Family law includes rules governing a particular type of relationship between men and women. In particular, we are talking about official unions created with the aim of conducting a joint economy, giving birth and raising children. This is a common concept of marriage.
Under family law, when these unions arise, certain conditions must be met. In addition, the legislation provides a number of features that expand the well-known definition. Let us further consider what marriage is by modern standards.
General information
How does the law interpret the concept of marriage? According to family law, it is called a free, equal, presumably life-long union of a man and a woman. It arises in compliance with the conditions and order defined by law. When registering this union, spouses have certain mutual property and personal obligations and rights. Such a definition was proposed by the Soviet scientist G.K. Matveev and was based on the fact that the birth and upbringing of their children should be one of the goals of uniting a woman and a man in a union.
Legislative development
The concept of marriage according to family law, which existed in pre-revolutionary science, was also revealed through an indication of the union of a woman and a man. Moreover, cohabitation was the main goal. At the same time, the norms noted that the union arose by mutual agreement in the prescribed form.
The concept of marriage according to family law, which was in force in the Soviet era, was interpreted as a fundamentally new form of relations between a man and a woman in a socialist society, which was different from that existing abroad.
Current standards
Currently, researchers note that the concept and signs of marriage, formulated in the Soviet era, were based mainly on the mutual inclination of people (love). In this regard, in the monographs of that period, the union of a woman and a man was considered as a relationship with cohabitation, based on the principles of friendship, cooperation, love.
In 1995, 256 articles of the Civil Code were introduced. From that moment, the institution of marriage reached a new level of its development. A significant strengthening of the contractual basis for the conclusion of unions is noted in the new UK. This code was introduced in 1995. Thanks to it, unconventional, completely new for Russian science, views on the institution of marriage appear on the new foundation. These approaches are fundamentally different from those that existed in Soviet times.
Definition
Antokolskaya is one of the modern authors who have indicated the presence of the civil law nature of marriage. She convincingly argued that the union agreement was not inherently different from a civil agreement in so far as it was governed by norms and had certain consequences.
In addition to Antokolskaya, many more authors spoke about what marriage is. Moreover, various approaches to its interpretation took place not only in Russia but also abroad.
An analysis of the views on the problem allows us to derive its definition. Marriage is the most important legal fact, as a result of which family legal relations arise. It acts as a voluntary and free union of a woman’s man, concluded in the prescribed manner, when fulfilling the requirements of the law and aimed at creating a family.
Terms
There is a specific procedure for marriage. Family law formulates a number of conditions under which the union of a man and a woman is formalized. They are presented in article 12 of the UK. The list of conditions is considered exhaustive. These include:
- Voluntary consent.
- Reaching a set age.
Let's consider them separately.
Voluntary consent
For the formalization of relations, marriage is registered. Family law as its first condition establishes the voluntary consent of both future spouses. This means that the will of the entity entering into a relationship should not be formed under the unlawful influence of other persons on it.
Moreover, the law establishes the requirement for a personal expression of desire of both men and women. Accordingly, the norms prohibit marriage by proxy or in absentia. Expression of will must be conscious. People must be aware of the actions they take. Any violence, whether mental or physical, that paralyzes the will of a person who does not want to enter into relations, is immoral in nature, contradicts the nature of marriage and does not comply with the provisions of article 19 of the Constitution, which establishes equal freedoms and rights for men and women and equal opportunities for their implementation.
Coercion can not come from either side of the relationship, or from their relatives, friends and other persons.
Statement
He expresses the voluntary mutual consent of the woman and the man to enter into marriage. The application is made in writing and submitted to the registry office. If any of the future spouses does not have the opportunity to personally participate in the drafting of the joint document, then Art. 26 Federal Law No. 143. In accordance with the norm, entities are entitled to submit separate applications. In addition, voluntary consent is expressed verbally by citizens in the process of state registration and is certified by their signatures.
Reaching the right age
In all countries, the minimum age that marriages should be is approximately the same. In Bulgaria, for example, for a woman and a man he is the same - 18 years old. In Hungary and Japan, slightly different numbers. Here, the minimum age for a man is 18 years old, and for a woman is 16. In Poland, 21 and 18, respectively. In Portugal, since 1978, the minimum threshold is 16 years. At the same time, people who have achieved it, receive the right to marry only with the consent of the parents. If these persons are 21 years old, then they draw up a relationship on their own.
In the RF IC, the marriage age is the same for men and women. He is 18 years old. Moreover, it coincides with the onset of civil legal capacity in full, in accordance with Art. 12 GK. The general rule is that an entity wishing to formalize a relationship must reach the proper age at the time of registration, and not at the date of application.
Exceptions
In Art. 13 p. 2 SK provides for the possibility of reducing the age of marriage. There must be good reasons for this. If available, authorized local authorities reduce the age of marriage to 16 years.
