Does family law govern actual marital relations? actual marital relationship. Cohabitation was proposed to equate to marriage. Restrictions and prohibitions for registration

Legal Consequences of De facto Marriage

Marriage is the most important legal fact that causes the emergence of family legal ties and is a free and voluntary union of a man and a woman, concluded in the prescribed manner in compliance with the requirements of the law, aimed at creating a family. In each case, marriage is a specific legal relationship that gives rise to certain subjective rights and obligations of a personal and property nature for the spouses.

It seems more accurate to consider cohabitation as a broader concept, covering both formalized in the prescribed manner (i.e. marriage), and not formalized (extramarital cohabitation), since etymologically the word “cohabitation” does not carry a negative meaning, but means “ live together with someone”, “cohabit, live together or at the same time, live together in one monastery, be a husband, wife, live as a couple, as a husband and wife”. Consequently, both spouses who have legalized their union and persons living together like a husband and wife can be cohabitants. In the first case, the cohabitants are in a legal, state-recognized marriage union, cohabitation, and in the second - in extramarital cohabitation. The former are called spouses, husband and wife, and are carriers of a certain family legal status, and the latter, due to the non-recognition of their union as marriage, can be called “actual cohabitants”, “extramarital cohabitants” or even “simple cohabitants”.

Prior to the October Revolution of 1917, marriage was considered to be a union formalized according to the religious canons of the confessions to which the persons entering into marriage belonged. The only exceptions were the marriages of schismatics, which received legal recognition after their registration with the police. These marriages were already at that time nothing more than "civil marriages", that is, marriages registered in state bodies, and not in the church.

With the adoption of the decrees of the Central Executive Committee and the Council of People's Commissars of the RSFSR "On civil marriage, on children and on the maintenance of books of acts of civil status ”of December 18, 1917 and“ On the dissolution of marriage ”of December 19, 1917, civil marriage became the only form of marriage recognized in our country. Its introduction reflected the new state ideology and meant the practical implementation of one of its fundamental principles - the separation of church and state. Marriages registered in the departments of records of marriages and births at the city (district, county or volost zemstvo) government received legal force. The first Russian code - KZAGS (Code of laws on acts of civil status, marriage, family and guardian law of the RSFSR of 1918) also determined: this section. A marriage performed according to religious rites and with the assistance of clerics does not give rise to any rights and obligations for the persons who have entered into it, if it is not registered in the established order” (Article 52). The new state ideology was focused on the destruction and gradual withering away of the institution of marriage and the family, which was considered "the cell and pillar of the old system."

Under the conditions of Russia, a direct transition from a church marriage to a marriage “free from the bonds of law” was unthinkable and unpredictable. Even the introduction of civil marriage was perceived by the population at first unambiguously negatively.

Already on October 21, 1918, a decree of the Cheka was issued, which announced that “marks in passports about a church wedding, assignment on the basis of church wedding to a woman with the surname of the person with whom she married, the police marking such persons as married and issuing a passport to the surname of the citizen with whom she married is a sabotage of the decree on civil marriage, the appropriation of someone else's surname and the title of husband or wife, i.e. disruption of the decrees of the workers' and peasants' government, and for police officers - a crime in their official capacity.

Such a tough policy of the state authorities on the widespread spread of the civil form of marriage against the backdrop of widespread repression against the church gave results: by the mid-1920s, the next stage of reforming the marriage and family legislation began. The draft of the new Code of Laws on Marriage, Family and Guardianship of the RSFSR of 1926 contained a rule on the recognition of marriage registration as optional, on the recognition of legal force and extramarital cohabitation.

Nevertheless, with the adoption of the KZoBSO of the RSFSR, marriage registration was preserved "both in the interests of state and public, and in order to facilitate the protection of personal and property rights and interests of spouses and children."

"De facto marital relations" were not fully equated with marriage.

During the Great Patriotic War, due to the destabilization of society caused by military circumstances, the state was forced to take compensatory measures, and in particular to abandon the previously existing principles for regulating marriage issues. By a decree of the Presidium of the Supreme Soviet of the USSR of July 8, 1944, only registered marriages were again given legal significance. Cohabitants were given the right to register their union, created before the Decree, which took legal effect from the date they designated. At the same time, if one of them refused to register the marriage, the other was deprived of the right to prove the existence of actual marital relations in court. The establishment of actual marital relations (more precisely, the fact of cohabitation), which arose before July 8, 1944, became possible when the marriage could not take place due to the death of the "actual spouse", missing at the front. The procedure for establishing this fact was established by the Decree of the Presidium of the Supreme Soviet of the USSR of November 10, 1944 No.

