The concept of marriage by family law. Types of marriage. Legal features of marriage in family law

Family law includes the rules governing a special kind of relationship between men and women. In particular, we are talking about official unions established for the purpose of joint farming, the birth and upbringing of children. This is the generally accepted concept of marriage.

Under the family law, when these unions arise, certain conditions must be met. In addition, the legislation provides for a number of features that extend the well-known definition. Let's consider further, that such marriage according to modern norms.

General information

How does the law interpret the notion of marriage? According to the family law, they are called a free, equal, supposedly lifelong union of a man and a woman. It arises with observance of conditions and the order, determined by the legislation. When registering this union, the spouses have certain mutual property and personal obligations and rights. Such a definition was proposed by the Soviet scientist GK Matveev and was based on the fact that the birth and upbringing of their children should be one of the aims of the union of women and men in an alliance.

Development of legislation

The concept of marriage on family law, which existed in prerevolutionary science, was also revealed through an indication of the union of a woman and a man. At the same time, cohabitation was the main goal. At the same time, the norms noted that the union arose by mutual agreement in the established form.

The concept of marriage under the family law that operated during the Soviet era was interpreted as a fundamentally new form of relations between a man and a woman in a socialist society, which differed from that existing abroad.

Modern norms

Currently, researchers note that the concept and signs of marriage, formulated in the Soviet era, were based primarily on the mutual propensity of people (love). In this connection, in the monographs of that period, the union of a woman and a man was viewed as a relationship when cohabiting together, based on the principles of friendship, cooperation, love.

In 1995, 256 articles of the Civil Code were introduced. Since that moment, the institution of marriage has reached a new level of its development. Significant strengthening of the contractual basis for the conclusion of alliances is also noted in the new SC. This code was introduced in 1995. Thanks to him on a new foundation there are unconventional, completely new for the domestic science views on the institution of marriage. These approaches are fundamentally different from those that existed in Soviet times.

Definition

Antokolskaya is one of the modern authors who pointed to the existence of a civil-law nature of marriage. She convincingly argued that the agreement on the union in its essence does not differ from the civil contract in the part that is regulated by the rules and generates certain consequences.

In addition to Antokolsky, many authors have also spoken out about what marriage is. At the same time, various approaches to its interpretation took place not only in Russia, but also abroad.

An analysis of the views on the problem makes it possible to derive its definition. Marriage is the most important legal fact, which causes family and legal ties. He acts as a voluntary and free union of a woman of a man, imprisoned in accordance with the established procedure, in compliance with the requirements of legislation and aimed at creating a family.

Conditions

There is a certain order of marriage. Family law sets forth a number of conditions under which the union of a man and a woman is formalized. They are presented in Article 12 of the IC. The list of conditions is considered exhaustive. They include:

1. Voluntary consent.
2. Reaching the established age.

Let's consider them separately.

Voluntary consent

For the formal registration of relations, marriage registration is carried out . Family law as the first of its terms establishes the voluntary consent of both future spouses. This means that the will of the subject entering into relations should not be formed under the illegal influence of other persons on it.

In this case, the law establishes the requirement for the personal expression of the desire of both men and women. Accordingly, the norms prohibit marriage by proxy or in absentia. The expression of will must be realized. People should be aware of the actions they are taking. Any violence, both mental and physical, paralyzing the will of a subject who does not want to enter into a relationship is immoral in nature, contradicts the nature of marriage and does not comply with the provisions of Article 19 of the Constitution establishing equal freedoms and rights for men and women and the same opportunities For their implementation.

Coercion can not come from either side of the relationship, nor from their relatives, acquaintances or other persons.

Statement

It expresses the voluntary mutual consent of a woman and a man to marry. 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 preparation of a joint document, Art. 26 of Federal Law No. 143. In accordance with the norm, the subjects are entitled to file separate applications. In addition, voluntary consent is expressed by citizens verbally in the process of state registration and is certified by their signatures.

Reaching the right age

In all countries, there is approximately the same minimum age, which should be the subjects marrying. In Bulgaria, for example, for women and men it is the same - 18 years. In Hungary and Japan, slightly different figures. Here the minimum age for a man is 18 years, and for a woman - 16. In Poland - 21 and 18, respectively. In Portugal, since 1978, the minimum threshold is 16 years. In this case, people who have reached it, get the right to marry only with the consent of their parents. If these people turned 21, they formalize the relationship independently.

The marriage age in the Russian Federation is the same for men and women. He is 18 years old. At the same time, it coincides with the onset of civil capacity in full, in accordance with Art. 12 of the Civil Code. As a general rule, the entity that wishes to formalize the relationship must reach the appropriate age at the time of registration, and not on the date of filing the application.

