates a list of the latter .. These include: the presence of another registered marriage; close kinship and relations that bind adopted children and adoptive parents, incapacity, which is recognized by the court as a consequence of a mental disorder in any of the persons wishing to marry. These circumstances have legal significance, expressed in the exclusion of a marriage in the presence of any of them, while an already concluded marriage can also be declared invalid in court.

The Family Code of the Russian Federation establishes the following conditions for marriage:

mutual consent of the persons who are getting married;

  1. the achievement of marriageable age by these persons;
  2. legal capacity of persons who marry.

Let us examine the above conditions in more detail.

Mutual consent to register a marriage is a reciprocal expression of the will of a woman and a man, which expresses mutual, without coercion, their desire to marry and start a family. The concept of "mutual consent" itself has a very broad definition in terms of its content. Indicates, first of all, the voluntary entry of the bride and groom into the marriage union, expressing their will to do so absolutely freely, without undue influence from the bride or groom, relatives or other citizens. In legislation By "mutual consent" in legislation is meant the truly agreed intentions of the bride and groom to acquire the responsibilities and rights that arise from marriage and to start a family.

Mutual consent to become a wife and husband should express a real desire to enter into a marriage of the parties. That is, their expression of will should be conscious, and they need to give an account of their actions. Therefore, if a person is in a state that does not allow him to understand the actions, the marriage should not be registered. If he was still registered, then in such a marriage, the reality can be challenged as a marriage concluded in violation of voluntary consent

Only heterosexual marriages are recognized in domestic legislation. But it should be noted that quite often they try to register same-sex marriages in Russia. For example, the deputy of the State Assembly of the Republic of Bashkortostan Edward Murzin and the editor-in-chief of the national gay magazine "Queer" Ed Mishin, in the presence of a huge number of journalists, submitted an application for marriage registration to the Central Registry Office of Moscow. As E. Murzin stated, this public action will attract public attention to the social status of sexual minorities in Russia. Thus, the deputy is trying to achieve an amendment to the Family Code by the State Duma of the Russian Federation on the official permission of official marriages.

On February 15, 2005, the Ostankino District Court of the city of Moscow made a decision to citizen E. Murzin to refuse to satisfy the requirement to declare illegal the decision of the registry office to refuse to register a marriage with citizen E.A. Mishin. The court indicated that in this case, one of the provisions laid down in

Item 1, Art. 12 of the Family Code of the Russian Federation, the rule at marriage is about the mutual voluntary consent of a woman and a man who marries. The cassation court upheld the said decision.
As it became known later, the refusal to consider the complaint of the Russian and the deputy and human rights activist of the Parliament of the Republic of Bashkortostan Edward Murzin regarding the contradiction of the European Convention for the Protection of Rights and Fundamental Freedoms to the prohibition of same-sex marriage in Russia was given by the European Court of Human Rights.

  • Considering the above, as well as the traditions of a national character in relation to the marriage union in Russia as a biological union of a woman and a man, in the Family

The Code of the Russian Federation specifies the implementation of the regulation of family relations in accordance with the principles of voluntary marriage of a woman and a man, the advantages of raising children in a family and taking care of their development and well-being. Therefore, given the development of the state and society as a whole in Russia, it is too early to talk about legalizing the partnership of persons of the same sex or same-sex marriages. The Constitution of the Russian Federation stipulates that in the Russian Federation the freedoms and rights of man and citizen are guaranteed and recognized in accordance with generally accepted norms and principles of international law and in accordance with the Constitution of the Russian Federation
(part 1 of article 17), the provision of state support and protection of motherhood, family, childhood and fatherhood is carried out (
h. 2 tbsp. 7,
h. 1 tbsp. 38), and raising children and caring for them are equal responsibilities and rights of parents
(part 2 of article 38).

The guarantee of compliance with the voluntariness of the marriage is the requirement for the spouses to sign an application for marriage in person and the requirement for their personal presence at the registration of the marriage union. Marriage by representatives of the bride and / or groom is not allowed. The need to obtain consent for this marriage of third parties - from the parents of the future spouses is not provided for by the legislator. When a minor marries, parental consent is also not required.

Mutual agreement to register a marriage determines some of the needs of both spouses. The allocation of the needs of family members acting as a species-forming and leading element of behavior in the family is determined by their main meaning as the force of the movement of life. Being the deep basis of the motive of behavior of people entering into a marriage union, is the need for children and a family is related to the biological and social needs of a person to create a new human life.

The intention of a woman and a man to marry is subject to their respective marital behavior. This behavior is conventionally divided into two types.

  • The first type includes a system of actions and relationships and actions that lead to the conclusion of a marriage union. This is the so-called marriage choice.
  • The second type of marital behavior manifests itself only after the conclusion of the marriage union, and when the spouses become parents.
  • In modern conditions, with the increasing appearance of alternatives to marriage, such as the cohabitation of a woman and a man without formalizing their relationship, it is most important to study the first part of marital behavior - to explore marriage choice. The weakening of socio-cultural norms of marriage in history makes entering into a marriage union in fact a problematic choice from several life models of one. During the general entry into a marriage union, it was pointless to study the motives of marriage. The driving force in mating behavior of the first kind is the need for a mate and marriage. And the culmination in this situation is the mutual consent of the registration of marriage and its registration itself.
    • There are situations that, for certain reasons, increase or decrease the need to choose a spouse and to marry. The formation of mutual consent to register a marriage is influenced by such factors as age, education, nationality, social origin and other personal characteristics of a man and a woman.
    • In addition, there is a tendency for men to prefer a woman as a spouse, who is younger, with a lower education and social status, and an opposite choice when a woman chooses a spouse. However, this is not an indicator of the lack of love among those wishing to enter into a marriage. Direct studies of the reasons for marriage, leaving aside the question of the degree of validity of attributing the words evaluated by the participants to the motive, confirm both the prevalence of the concept of "love" and the importance of other circumstances.

    The next condition for marriage is the attainment of marriageable age. For women and men, this age is the same and begins upon reaching 18 years of age. When there are valid reasons, local governments at the place of state registration of marriage at the request of those wishing to enter into a marriage union, have the right to permission to enter into marriage to persons who have reached the age of 16. The laws of the constituent entities of the Russian Federation may establish conditions and procedures, the presence of which, as an exception, gives permission for the marriage of persons who have not yet reached 16 years of age.

    Nevertheless, now in the circle of jurists there is an active discussion of raising the marriageable age to 21 years, in order to protect girls and boys from an early crown. And in the case when adolescents still become parents, despite the prohibitions of adults, their child will have to be taken under the care of the elders.

    • Such proposals were voiced at a conference on monitoring law enforcement, which was held by the Ministry of Justice in St. Petersburg. I would like to emphasize that ideas of a radical nature that relate to, for example, raising the age threshold for marriage come from legal scholars, and not from officials. The Ministry of Justice is still only collecting proposals for their further study.
    • According to one of the conference participants, who is a lawyer specializing in family law, Victoria Pashkova to Rossiyskaya Gazeta.