Obviously, such a sharp reorientation of state policy in the field of family and marriage, which began to be carried out during the war, could be caused not only by the circumstances of wartime. It is quite possible that the destructive influence on matrimonial processes of the norms that equate extramarital cohabitation with registered marriage was identified and realized earlier. Wartime, however, aggravated the emerging situation to the limit, on the one hand, forcing, and on the other hand, making it possible and politically convenient to take immediate legal measures that quite reasonably “disavow” the previous approach.

Article 1 of the Family Code of the Russian Federation of 1996 enshrines: "A marriage concluded only in the civil registry offices is recognized."

The RF IC avoids using the terms "actual marriage", "actual marital relations". To refer to persons who are or have been for some time in an extramarital relationship, the phrase “persons who are not married to each other” is used here.

property relations. The general principle of Russian family law applies: the rights and obligations of spouses, including in relation to property, give rise only to a registered marriage. Therefore, the property of persons who are in de facto marital relations cannot be recognized as belonging to them on the basis of the right of joint ownership only on the grounds that it was acquired by them during life together.

Since the common joint property in accordance with paragraph 3 of Art. 244 of the Civil Code of the Russian Federation arises in cases stipulated by law, and the legislation does not provide for the establishment of such a regime in relation to illegitimate cohabitants, with respect to the property acquired by them jointly, the regime of common shared ownership should apply, and with respect to other property - the regime of individual private property. Cohabitants cannot change the general, civil law regime of property relations until they wish to marry, since the marriage contract in accordance with Art. 40 of the RF IC is considered a property agreement between spouses or persons entering into marriage. Moreover, in the latter case, the agreement acquires legal significance only after the marriage is registered (clause 1, article 41). civil marriage family legal

The right of joint ownership may arise for the de facto spouses only to the living quarters in which both of them are registered and which they have privatized into joint ownership, as well as to some other types of property, if the de facto spouses have formed a peasant (farmer) economy or entered into it. On any other jointly acquired property, the right of joint ownership of the actual spouses cannot be recognized.

Recognition of the property acquired by the de facto spouses as their shared, and not joint property, of course, is unprofitable for those who, after the termination of joint life, claims this property, and is unprofitable for a number of reasons.

Firstly, when dividing property between the actual spouses, their shares are determined based on the amount of funds or labor invested by each of them in the acquisition or creation of this or that thing, and it is necessary to prove the very fact and size of this investment (degree of participation). At the same time, due to the lack of registration of marriage, household work is not taken into account without fail, and wage and other incomes of the actual spouses from labor, entrepreneurial, intellectual activities are not their common property.

Secondly, in order to recognize property as being in common (at least shared) ownership, it is required to prove not the fact of the state in actual marital relations, but the acquisition of this particular property with funds or with the labor participation of both actual spouses. In itself, cohabitation without marriage registration has no legal significance and does not create a community of property.

Even if the persons who were in actual marital relations registered the marriage, the property acquired by them during their joint life, but before the registration of the marriage, will not be recognized as the common property of the spouses. When resolving a dispute between spouses about the ownership of such property, the court, as was said, should be guided not by the provisions of family law, but by the norms of civil law on common shared ownership and determine the share of each of the parties depending on the degree of its participation in the creation of common property.

At the same time, there is no doubt that the actual spouses, like any other participants in common shared ownership, have the right to conclude an agreement on the division of property that is in their common shared ownership, as well as an agreement on the procedure for possession, use, disposal of such property, on the distribution of fruits and income from the use of such property (Articles 246-248, 252 of the Civil Code of the Russian Federation). In order to provide de facto married persons with legal protection without prejudice to the basic principles of domestic family law, it is necessary to officially explain to notaries and bodies that carry out various types of registration that such persons have the right to conclude between themselves the appropriate agreements provided for participants in common shared ownership.

Alimony obligations. The content of the rules of Chapter 14 "Maintenance Obligations of Spouses and Former Spouses" of the RF IC also makes it possible to link the occurrence of the obligation of material maintenance only with marriage, and not with simple cohabitation. This obligation is assigned to spouses or former spouses, and the right to conclude an agreement on the content of Art. 99 of the RF IC provides the obligated and authorized person. Therefore, only alimony agreement between spouses or former spouses can be notarized. Agreements between cohabitants on mutual material support, of course, are possible, but their implementation does not have, and should not receive legal guarantees from the state.