Exceptions

In Art. 13 cl. 2 SC provides for the possibility of reducing the marriageable age. For this there must be valid reasons. If they are available, authorized local authorities reduce the marriage age to 16 years.

In the legislation there is no clear definition of the list of valid reasons. In practice, as a rule, they are the pregnancy of a minor, the forthcoming conscription into the ranks of the army or the long-term business trip of the future spouse, as well as the birth of a child.

The decision to reduce the marriageable age is taken at the address of the residents who wish to formalize their union. The document indicates the number of years (months) for which it decreases, the full name of citizens. To make this decision, the subjects submit a written application. The legislation does not specify the requirement to obtain parental consent.

Regional authorities are given the right in exceptional cases to admit marriage to 16 years. The terms and procedure for its execution should be determined by the legislation of the subject of the Russian Federation. From the moment of registration, a person who has been reduced by marriage according to established rules becomes fully legally competent. Even in the event of the dissolution of the union, it remains so on.

The exception is the recognition of marriage as invalid. Family law and civil law allow for the deprivation of minor legal capacity.

Obstacles to formalize relations

They are determined by Article 14 of the Criminal Code of the Russian Federation. Legal signs of marriage in the family law are determined taking into account the peculiarities of the legislation and the conditions of the present. At the same time, 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 prevent the registration of relations include:

1. The presence of a marriage at least one of the persons. This circumstance points to the state protection of monogamy. When registering a marriage with a subject who already has a family relationship with another person, there is a situation of duality / bigamy. This is contrary to current legislation. The principle of monogamy is fixed by the norms of most countries of the world. The exception is the state, in which the local religion, which allows polygamy, exerts a special influence on the relations of the sexes .
2. The presence of family ties between the married. In particular, the speech is about close in descending and ascending lines - parents and children, grandchildren and grandmothers / grandfathers, incomplete and full-grown sisters / brothers. The specified restriction fixes the formed influence of biomedical prohibitions and religious doctrine. It is established that the marriage relations between close relatives increase the risk of various pathologies, hereditary, in particular, and reduce the likelihood of the appearance of healthy offspring. In addition, historically there are stable moral and ethical views on the inadmissibility of marital relations between relatives.
3. Establishment of adoption. This prohibition is also based on moral and ethical principles. The relationship between the adopter and the adopted child is equated with the relatives under Art. 137 SK.
4. The presence of incapacity due to a mental disorder established by the court, at least one of the subjects. Its recognition is carried out in accordance with Art. 29 of the Civil Code. According to the norm, a citizen who has a mental disorder, due to which he can not realize his behavior and, consequently, manage it, can get the status of incompetent in the manner prescribed by the CCP.

Avoid polygamy

In order to avoid marriage with a subject already married to another person, when applying to the registry office, citizens must indicate whether they were in such relations or not. If the previous bonds were terminated, an appropriate document is presented to confirm this fact. As it may be evidence of divorce or death of the spouse, and also entered into force a court decision to recognize the registration as invalid.

Features of incapacity in connection with mental pathology

The subject suffering from such a disease is not in a position to lead his behavior, to realize his actions. Accordingly, he can not express voluntary consent to enter into marital relations.

The ban on marriage incapacitated with mental pathologies is caused 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, threatens the appearance of healthy offspring.

Incapacity may appear after official registration. In this case, marital relations, drawn up in a period when the citizen did not suffer from pathology, will be considered to be in compliance with the norms.

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 the registration of marriage. In such cases, official registration of marital relations can become impossible only because the person has no conscious will.

If the registrar has serious doubts about the mental health of the applicant, he has the right to postpone the marriage for a month. During this period, interested persons, as well as representatives of medical institutions, decide on the expediency of submitting a suit to the court regarding the inclusion of a citizen in the category of incompetent persons.

Types of marriage

Family law currently allows several options for citizens to enter into marital relations. Above was described the official registration of the union. Registration of marriage provides certain consequences for the parties. In particular, property obligations arise in relation to each other. Accordingly, when the marriage is terminated, the division of material values, acquired together, is carried out, the place of residence of children is determined, and alimony is assigned.

Recently, civil marriage has spread. In Russia, many people are not in a hurry to formally formalize relations. This is due to many reasons. 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 its exact definition. As a rule, such relationships are called unions created without love and not for the birth and upbringing of children, but for selfish motives. At the same time, they can be present both from one side only, and from both parties to the transaction. Legislation does not establish any liability for such marriages, unless they are registered with a view to committing subsequently illegal actions.