    Codex that bridging existing gaps. Early marriages are a hot issue today.

    “To date, 27 constituent entities of Russia have issued laws that reduce the age of marriage from 18 to 14 years, and a number of them do not even contain an indication of the minimum age for marriage, upon reaching which persons can marry if there are valid reasons such as pregnancy, birth. a common child, an immediate threat to the life of one of the parties, the call of the groom to serve in the Armed Forces of the Russian Federation, says Victoria Pashkova. “In this regard, situations often arise when parents who have reached the age of 16, but have not married, have less rights than parents who have not yet reached 16 years of age, but are married and emancipated.”

    By the way, in the current family legislation there is no unified approach to establishing the circumstances under which it is possible to reduce the marriageable age. In some regional laws, the list of such grounds is named exhaustively. In others, it is open. Thirdly, they are not named at all, indicating only that they are of a special nature. The most frequently mentioned: the birth of a child, pregnancy of a minor, an immediate threat to the life of one of the parties, the call of the groom to serve in the Armed Forces of the Russian Federation. Even one and the same circumstance - the pregnancy of a minor - may have different criteria in regional legislation. So, the timing of pregnancy is either not specified at all, or a certain duration has been established: in some cases 12, in others - 22 weeks.

    • There is no doubt that modern youth is not ready to take a responsible approach to the conclusion of marriage, the creation of a family. This is confirmed by the fact that today a large number of marriages end in divorce, which creates certain problems and causes psychological trauma both to young people themselves and to children born in this marriage. Raising the marriageable age, it seems to us, will provide more opportunities for thoughtful preparation of young people for family life, strengthening family values ​​in their minds, getting an education, acquiring invaluable life experience for them to make further independent decisions, etc.
    • The establishment of marriageable age is due to the fact that the most important goal of creating a family is the reproduction of human life, that is, the birth and upbringing of children. The ability of people to bear children appears when a person reaches a certain age. In women, this ability usually appears at the age of 11-12, sometimes later. For men - at 14 - 15 years old or later. However, the legislator has established the age of not 12-14 years as a condition for marriage, but 18 years. This seems to be explained by two reasons. First, by the time the ability to bear children appears, the formation of the human body has not yet been completed.

    Early marriage (before the age of 18) is undesirable, since the associated pregnancy, childbirth, breastfeeding can adversely affect a woman's health. To become spouses and parents, people must have not only physiological, but also socio-psychological maturity. The latter arises later than the onset of physiological (sexual) maturity and depends, not so much on the mental and volitional qualities of a person, as on the conditions in which young men and women lived and were brought up. If their living conditions were difficult or their parents consciously prepared their children for a future independent life, social and psychological maturity comes earlier. If a boy or a girl lived in "greenhouse" conditions, such maturity comes later.

    As already mentioned, the legislator has established a single minimum age for marriage for men and women at 18 years, obviously based on the following considerations:

    • 1) the formation of the female body by this age is completed (except in cases of pathology), and the formation of the male body by this age has not yet been completed, but as a result of marriage, regular sex life does not have such an adverse effect on it as pregnancy and childbirth on the body women;
    • 2) by the age of 18, a young man and a girl receive a complete secondary education or even a specialty, profession, which allows them to organize a more or less independent family life;
    • 3) at the age of 18, boys and girls acquire full civil legal capacity, and at the same time - the ability to independently conclude all transactions and other civil law legally significant actions;
    • 4) in accordance with clause 1 of Art. 54 of the RF IC, a child is a person under the age of 18 years (majority). Consequently, upon reaching this age, the rights and obligations of parents to raise their children cease. Thus, adults are recognized as adults, and, quite logically, the legislator grants them the right to marry and create their own families.

    During the development of the Family Code, proposals were made to reduce the marriageable age. These proposals were rejected because such a decline would have encouraged early marriage, which statistics show is highly volatile. However, the impact of legislation in this area should not be overestimated. The impossibility of entering into a registered marriage before reaching the age of 18 does not serve as an obstacle to entering into a de facto marriage relationship. Refusal of state registration of such relations, if they have already developed, can not lead to anything, except for the violation of the rights of the actual spouses.

    • Therefore, in paragraph 2 of Art. 13 of the Family Code provides for the possibility of lowering the marriageable age for persons who have reached the age of 16, if there are valid reasons. The lowering of the marriageable age is carried out by the local administration bodies at the place of marriage. The list of reasons that are recognized as valid for lowering the marriageable age is not given in the legislation. Most often, these reasons are called the actual creation of a family by minors, pregnancy or the birth of a child. Other reasons are also possible: an incurable illness of one of the spouses, conscription, etc.
    • In practice, most often, a woman's pregnancy or the birth of a child appears as a valid reason. But local governments give this kind of permission for other reasons.
    • Federal law does not provide for the possibility of marriage by persons under the age of 16. This is due to the fact that cases of the need to reduce the age of marriage below 16 years are quite rare. The second circumstance, according to which federal legislation does not provide for such a reduction in the marriageable age, is the inability of these young people to create a strong and normal family. The third circumstance is that marriage as a result of lowering the marriageable age leads to the acquisition of full civil legal capacity, which these persons cannot always properly use at such an early age. The legislator cannot ignore these factors when deciding on the reduction of the marriageable age.

    The legislative bodies of the constituent entities of the Russian Federation have the right to establish the procedure and conditions, in the presence of which a permit may be given to enter into a marriage by a person under the age of 16, taking into account special circumstances.

    • This gives the impression of expanding the list of conditions allowing marriage by sixteen-year-olds through local government permission to marry. Therefore, the edition of para. 1 p. 2 art. 13 SC must be changed. It seems that, as in the previous family legislation, we should talk about the right of a local government body to reduce the age of marriage, but not about any permission to marry. The theoretically made conclusion is explained by the absence among the conditions of marriage, established by Art. 12 of the RF IC, any additional requirements for persons under marriageable age, including parental consent, state or municipal authorities, etc. for juvenile marriage.
    • It is also worth noting the illegality of the condition regarding the consent of legal representatives due to its contradiction to par. 1 p. 2 art. 13 and Art. 12 IC RF. Since the family law is in accordance with Art. 72 "k" of the Constitution of the Russian Federation in the joint jurisdiction of the Russian Federation and its subjects, here it is of fundamental importance to establish a clear correlation between federal legislation and the legislation of the subjects of the Russian Federation. In accordance with para. 2 p. 2 art. 3 of the RF IC, the regulation of family relations by the laws of the constituent entities of the Russian Federation is allowed on issues directly attributed by the Code to their jurisdiction, as well as on issues not directly regulated by it. With regard to the subject of this article, it should be noted that the conditions and procedure for the marriage of persons who have reached the age of sixteen cannot be established by the laws of the constituent entities of the Russian Federation. The corresponding relations are the subject of regulation of the federal law, that is, the RF IC.
    • The Family Code of the Russian Federation does not fill the gap in family legislation regarding who can specifically apply to the local government with a petition to lower the marriageable age. According to a number of authors, this right is granted to minors themselves who wish to register a marriage; their legal representatives (parents, adoptive parents, foster parents or guardians); bodies performing guardianship functions or duties. This judgment is objectionable. Firstly, in contrast to the RSFSR CoBS (Art. 15), the RF IC (Paragraph 1, Clause 2, Art. 13) directly connects the decrease in the marriageable age with the presence of a request from minors themselves who wish to marry. Secondly, as noted earlier, the position of the legal representatives of minors who have reached the age of sixteen, when deciding on the reduction of the marriageable age, is not of fundamental importance for the local self-government body. Note that an application for lowering the marriageable age can be submitted to a local government body only personally by persons wishing to marry and have reached the age of sixteen. In this case, a written form of such a statement is required.