In the sphere of personal non-property relations between spouses, actual marriage does not give rise to any legal consequences. However, in the field of moral and ethical relations, the moral relations of an actual marriage are equated to the state in a registered marriage. Within the meaning of paragraph 1 of Art. 51 of the Constitution of the Russian Federation, the rule on the release of a citizen from the obligation to testify against himself, his spouse and close relatives, the circle of which is determined by federal law, should have been applied to de facto spouses. Indeed, in the sphere of personal relations, an actual marriage and a registered marriage cannot have any significant differences, the denial of this fact would lead to the fact that the obligation to testify could also be imposed on persons who have been in actual marriage relations for decades, which would be contrary to the guarantees established in the Constitution of the Russian Federation.

Inheritance. A civil marriage differs from a registered one not only in the problems considered with the division of property. People can live together for a long time in full harmony, on common funds, acquiring property. In the event of the death of the actual spouse in whose name the property is registered, the other spouse does not acquire the right to inherit, unless a will was left in his favor or he was dependent on the deceased.

A common situation is when a person who has lived in an actual marriage for more than a dozen years does not receive any rights to jointly acquired property, and the inheritance passes to the heirs of the deceased by law (for example, to children from his first marriage). This situation often arises when people who already had families of their own acquire a new one and do not consider it necessary to legitimize their relationship.

The legal status of children born in a de facto marriage. In accordance with Art. 7 of the Convention on the Rights of the Child, adopted and open for signature, ratification and accession by Resolution 44/25 of the UN General Assembly of November 20, 1989, the child must be registered immediately after birth, which confirms his origin. This principle is also followed in Russian Federation. The origin of a child from certain parents becomes a legal fact only if it is certified by the competent authority (Article 47 of the RF IC). In turn, it is the establishment of the origin of the child that creates objective prerequisites for observing the rights of the child and fulfilling the duties of parents in his upbringing. It is important that in the future, the only basis for the emergence of mutual rights and obligations of parents and children can only be the origin of the child, certified in the prescribed manner.

The descent of a child from parents who are not married to each other on the paternal side is established by voluntary recognition by the alleged father of his paternity or by court order paternity.

With different surnames of the parents, the child is assigned the surname of the father or the surname of the mother by agreement of the parents, unless otherwise provided by the laws of the constituent entities of the Russian Federation (taking into account national traditions) (Clause 3, Article 58 of the RF IC).

The procedure and amount of provision of maintenance to the child by parents and other family members are determined by Sec. V SK RF "Maintenance obligations of family members" (Art. 80--84, 86, 93, 94). With regard to the various amounts of money due to the child, the right of ownership to them is recognized for the child. According to paragraph 1 of Art. 80 of the RF IC, parents are obliged to support their minor children, on the basis of paragraph 2 of Art. 80 of the Family Code of the Russian Federation, if one of the parents does not fulfill his obligations to support his minor child, then the enforcement of the necessary funds in court is allowed. Children born in de facto marriages retain the right to: upbringing; material content; inheritance after the death of a parent; parents are legal representatives of the child, etc.

Literature

1 The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // Rossiyskaya Gazeta. Dec 25, 1993

2 Family Code (IC RF) N 223-FZ dated December 29, 1995 with the latest amendments

3 Code of Civil Procedure of the Russian Federation dated November 14, 2002 No. 138-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation on October 23, 2002) (as amended on November 25, 2008) // Collection of Legislation of the Russian Federation, December 1, 2008, No. 48, art. 5518

4 Decree of the Presidium of the Supreme Soviet of the USSR of November 10, 1944 “On the procedure for recognizing actual marital relations in the event of the death or disappearance of one of the spouses at the front” // Code of Laws of the USSR, vol. 2, p. 156, 1990

5 Korotkova L.P., Vikhrov A.P. Family - only within the framework of the law // Jurisprudence. 1994. No. 5-6. S. 160.

6 Commentary on the Family Code of the Russian Federation / General. ed. P. V. Krasheninnikova. pp. 30-31.

7 Antokolskaya M.V. Family law. S. 115.

8 Commentary on the Family Code of the Russian Federation / Otv. ed. I. M. Kuznetsova. pp. 35-36.

9 Nechaeva A.M. Family law. S. 94.

Monogamous marriage, same-sex marriage and polygamy excluded

The principle of freedom of marriage

Equality of parties in marriage (article 19 of the constitution)

The marriage relationship is for life - no fixed term

Birth and upbringing of children.