The law does not clearly define the list of good reasons. In practice, as a rule, they are a minor’s pregnancy, the upcoming draft in the army or a long trip of the future spouse, as well as the birth of a child.
The decision to reduce the age of marriage is taken at the address of the residence of entities wishing to form their union. The document indicates the number of years (months) by which it is reduced, the name of citizens. To make this decision, entities submit a written application. The law does not establish the requirement to obtain parental consent.
Regional authorities are granted the right, in exceptional cases, to allow marriage up to 16 years. The conditions and procedure for its execution should have been determined by the legislation of the subject of the Russian Federation. From the moment of registration, a person to whom the age of marriage has been reduced by the established rules becomes fully capable. Even in the event of termination of the union, it remains so further.
The exception is the recognition of marriage invalid. Family law and civil law allow deprivation of minor legal capacity.
Obstacles to formalizing relationships
They are determined by the 14th article of the RF IC. The legal characteristics of marriage in family law are determined taking into account the specifics of the law and the conditions of our time. However, there are a number of circumstances in the presence of which the official registration of the union is unacceptable and impossible. Their list is considered exhaustive. The circumstances that impede the formation of relations include:
- The presence of marriage at least one of the persons. This circumstance indicates the state protection of monogamy. When registering a marriage with a subject who is already in a family relationship with another person, a situation of bigamy / bigamy occurs. This is contrary to applicable law. The principle of monogamy is enshrined in the norms of most countries of the world. An exception are states in which the local religion, which allows polygamy, has a special influence on gender relations .
- The presence of kinship between spouses. In particular, we are talking about close in a straight descending and ascending lines - parents and children, grandchildren and grandparents, half and full sisters / brothers. The specified restriction fixes the formed influence of biomedical prohibitions and religious doctrine. It has been established that marital relations between close relatives increase the risk of various pathologies, hereditary, in particular, and reduce the likelihood of healthy offspring. In addition, historically there have been stable moral and ethical ideas about the inadmissibility of marital relations between relatives.
- Establishment of adoption. This prohibition is also based on moral and ethical principles. The relationship between the adoptive parent and the adopted child is equated with the relatives under Art. 137 SK.
- The presence of disability in connection with a mental disorder established by the court, at least one of the subjects. Her recognition is carried out in accordance with Art. 29 Civil Code. According to the norm, a citizen with a mental disorder, as a result of which cannot be aware of his behavior and, accordingly, lead him, can receive the status of a legally incompetent person in the manner prescribed by the Code of Civil Procedure.
Prevention of polygamy
In order to avoid marriage with an entity already in marital relations with another person, when submitting an application to the civil registry office, citizens must indicate whether they were in such a relationship or not. If the previous bonds were terminated, an appropriate document is presented to confirm this fact. This may be a certificate of divorce or death of a spouse, as well as a court decision that has entered into force invalidating the registration.
Features of disability in connection with mental pathology
A subject suffering from such a disease is not able to direct his behavior, to be aware of his actions. Accordingly, he cannot express voluntary consent to enter into marital relations.
The prohibition of marriage incapable with mental pathologies is determined by the concern of society and the state to create a healthy, normal family. In addition, some diseases of this nature can be inherited. This, in turn, jeopardizes the appearance of healthy offspring.
Disability may appear after official registration. In this case, marital relations, drawn up during the period when the citizen did not suffer from pathology, will be considered relevant.
Rights of registry offices
Mental pathology, expressed in one form or another, as well as other diseases that are not grounds for recognizing a person as legally incompetent, do not act as obstacles to registering a marriage. In such cases, the formalization of marital relations may become impossible only due to the lack of a conscious will.
If the registry office has serious doubts about the mental health of the applicant, he has the right to postpone marriage for a month. During this period, interested parties, as well as representatives of medical institutions, decide on the advisability of submitting a lawsuit to classify a citizen as incompetent.
Types of marriage
Family law currently allows several options for citizens to enter into marital relations. The formalization of the union has been described above. Registration of marriage has certain consequences for the parties. In particular, property obligations arise in relation to each other. Accordingly, upon termination of the marriage, a division of material assets acquired jointly is carried out, the place of residence of the children is determined, alimony is assigned.
Recently, civil marriage has spread. In Russia, many people are in no hurry to formalize relations. There are many reasons for this. As for duties, they are not regulated by the UK. But in general, such relations are regulated by the Civil Code.
There is another category of unions - fictitious marriage. Family law does not give an exact definition of it. As a rule, such relations are called unions created without love and not for the birth and upbringing of children, but out of selfish motives. Moreover, they can be present both on one side only and on both parties to the transaction. The legislation does not establish any liability for such marriages, unless they are registered for the purpose of subsequently committing unlawful acts.