    Thus, the legislator, regulating the age of marriage, pursued the goal of specifying one of the conditions for marriage for various categories of people. At the same time, the legislator also pursued the goal of directing in a certain way the individual behavior of minors when they decide the issue of marriage. For a long time, the model of culture prevailed in Russia, suggesting that effective relations in the family are preferable to social relations, that morality dominates the law. The family remains the basic unit of Russian society. An indicator of evolution - both psychological and social - will be the situation when young people in Russia begin to understand and accept marital solidarity and loyalty, the value of which they will feel only in the family.

    • 2.2 Procedure for the conclusion of marriage

    According to the Family Code of the Russian Federation, only a marriage duly registered with the relevant authorities (registry office) is recognized as legally valid. Such a marriage, as a legal event, gives rise to the corresponding family-legal relationship. Registration of marriage between citizens takes place only in the registry office and / or only by authorized persons (since there are "exit" marriage procedures). Registry offices are formed by public authorities, according to the Federal Law of the Russian Federation "On acts of civil status" dated 10.22.97.

    • Citizens outside the Russian Federation enter into marriages at consulates. In the event that the marriage is concluded in another institution by an unauthorized person, this condition is invalid and entails any legal consequences, and all documents, transactions, agreements, etc., which took place after the conclusion of such marriage.

    Registry offices, registering marriages, have the following goals: protection of personal and property rights of the parties, which are recognized as legal and protected by the Constitution of the Russian Federation, and accounting for demographic data. Registration of marriage and entering the details of this event in a special register, allows you to collect statistical data on the number of prisoners and divorced barges, the duration of the marriage, the number of children in families and other information.

    According to historical data, during the existence of the institution of official marriage in the system of the state, an actual marriage took place, when the relationship was not formalized with the help of a special body. This type of coexistence was called (and is called) "cohabitation", which does not accurately characterize the relationship that has developed in such a family. In addition, it should be noted that despite the seeming similarity, actual marriages do not give rise to legal consequences, and also, at one time, such "spouses" were condemned by the church and the state.