Marriage is performed in the manner and form prescribed by law. Exceptions:

paragraph 7 of article 169
paragraph 1 of article 158, if there are no grounds provided for in article 14 of the UK and do not contradict the basic principles of family law (free voluntary union of a man and a woman)

Actual marital relationship

At ordinary people it's a civil marriage, but we superhumans shouldn't call it that. Such de facto marital relations do not entail any legal consequences.

Decree of the Presidium of the USSR Armed Forces November 1944 - only registered marriages have legal significance. Now the court is interpreting broadly.

Legal consequences of actual marital relations:

Doesn't give rise to any legal consequences

Equivalent marriages

- marriages concluded according to religious rites before the creation of Soviet registry offices and during the war of 1941-1945 in the occupied territories.

Conditions and procedure for marriage

Normative base:

Chapter 3 UK

Federal Law of November 15, 1997 No. 143-FZ on acts of civil status

The conditions for concluding a marriage (Article 12) are the circumstances (legal facts) necessary for the state registration of a marriage, as well as after the recognition of a marriage as valid and invalid.

Mutual, voluntary consent of a man and woman entering into marriage. Coercion is unacceptable and may in the future be the basis for recognizing the marriage as invalid.

Achievement marriageable age. Article 13 establishes such age - 18 years. A person under the age of 18 is a child. If there are valid reasons, at the request of the persons themselves, local governments may allow marriage when they reach 16 years of age. Valid reasons have not been established. The procedure and conditions for entering into marriage before the age of 16 may be established and permitted by the law of the subject.

Obstacles to marriage - circumstances (legal facts) in the presence of which registration is impossible and illegal. If the marriage is nevertheless concluded, it can be declared invalid. Article 14 lists:

If at least one of the persons entering into marriage is already in a registered marriage.

Marriages between close relatives in direct descending and ascending lines, as well as marriages between full and half brothers and sisters are prohibited. A more distant degree of kinship is not an obstacle.

Marriages are prohibited between adoptive parents and adopted children, since these relations are legally equivalent to the relations between parents and children.

It is unacceptable to marry a person recognized by the court as legally incompetent as a result of a mental disorder. If, at the time of marriage, a person was already confirmed to have a mental disorder, but there was no court decision yet, then such a marriage may subsequently be declared invalid on the basis that one of the spouses was not aware of his actions. If one of the spouses already in marriage becomes incapacitated, then the marriage continues, dissolution in the usual manner.

Article 15 of the RF IC provides for a medical examination of the spouses - but this is optional.

State registration of marriage:

Is the only form of marriage recognized by the state

State registration gives rise to legal relations of spouses

Marriage is entered into at the civil registry office (art. 10, para. 1)

You can marry in any registry office in the territory of the Russian Federation.

The basis is a joint statement of persons entering into marriage. An application submitted before the state registration of marriage does not bear any consequences, that is, it can be withdrawn without legal consequences. If persons do not have the opportunity to personally submit applications, they can send a notarized application to the registry office. Clause 1 of Article 11 of the IC and clause 1 of Article 2 of the Federal Law of the AGZ indicate that registration is carried out after 1 month from the date of application. Can be changed for valid reasons

Marriage is impossible in the absence of one of the parties, if a person cannot appear at the registry office to register a marriage, then an employee of the registry office leaves, who registers a pre-trial detention center in the hospital, etc.

A mark is made in the passport about marriage. A fee of 1 minimum wage is charged

The names of the spouses are chosen at the discretion

State registration of marriage between citizens residing outside the Russian Federation is carried out (Article 157 of the UK) in diplomatic missions or consular offices (also Article 6 of the Federal Law of the Civil Protection Agency).

In article 158, marriage can be contracted in the competent authorities of the state

A de facto marriage is an unregistered union of two people who live together and share a household. In simple words- cohabitation. Such a union does not give rise to mutual rights and obligations of the spouses. Their relationship is governed not by family, but by civil law. Children born in such a union must be recognized by their father and included in the certificate only with his written application, otherwise the woman will be a single mother. More details about all the features of the actual marriage will be discussed in this article.