    • Despite the fact that the Russian Federation recognizes only official marriages registered with the registry office, there is an exception only for those marriages that were concluded according to the rules of religious rites in the occupied territories that were part of the USSR during the Second World War until the restoration of the registry office on the territory ( Clause 7, Article 169 of the Family Code of the Russian Federation).
    • The conclusion of a marriage should take place according to well-defined rules, which are provided for in the RF IC. Article 11 says that marriage can only take place in the presence of the persons (parties) who submitted the application. In this case, the application can be submitted electronically. In addition, the consent of each of the future spouses to enter into marriage is required, and if one of the parties is under 18 years of age, the consent of the parents is required to enter into the marriage.
    • In the application for registration of marriage, the passport data of the persons entering into marriage must be indicated, where the consent to the marriage is confirmed and the absence of circumstances that prevent the conclusion of marriage is noted.
    • Next, let's turn to the law “On acts of civil status”. According to paragraph 1 of Art. 29 of the Law, the following information must be entered in the marriage deed:
    • - surname (before and after marriage), first name, patronymic, date and place of birth, age, citizenship and nationality (at the request of the persons who have entered into marriage), place of residence of each of the parties;
    • - information about the certificate of dissolution of the barque (if there is a previous marriage);
    • - details of documents proving the identity of those who entered into marriage;
    • - the date and number of the record of the marriage certificate;
    • - the registry office, which made the state registration of marriage;
    • - series and number of the issued marriage certificate.
    • It should be noted here that the legislator did not include a medical examination certificate in the mandatory documents. This is where the issues of ethics and personal safety intersect, since in this way it is possible to hide serious health problems from the spouse. In addition to the fact that the other side may suffer, diseases can be inherited, children. We believe that this issue should be correctly resolved within the framework of family law.
    • The purpose of the medical examination of the parties to the marriage is to form a healthy full-fledged family. However, it should be noted that many married couples do not properly register their relationships, that is, there is a tendency towards a decrease in the number of registered marriages. According to the 2010 census, the number of married couples was 33 million (in 2002 0 34 million). At the same time 4.4 million (13%) were in unregistered relations (in 2002 - 3.3 million, or 9.7%).
    • Obviously, if the legislation provides for a mandatory medical examination, few couples will decide on this event, and therefore the institution of unregistered marriages will arise. Many couples can live their entire lives without registering a marriage, however, as noted earlier, such a relationship does not entail legal consequences, since this type of coexistence between people of different sexes who are not relatives is not recognized by the state. Accordingly, all the rights and obligations that arise from the Family Code cannot be applied to couples who have not registered a relationship.
    • Scientists have been looking for ways to avoid passing on genetically damaged information to future offspring for many years. Here we can say that the knowledge of the parties to the marriage that the spouse has a disease that can affect future children, that is, endanger the health of not only the family, but also the nation as a whole, can contribute to what is possible marriage in such cases will be impossible. Or, as an option, give the spouses the opportunity to choose other methods of obtaining offspring. It is likely that knowledge about the ability of the second party, upon marriage, to have healthy offspring, will reduce the number of divorces, which are becoming more and more in the latter.
    • However, let's return to filing an application, which at the moment can be submitted at any registry office on the territory of the Russian Federation. Previously, the application could be submitted to the authority in the territory of service of which the bride or groom lives. This circumstance is quite expedient, since it creates a lot of conveniences for persons who are getting married.
    • In the event that one of the parties (or both future spouses) are not able to appear at the registry office, the application can be submitted by a third party, while all the data and signature of the party are affixed in the same way as when writing an application to the registry office, the signature must be certified by a notary, or the head of the institution where one of the parties is located (for example, if this is an institution for the execution of punishments, then the form is taken at the registry office, and the signature can be certified by the head of the correctional institution). At the same time, regardless of the option for filing an application, the registrants are given a month to check the seriousness of their intentions to marry. In addition, this period makes it possible to find out the obstacles to marriage, if any.
    • An application submitted to the registry office does not entail any legal consequences, as well as refusal to marry after the application has been submitted, however, such behavior can be condemned by other people.
    • The Family Code of the Russian Federation has retained the position of the previous family legislation on the possibility of reducing and increasing the term for registering a marriage. Part 2, clause 1 of Art. 11 of the RF IC provides for the possibility of early registration of marriage, but only if there are valid reasons. A variety of reasons can be considered valid. The legislator only gives an approximate list of them. Among these reasons are: the bride's pregnancy, the birth of a child by her, an immediate threat to the life of one of the parties and other special circumstances. In the presence of such circumstances, the marriage can be concluded on the day of filing the application. In addition to those indicated in the list, the following are valid reasons:
    • - the call of the groom to serve in the army;
    • - urgent departure on a long urgent business trip;
    • - urgent travel to work abroad;
    • - serious illness of one of the spouses
    • - old age of persons entering into marriage, already living as one family for a number of years.
    • This list can be continued, since there may be other circumstances in a person's life that require accelerating the conclusion and registration of marriage. But all the reasons that are presented as valid must be confirmed by the relevant documents. The change in the term of marriage registration is made by the head of the registry office on the basis of a joint application of the bride and groom (clause 3 of article 27 of the Federal Law "On acts of civil status").
    • As a rule, marriage registration is carried out at the premises of the registry office. However, if the groom and the bride, or one of them cannot appear at the registry office due to a serious illness or for any other valid reason, marriage registration can be made at home, in a medical institution or other organization, but certainly in the presence of the bride and groom.
    • State registration cannot be carried out if there are circumstances that prevent marriage, provided for in Art. 14 RF IC. Therefore, the head of the registry office has the right to refuse state registration of marriage if he has evidence confirming the existence of these circumstances.
    • It is worth noting that the law provides for a refusal to register a civil status act, but there are absolutely no grounds for refusal to accept an application, and this subsequently can become a reason for violating the rights and legitimate interests of citizens. In Article 11 of the Federal Law “On Acts of Civil Status”, the refusal of state registration of a civil status act is possible if state registration contradicts the law and if documents are submitted that do not meet the requirements. Federal law "On acts of civil status" in accordance with paragraph 9 of Art. 27 if there is evidence confirming the circumstances that prevent the conclusion of marriage, then at the state registration of the conclusion of marriage, refusal is allowed.
    • If we talk about state registration of birth, registration of divorce by court decision, registration of death, the current rules are quite appropriate and sufficient, since the procedure for the commission of these acts does not provide for a time interval between the filing of an application and state registration. With regard to the registration of marriage, there is a time interval between the stages of filing an application and the preparation of an act record, which can be shortened or extended.
    • In practice, for example, in exceptional cases, registration can be made on the day the application is submitted, that is, the monthly period can be reduced. An extension of the term is also possible. We agree with the opinion of many authors that it is necessary to provide cases for refusal to accept it at the stage of accepting the application during the procedure for registering a marriage. For example, the applicant has not submitted all the necessary documents; by law, this is not a reason for refusing to accept the application. Another example: when submitting an application for marriage registration, a flaw of will was revealed in one of the persons applying for marriage registration, in the form of not knowing Russian. Mutual voluntary consent is, on the one hand, a prerequisite for marriage, but despite this, refusal to register is possible only if there are obstacles provided for in Art. 14 of the RF IC, and the existence of mutual consent is not included in this article at all. The subjects of the Russian Federation try to fill in the presence of this contradiction and gap in their administrative regulations, which provide for such procedural actions as, for example, the termination of state registration of marriage, the basis for this is the applicant's expression of disagreement (orally or in writing) of marriage, or a statement of any a person about the existence of circumstances that prevent marriage.
    • But administrative regulations cannot establish procedures that are not provided for by the RF IC, this is another proof that it is simply necessary to provide for a procedure for refusing to accept an application directly in the Federal Law "On Acts of Civil Status".
    • There is an example in the comments of the court practice on family matters that clearly confirms the need for such a procedure. "N. applied to the court with a complaint against the actions of the registry office, which refused to register the marriage due to the fact that the person entering the marriage did not voluntarily submit an application for marriage registration. The court considered that, despite the fact that V. pointed out that the parents of minor N. forced him to marry, the fact that he was an adult at the time of filing the application, there were no diseases that could affect his will, testifies to the fact that that the registry office was supposed to register the marriage. "
    • In fact, today the absence of mutual voluntary consent is not a reason for refusing to register a marriage, but at the same time it is a prerequisite for entering into a marriage. Contradictions on the face. When submitting an application for registration of marriage, a flaw of will may be revealed in one of the persons applying for registration of marriage, if the applicant does not speak Russian. The participation of an interpreter in the registration of a civil status act is currently not provided for by law. It turns out that the issue of observance of human rights when registering a civil status act has not been settled. In order not to infringe on the rights of persons who do not speak Russian, it is possible to envisage the participation of an interpreter when accepting an application for marriage registration.
    • Registration of marriage is carried out by making a record of the act on the conclusion of marriage in the Book of Registration of Marriages. Such a record should include the following information:
    • surname (before and after marriage), first name, patronymic, date and place of birth, age, citizenship, nationality (at the request of the persons who have entered into marriage), place of residence of each of the persons who have entered into marriage;
    • information about the document confirming the termination of the previous marriage, or one of them, previously married;
    • details of the identity documents who have entered into a marriage;
    • the date of drawing up and the number of the record of the marriage certificate;
    • the name of the civil registry office, which made the state registration of marriage;
    • the series and number of the marriage certificate issued to the spouses.

    The fact of marriage and its state registration is certified by a marriage certificate. The same information is entered into it as in the record of the marriage certificate.

    Thus, it is worth noting that the current procedure for the conclusion of marriage is not perfect - with respect to the legal regulation of this institution. A gap in the legislation on compulsory medical examination is a serious omission of the legislator. In addition, the law provides for a refusal to register a civil status act, but there are absolutely no grounds for refusal to accept an application, and this can later become a reason for violating the rights and legitimate interests of citizens.

    Persons serving sentences in places of deprivation of liberty are characterized by a special legal status that differs from the legal status of a free citizen. The special legal position of convicts in places of deprivation of liberty is that they are deprived of many rights. The Criminal Executive Code, adopted on December 18, 1996, for the first time in the Russian Federation, made it possible to establish the scope and limits of legal regulation of the execution of punishment at the legislative level. The Criminal Executive Code establishes that a convicted person has the right to marry in isolation from society while serving a criminal sentence.

    Registration of marriage with convicted persons is carried out in compliance with the general conditions for the conclusion of marriage, provided for by the Family Code. The Family Code does not establish special conditions for marriage with convicted persons. Registration of marriage is carried out by the registry office in accordance with the requirements of the Family Code of the Russian Federation. However, there are some peculiarities of the procedure for concluding a marriage with a convicted person. These features lie in the fact that the administration of the penitentiary institution takes part in the organizational measures for the preparation and conduct of the marriage registration procedure. If the registry office receives an application from a citizen wishing to marry a convicted person, this body verifies the information specified in the application with the identity documents of the applicant and other documents, evidence of his signature and the correctness of the information provided in the application. After that, the specified application is certified by the signature of the relevant official and certified by the official seal of the registry office. After that, the documents are returned to the applicant. The applicant sends this statement to the administration of the institution executing the sentence in respect of the convicted person.

    Upon receipt of an application for concluding a marriage with a convicted person, the administration of the institution sends this application to the convicted person to fill out that part of the application that relates specifically to him. The convicted person, according to the documents in his personal file, introduces the missing information about his personality. The administration of the institution verifies the information specified in the application with the documents of the personal file of the convict. After making sure that this information is correct, the administration of the institution confirms his signature and the correctness of the specified information and sends an application for marriage to the registry office at the location of the institution for the execution of punishment.

    Sometimes, when filling out an application, the convicted person finds out that there is no exact information about his marital status in the personal file, or they are in the file, but incomplete or contradictory. In such cases, the administration of the penitentiary institution takes measures to obtain the necessary information.

    If the convicted person takes the initiative to marry, the administration of the penitentiary institution is obliged to provide him with a marriage application form. After the convicted person has filled in that part of the application that relates to him, the administration of the penitentiary institution verifies the information specified in the application with the documents of the personal file of the convict, confirms his signature and the correctness of the information indicated in the application, certifies with the signature of the head of the penitentiary institution and certifies it with a seal. After that, the administration of the penitentiary institution sends this application to the person with whom the convicted person wishes to marry. Simultaneously with the application completed by the convicted person, this person is informed of the name and address of the registry office, which is located at the location of the institution for the execution of punishment, where the marriage can be registered. The person who received this application and agrees to marry the convicted person fills out the application in the part that relates to him. After completing the application, the person submits this application to the registry office at the place of his residence for certification of the signature and the information specified in the application. The application drawn up in this way is sent to the registry office, about which the institution for the execution of the punishment informed him.

    The registry office, which is located at the location of the execution of the sentence, it is this institution that can accept an application for marriage, can set the time and date for the marriage and notify the future spouses in advance.

    The conclusion of marriage occurs after the expiry of the period given by the registry office for reflection, which begins from the moment the registry office accepts the application. You can refuse a probationary period of one month, but only if there are really good reasons for this.

    When a marriage is contracted, provided that one and the spouses are in places of deprivation of liberty or in a pre-trial detention center, the marriage in this case takes place at the location of the imprisoned spouse. The conclusion of marriage becomes possible after the head of the place of deprivation of liberty, in which one of the future spouses is located, gives his consent to the holding of the marriage ceremony. The introduction of this rule is conditioned by the interests of the investigation or the body for the execution of punishment. After a person is sentenced to imprisonment, the marriage is carried out according to the rules described above. A marriage with a person who is in places of deprivation of liberty or in a pre-trial detention center is carried out in a room that is specially designated for these purposes.

    Recently, there has been a tendency towards an increase in the number of persons serving sentences. It is worth noting that the longer the term of imprisonment to which a person is sentenced, the more often he enters into legal marriage. This seemingly incredible statistic can be explained quite simply: prisoners tie the knot not because they need a family, children, but because married and married prisoners are entitled to material benefits and long visits. Most of the fictitious marriages can be invalidated by a court decision.

    In such a situation, the spouse who married for the purpose of creating a family may demand from the fictitious spouse compensation for the harm that he inflicted on the bona fide spouse by his actions. Compensation can be both moral and material

    A conscientious spouse in such a case when his rights are violated during the conclusion of this marriage union has the right to demand compensation for harm, material and moral, on the basis of the rules provided for in civil law (

    Art. thirty RF IC).
    When examining statistical data on fictitious marriages, it should be noted that these marriages and divorces in order to solve problems of a domestic nature are considered by 50% of citizens to be completely admissible. This conclusion was made by the All-Russian Center for the Study of Public Opinion (VTsIOM) based on the results of a survey of Russians. Such marriages and divorces are considered unacceptable by 39% of the respondents, and 11% found it difficult to assess such a situation.
    The science of family law highlights the signs of a fictitious marriage, which indicate the absence of the intention to create a family:

    ) there is no personal communication between spouses, and in the future it can manifest itself in the absence of children, in sexual evasion, lack of care and moral support of the spouse, lack of interest in the fate of the spouse, in the absence of knowledge of facts from the life of the spouse, which are obvious;

    ) there is no cohabitation or has a short period or non-permanent cohabitation in the absence of valid reasons (the court, on the basis of the testimony of witnesses and the spouse, monitors the facts of the absence or presence of the defendant spouse in the plaintiff spouse's home, the absence or presence of his belongings in this dwelling);

    ) lack of funds and things, refusal of material support to the spouse (the court verifies the facts of the absence or presence of a common budget, common household, acquired property for joint use, not taking part of one of the spouses in the maintenance of the property of the other spouse);

    4) the presence of a purpose other than creating a family, either for one or both spouses upon marriage (as a rule, in this marriage, the purpose of obtaining the right to use the spouse's living quarters, Russian citizenship, the right to the spouse's property at his death or pursues other goals).

    A fictitious marriage is not concluded to create a family, to give birth to rights, freedoms, responsibilities and family relationships. This is a false deal, which is concluded in order to portray the appearance of legal outcomes, subject to the condition of complete absence of the desire to translate all of the above into reality.

    The comparative characteristics of a marriage of convenience and a fictitious marriage only receives a negative reaction from the public, and there is also a possibility of recognition of this marriage as invalid, because it is not concluded with the aim of creating a family, but in order to obtain a certain kind of benefit.

    A fictitious marriage, which was concluded with a person who is in prison or in a pre-trial detention center, is being studied more thoroughly than a marriage entered into under normal conditions by law-abiding citizens. The following aspects are taken into account:

    .The peculiarity of marriage;

    .Changing ideas about family and family life, values ​​and the role of the family in society;

    .Psychological portrait, detection of base needs and excessive emotional excitement, schadenfreude, vindictiveness, lack of empathy, the development of an inferiority complex;

    .The existing unsatisfied social indicators, including: lack of education, lack of work and profession, low wages, poor living conditions;

    .Encouragement from the prison or detention center administration for exemplary behavior, which is identified based on established rules of conduct, in order to help the prisoner return to normal life.

    .Mercantile interest in marriage;

    .Changing the main purpose of creating a family for prisoners who have lost their understanding of the family due to their imprisonment;

    .Severe restrictions imposed on communication and close relations of the spouses, while one of them is in prison, this also includes: letters, parcels, dates;

    .The relationship between the conclusion of a marriage with a prisoner and the appearance of common children in the family.

    Undoubtedly, family law proclaims the presumption of good faith and legality of the marriage union of spouses, but the situation is different when serving a criminal sentence. There is a distortion of the institution of the family performing important social functions, and this happens in cases of marriage fraud with abuse of their rights in this regard. There is a deformation of the ideas of members of civil society about the meaning and role of the family as a unit of society, which is the foundation for the development of society, state and law, and its educational function. Most modern legal systems recognize the institution of fictitious marriages, and a number of states qualify the actions of fictitious spouses or one of them as crimes. To date, legislative initiatives related to the inclusion in the current Criminal

    The Code of the Russian Federation of the new corpus delicti - marriage fraud, entailing serious penalties.
    Russian law allows Russian citizens to marry foreign citizens. There are no special procedures or obstacles for this in Russian legislation. Russian citizens living abroad who marry foreign citizens, the conclusion of the marriage is carried out in Russian consular offices.
    The reasons why citizens of one state move for permanent residence abroad, including as a result of marriage with foreign citizens, are varied. This includes expanding contacts with citizens of other states, the inability to find a worthy partner for life in their country, attracting foreign labor to the country's territory, and employing citizens abroad. For Russia, economic motives also play an important role, since it is no secret that the standard of living in the so-called developed countries is higher.

    Marriages with foreigners are increasingly being contracted and families are created, whose members have different citizenship or live in a different country. The conditions and form of concluding such marriages, their dissolution and other marriage and family issues are all very relevant nuances in our time.

    A peculiarity of the conclusion of such marriages is that foreign citizens must submit to the body registering the marriage a document stating that, according to their national law, there are no obstacles to marriage.

    In accordance with paragraph 1 of Art. 156 of the RF IC, the form and procedure for entering into a marriage on the territory of the Russian Federation are determined by the legislation of the Russian Federation. Based on this requirement, marriage with a foreign citizen must be concluded with a civil registry office. The following feature should also be noted: if one or both future spouses are foreign citizens, but marry on the territory of Russia, the marriage is registered according to Russian laws. The marriage is contracted in the personal presence of the persons entering into the marriage. Registration is carried out, as a rule, after a month from the date they submitted an application to the registry office. State registration of marriage with foreign citizens is carried out in accordance with the general procedure established for the registration of marriages of Russian citizens. Refusal to register a marriage with a foreign citizen who marries have the right to appeal to the court.

    In foreign countries, the form and procedure for concluding a marriage, as a general rule, are subject to the legislation of the country of marriage (Spain, Brazil, Romania, Poland, Portugal, Czech Republic, Switzerland, etc.). For example, in Austria, the form of marriage is subject to Austrian law if the marriage is in Austria, and to the law of citizenship of each of the future spouses if the marriage is outside the country.

    According to the treaties of Russia with other states on legal assistance, the form of marriage is usually subject to the legislation of the state on whose territory it is concluded. Such regulation of marriage with foreign citizens coincides with the rule of paragraph 1 of Art. 156 RF IC.

    The conditions for concluding a marriage specified in article 156 of the RF IC are determined for each of the persons entering into marriage by the legislation of the state of which the person is a citizen at the time of the marriage. The belonging of a person to the citizenship (nationality) of a particular state is determined at the time of the marriage. This makes it possible to resolve disputes over the family law applicable in such cases in the event of a change of citizenship by the spouses. At the same time, the requirements of Article 14 of the RF IC with respect to the circumstances that prevent marriage must be met. For example, when a Russian citizen enters into a marriage with a Belgian citizen, the requirements of Belgian legislation on the age of marriage, the need to consent to marriage, barriers to marriage established by Belgian law must be met.

    With regard to a Russian citizen marrying a Belgian, it is necessary to comply with the requirements of Articles 12-15 of the Family Code of the Russian Federation.

    The conclusion of marriages with foreigners under the age of 18 is permissible if it is allowed under the laws of the foreign state of which such a foreigner is a citizen. For example, when a Russian citizen and a Bulgarian citizen conclude a marriage in Russia, the conditions for the marriage for a Russian citizen will be determined according to Articles 12-15 of the RF IC, and for a Bulgarian citizen - according to the Family Code of Bulgaria. The norms of the Bulgarian Family Code determine the age of marriage and the circumstances that prevent marriage.

    Among the international treaties of Russia containing norms designed specifically to regulate marriage and family relations with a foreign element, the most significant is
    The CIS Convention, concluded in Minsk in 1993
    The Convention has been signed and ratified by all CIS member states. Its provisions were enshrined in the 2002 Chisinau Convention without any changes.
    Article 26 of the Minsk Convention, the conditions for entering into a marriage are determined for each of the future spouses by the legislation of the contracting party of which he is a citizen, and for stateless persons - by the legislation of the contracting party that is their permanent place of residence.
    Conflict rules on the conditions of marriage contain some treaties of Russia (formerly the USSR) on legal assistance and the Convention of the CIS countries of January 22, 1993. These documents prescribe to apply either the legislation of the state on the territory of which the marriage is concluded (agreements with Poland, Finland), or the legislation of the countries of citizenship of the future spouses, while observing the requirements of the legislation of the state in whose territory the marriage is concluded.
    As already mentioned, marriages between Russian citizens residing outside the territory of the Russian Federation are concluded in diplomatic missions or consular offices of the Russian Federation. Such marriages are registered in accordance with Russian law. When determining the form and conditions of marriage, the norms of Ch. Z RF IC, as well as provided for by Art. 13 of the RF IC, the norms of the laws of the constituent entities of the Federation on the age of marriage, if any.
    Family legislation is attributed by the Constitution of the Russian Federation to the joint jurisdiction of the federation and its subjects. Article 13 of the RF IC allows the regulation of certain conditions of marriage also by the legislation of the constituent entities of the Russian Federation. In particular, it is possible to establish the specifics of regulating the conditions of marriage with foreign citizens on the territory of the subjects of the federation.

    These are the features of entering into a marriage with those serving sentences in places of deprivation of liberty and with foreign citizens. It was also noted that the principles of legality, humanism, democracy, equality of convicts before the law are observed in the field of family relations. Russia, as the legal successor of the USSR, strictly complies in its legislation with all adopted international acts and regulations regarding the legislation on marriage with foreign citizens on the territory of Russia, as well as Russian citizens living abroad. At the same time, the current Family

    Codex compared to previous

    The Code provided for references allowing the application of not only Russian, but also foreign law, made a transition from unilateral to bilateral conflict rules, eliminated to a large extent the possibility of “lame” marriages, in some cases it is allowed to choose the applicable law by the parties themselves.

    CONCLUSION

    The results of the study were the following conclusions:

    The family is a dynamic social formation. Changes of various nature and content take place in it, which are reflected in the structure and nature of specific intrafamily communication. It is worth noting that the position of a family member changes all the time throughout the existence of family relationships. Changes in marriage and family life are closely interrelated, explained both by the internal logic of the development of the family and the personality of its members, and by changes in society, the subsystem of which is the family.

    An analysis of modern legislation on the regulation of marriage relationships has shown that the regulatory and legal framework in this area is already sufficiently developed in Russia. However, the solution of some issues is still fraught with certain difficulties. The legislator, regulating the age of marriage, pursued the goal of specifying one of the conditions for marriage for various categories of people. At the same time, the legislator also pursued the goal of directing in a certain way the individual behavior of minors when they decide the issue of marriage. For a long time, the model of culture prevailed in Russia, suggesting that effective relations in the family are preferable to social relations, that morality dominates the law. The family remains the basic unit of Russian society. An indicator of evolution - both psychological and social - will be the situation when young people in Russia begin to understand and accept marital solidarity and loyalty, the value of which they will feel only in the family.

    It is worth noting that the current procedure for the conclusion of marriage is not perfect - with respect to the legal regulation of this institution. A gap in the legislation on compulsory medical examination is a serious omission of the legislator. In addition, the law provides for a refusal to register a civil status act, but there are absolutely no grounds for refusing to accept an application, and this may subsequently lead to a violation of the rights and legitimate interests of citizens. It was also noted that the principles of legality, humanism, democracy, equality of convicts before the law are observed in the field of family relations.

    Russia strictly complies in its legislation with all adopted international acts and regulations regarding the legislation on marriage with foreign citizens on the territory of Russia, as well as Russian citizens living abroad. At the same time, the current Family Code, in comparison with the previous code, provided for references that allow the application of not only Russian, but also foreign law, a transition from unilateral to bilateral conflict rules was carried out, the possibility of "lame" marriages was largely eliminated, in some cases a choice is allowed applicable law by the parties themselves.

    LIST OF USED SOURCES

    Normative legal acts

    1.World Declaration on the Survival, Protection and Development of Children (Adopted in New York on September 30, 1990).

    2.Universal Declaration of Human Rights (adopted by the UN General Assembly on December 10, 1948)<#"justify">4.The Constitution of the Russian Federation of 12.12.1993 (as amended on 21.03.2014) Rossiyskaya Gazeta.- 1993. No. 197.

    5.Decree of the President of the Russian Federation of May 14, 1996 N 712 (as amended on October 5, 2002) "On the Main Directions of the State Family Policy"<#"justify">8.Civil Procedure Code of the Russian Federation of November 14, 2002 N 138-FZ (as amended on 12/30/2015) (as amended and supplemented, entered into force on 01/01/2016) // Rossiyskaya Gazeta, N 220, November 20, 2002.

    9. Tax Code of the Russian Federation (part one) of July 31, 1998 N 146-FZ (as amended on February 15, 2016)<#"justify">Special literature

    .Alexandrova A.Yu. The concept of marriage in Russian jurisprudence of the XIX - early XX century / A.Yu. Aleksandrova // History of State and Law.- 2014.- No. 11.

    .Albikov I.R. Some legal aspects of the essence of marriage / I.R. Albikov // Family and housing law.- 2012.- No. 2.- P. 26 - 28.

    .Albikov I.R. Actual marriage and family relations between men and women: theory and practice of law enforcement: author. dis. ... Cand. jurid. sciences. M., 2014.

    .Bayborosha N.S. Legal regulation of marriage in international family law: problems and realities // Actual problems of international public and international private law: collection of articles. scientific. tr. Issue 1 / Belarusian. state un-t; otv. ed. E.V. Babkina, Yu.A. Lepeshkov. Minsk, 2011.

    .Bespalov Yu. F., Gordeyuk DV Commentary on judicial practice in family matters. M., 2011.

    .Vybornova M.M. The actual marriage of a man and a woman in civil and family law and doctrine: Author's abstract. dis. ... Cand. jurid. Sciences.- M., 2011.- 29p.

    .Vybornova M.M. The actual marriage of a man and a woman in civil and family law and doctrine: author. dis. ... Cand. jurid. sciences. M., 2011.

    .Gnatyuk Yu.V. Velesov book / Yu.V. Gnatyuk, V.S. Gnatyuk.- M .: Amrita-Rus, 2006.- 266p.

    .Civil and commercial law of foreign states: Textbook / Otv. ed. E.A. Vasiliev, A.S. Komarov. - T. II. M .: International relations, 2006.- 560s.

    .Gradskova Yu. New ideology of the family and its features in Russia // ONS: Social sciences and modernity. M., 2000. No. 2.

    .Karlson A. Through the Decades: The Troubled Path of the Family, 1945 - 1990: And further, further ... // Bulletin of Moscow University. Series 18. Sociology and Political Science. M., 2010. No. 3.

    Since ancient times, the family has occupied the most important place in the life of every person, because it is here that the foundations of morality, tolerance, spirituality are laid, and the formation of the personality takes place. The word "marriage" has an ancient Slavic origin and literally means "borochiti" (that is, to select the best).

    The well-known Russian jurist A.I. Zagorovsky at the beginning of the twentieth century defined marriage as an institution of a special kind, given the complexity of this legal category. The definition of G.F. Shershenevich, according to which 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.

    Sharing in general the approach of G.F. Shershenevich, O.S. Ioffe considers it necessary, when defining marriage, to indicate its purpose - the creation of a family, the birth and upbringing of children. A.M. Nechaeva believes that considering the concept of "marriage" one should point out the legal consequences that this union entails.

    Note that over time, the nature of marriage has become even more complicated. A large number of "civil" marriages have arisen (further we will prove that such a name for these relations is legally incorrect), in some countries it is allowed to conclude same-sex unions, etc.

    To date, there is no concept of "marriage" in the legislation and, taking into account the above, doubts arise about the need to consolidate it. Each person has his own idea of ​​marriage as a union of two people, but the common thing is, firstly, this is a voluntary union of a man and a woman, and secondly, this union is formalized by registering a marriage. Thus, the legislator does not fix the concept of "marriage", but fixes the conditions under which this union of a man and a woman will have legal significance.

    Let's turn to the procedure for contracting a marriage. In the doctrine of family law, relations on registration of acts of civil status are referred to as procedural. Federal Law of November 15, 1997 N 143-FZ "On acts of civil status" (hereinafter - FZ "On acts of civil status") provides for the following stages of this procedure:

    1. submission and acceptance of the application;

    2. drawing up an act record;

    3. issuance of a certificate of registration of a civil status act.

    From the point of view of the marriage procedure, it is the first stage - the filing of an application - that seems to be the most important. First, at the time of filing the application, mutual voluntary consent to marriage is confirmed. Secondly, the absence of circumstances that prevent marriage is established (close relationship, incapacity of one of the potential spouses, one of the spouses is already in an officially registered union). Thirdly, the information about the persons entering into marriage, necessary for the preparation of the act record, is provided. Finally, the date and time of the civil registration is set.

    Analyzing this stage of the marriage registration procedure, we note its imperfection. Thus, the Federal Law "On Acts of Civil Status" provides for a refusal to register a marriage, but does not provide for circumstances for refusal to accept an application, which may cause a violation of the rights and legitimate interests of persons entering into marriage.

    In accordance with paragraph 9 of Art. 27 of the Federal Law "On acts of civil status", if there is evidence that confirms the circumstances that prevent marriage, then the state registration of marriage is allowed to refuse.

    There is a certain time interval between the stage of filing an application and drawing up a deed of registration of marriage, which can be either shortened or extended. In our opinion, it is advisable to provide in the law at the stage of filing an application for registration of marriage cases for refusal to accept this application.

    An example is given in the review of judicial practice in cases from family legal relations, which perfectly proves the need for the above change. "N. applied to the court with a complaint against the actions of the registry office, which refused to register the marriage due to the fact that the person entering the marriage did not voluntarily submit an application for marriage registration. The court considered that, despite the fact that V. indicated that the parents of minor N. forced him to marry, the fact that he was an adult at the time of filing the application, there were no diseases that could affect his will, testifies that that the registry office had to register the marriage. "

    That is, on the one hand, voluntary consent is a necessary condition for entering into a marriage, on the other hand, its absence is not a reason for refusing to register a marriage. This contradiction must be eliminated.

    In addition, when submitting an application for registration of marriage, one of the applicants may have a defect of will in the form of a lack of command of the Russian language. Neither the Family Code (hereinafter - the RF IC) nor the Federal Law "On Acts of Civil Status" regulate the issue of the participation of an interpreter in the registration of acts of civil status. It turns out that the rights of persons who do not speak Russian are being violated. In our opinion, it is necessary to provide for the participation of an interpreter when submitting an application for registration of marriage, which will make it possible to accurately establish mutual voluntary consent to marriage.

    Another serious omission is the absence of the results of a medical examination in the list of documents for registering a marriage. It turns out that people getting married can hide the presence of mental, genetic and other serious diseases. In our opinion, the absence of this requirement is a serious gap in the legislation that needs to be addressed. First of all, this could give the right to choose to future spouses, perhaps if they knew in advance about the diseases or predisposition of their potential spouse to them, they would have carefully considered their decision to marry. By getting married, a person has the right to know about the health of his spouse, which, in our opinion, will reduce both the number of family conflicts and the number of divorces.

    Next, we turn to the question of the timing of marriage registration. According to Art. 10 of the RF IC, marriage is concluded in the registry office in the personal presence of the persons entering into marriage, after a month from the date they submitted an application to the registry office. At the same time, if there are valid reasons, as we have already indicated, this period can be either extended or reduced.

    Art. 11 of the RF IC contains an open list of circumstances for reducing or increasing the time for registration of a marriage. According to S.A. Nikoghosyan, which we share, the presence of an open list allows the registry office at its discretion and not always justified to determine the presence or absence of circumstances that are not reflected by the legislator.

    To avoid such a situation, it is advisable to supplement par. 3 p. 1 of Art. 11 of the RF IC and state it as follows: “In the presence of special circumstances (pregnancy, childbirth, conscription, imminent relocation of one of the spouses for permanent residence to another city, country, immediate threat to the life of one of the parties, as well as in cases where the persons entering into marriage wish to combine the registration of marriage with its conclusion according to a religious ceremony), the marriage may be concluded on the day of filing the application. "

    We note one more circumstance that is important for the timing of marriage registration, in our opinion, it could also be included in the above list, however, we believe that this very circumstance can become a subject of discussion. Despite the fact that the Russian Federation is a secular state, many citizens follow the rules dictated by their religion. As you know, it is forbidden to marry during the period of fasting or uraza. Such situations are quite common in practice and most often they are resolved in favor of persons entering into marriage, as respect for their religious beliefs. So, in the central registry office of Kazan, persons wishing to get married, asked to shorten the period from the date of submission of the application to the day of registration of the marriage, justifying their request by the fact that Orthodox Christians begin fasting on the date appointed by the registry office. Employees of the registry office went to meet the spouses, registering their marriage a week and a half from the day they submitted their application.

    In general, the effectiveness of Art. 11 RF IC. The imperative procedure for the conclusion of marriage enshrined in it makes it possible to reveal the legality of the marriage union, and the duty of the personal presence of persons entering into marriage enables a man and a woman to personally express their voluntary and conscious intention to start a family.

    In conclusion, I would like to say a few words about the so-called de facto marriage, in which the relationship between a man and a woman is not legally formalized. In recent years, this issue has become increasingly relevant, which is directly proportional to cases of free cohabitation without obligations.

    In society, this form of relationship is called "civil marriage", which is incorrect from the point of view of terminology. A civil marriage is a legal marriage, that is, a legally registered marriage, which fixes a civil status record. That is, in this case, civil marriage is the antonym of church marriage, but in no case is it synonymous with cohabitation.

    The question arises: is it worth making changes to the legislation due to the fact that more and more people choose this form of relationship. After all, children are born in cohabitation, joint property appears, inheritance issues arise, and so on. We are of the opinion that it is inappropriate to do this: recognition of any rights or obligations for cohabitants negates the value of legal marriage as a social institution.

    1 Shershenevich G.F. Textbook of Russian civil law: in 2 volumes.Vol. 2. - M .: Statut, 2005. S. 28.

    2 Ioffe O.S. Soviet civil law. - M .: Jurid. lit., 1967.S. 130.

    3 Nechaeva A.M. Family law: a course of lectures. - M .: Jurist, 1998.S. 22.

    4 Federal Law of the Russian Federation of 15.11.1997 N 143-FZ (as amended on 03.07.2016) "On acts of civil status" // URL. http://www.consultant.ru/document/cons_doc_LAW_16758/ (date of treatment 04.24.2017).

    5 Federal Law of the Russian Federation of 15.11.1997 N 143-FZ (as amended on 03.07.2016) "On acts of civil status" // URL. http://www.consultant.ru/document/cons_doc_LAW_16758/ (date of treatment 04.24.2017).

    6 Bespalov Yu. F., Gordeyuk DV Commentary on judicial practice in family matters. - M .: Os-89, 2006 .-- P. 16.

    7 Family Code of the Russian Federation of December 29, 1995 N 223-FZ (as amended on March 28, 2017) // URL. http://www.consultant.ru/document/cons_doc_LAW_8982/ (date of treatment 04.22.2017).

    8 Nikogosyan S.A. Legal regulation of the conclusion and termination of marriage with the participation of foreign citizens: author. dis. ... Cand. jurid. Sciences: - Kazan, 2014.S. 7.

    9 Yakovleva E.A. Conclusion of marriage as the basis for the emergence of personal non-property rights of spouses // Actual problems of economics and law. 2015. No. 2.P. 217.

    References and sources

    1. Family Code of the Russian Federation of December 29, 1995 N 223-FZ (as amended on March 28, 2017) // URL. http://www.consultant.ru/document/cons_doc_LAW_8982/ (date of treatment 04.22.2017).

    2. Federal Law of the Russian Federation of 15.11.1997 N 143-FZ (as amended on 03.07.2016) "On acts of civil status" // URL. http://www.consultant.ru/document/cons_doc_LAW_16758/ (date of treatment 04.24.2017).

    3. Bespalov Yu. F., Gordeyuk DV Commentary on judicial practice in family matters. - M .: Os-89, 2006 .-- 128 p.

    4. Ioffe O.S. Soviet civil law. - M .: Jurid. lit., 1967.494 p.

    5. Nechaeva A.M. Family law: a course of lectures. - M .: Jurist, 1998.332 p.

    6. Nikogosyan S.A. Legal regulation of the conclusion and termination of marriage with the participation of foreign citizens: author. dis. ... Cand. jurid. Sciences: - Kazan, 2014.28 p.

    7. Shershenevich G.F. Textbook of Russian civil law: in 2 volumes.Vol. 2. - M .: Statut, 2005.462 p.

    8. Yakovleva E.A. Conclusion of marriage as the basis for the emergence of personal non-property rights of spouses // Actual problems of economics and law. 2015. No. 2. P. 214–220.