The main thing

An actual marriage is an unofficial union of two people living together, having a joint life and leading a common household. In other words, it's just cohabitation, which is regulated only by civil law. An actual marriage is a union that is not registered in the manner prescribed by law, therefore it does not give rise to the emergence of family relations. People living together in this case are completely free and independent of each other. It is for this reason that many citizens who do not want to fetter themselves by official marriage choose it.

Characteristic

Despite the fact that people in de facto marriage live together, run a joint household and even raise common children, they are still considered free citizens, independent of each other. For a man, this is very convenient. At one time he has a family and a wife, but according to the law he is considered single and can marry another girl.

In our state, the actual marriage is the usual cohabitation of two people, which is not regulated by the norms of family law. Only children born in such a union are entitled to maintenance from their dad, if the latter acknowledges paternity.

Nevertheless, in Russia every year there are more and more such marriages. Because many young people do not want to take responsibility and formalize their relationship with their soulmate.

Cohabitation

If a legal marriage is registered in the registry office, then the actual one does not require compliance with such formalities. People simply converge and begin to live together in the same territory, calling their union a family. Nevertheless, they do not become a full cell of society.

The actual, civil marriage of a man and a woman is not regulated by the norms of the RF IC and, moreover, does not give rise to mutual rights and obligations for the spouses. Their relationship can be called a mutual partnership. People can long time live together, have common property and joint children, but from the point of view of the law they will not be a family. And this is despite the fact that other citizens consider them spouses.

Termination

From the moment when people disperse and begin to live in a separate living space, the actual marriage ceases to exist. In other words, a man and a woman no longer run a joint household and do not have a common budget. The actual divorce in this case occurs at the moment when one of the spouses no longer wants to be with the other and moves to a new place of residence. If people from such a union have children, then their fate is decided in accordance with family law. Therefore, if the wife who is the father of their common child left his wife, he is obliged to pay alimony for the maintenance of his child.

The rights of children born in an official marriage, and babies born as a result of simple cohabitation of mom and dad, are equal to each other and are enshrined in the RF IC.

As it was before

The concept of actual marriage was known in Russia as far back as Soviet times. It was then, in the 20s, that such a union of a man and a woman was recognized by family law. In addition, marriages were officially registered even with those people who were considered missing. This was the case until 1944.

The Code of Laws on Marriage, Family and Guardianship, adopted in 1926, equated the actual union of a woman with a man to official marriage. This was necessary in order to protect the representatives of the beautiful half of humanity and the rights of their children. Nevertheless, when dividing the common property, it was necessary to prove in a judicial body the fact that it was really a "marriage", and not a relationship. For this, witnesses were invited, correspondence and other documents were examined.

In 1944, according to the Decree of the Presidium of the Supreme Council, the unofficial ones lost their power. Civil spouses were asked to formalize their union in the manner prescribed by law. It was also necessary to indicate the period of cohabitation before marriage registration.

The situation of children

Babies born in an actual marriage have the same rights as those born in an official union. But for this it is necessary that the father of the child acknowledge his paternity and write a statement to the registry office. Otherwise, the baby's mother will be considered a single mother, because the marriage of people has not been officially registered.

In practice, situations very often occur when women have to prove the paternity of "common-law" husbands in court in order to receive at least some funds from them for the maintenance of children. Such cases are far from isolated. While in an official union, the woman's husband becomes the father of the child automatically even when the baby was born within 300 days after the divorce.

Due to such problems that may arise in the future, many women are unwilling to enter into a de facto marriage. Children born in an informal union are deprived of the opportunity to live in a full-fledged family and receive maintenance from the pope, especially if the latter turned out to be not a very decent person and refused to recognize and formalize his paternity.

Confession

An actual marriage has certain characteristics. In this case, people should live together as a family, have a common life, budget, children, and run a joint household. In addition, over the years lived together, people acquire things and values, real estate.

Accordingly, the recognition of marriage as actual occurs if:

A man and a woman run a common household and have a joint budget;

Citizens live together as legal spouses.

However, people do not have to have children. After all, many citizens living in a registered marriage, for various reasons, do not try to continue their family.

Property

What to do with common valuable things if a man and a woman decide to end their informal relationship and leave? This question is asked by many people who find themselves in similar situation. After all, an unofficial union of two people is an actual marriage. The division of property in this case will be carried out in accordance with the norms of civil law, and not family law. In addition, each of the spouses will have to prove their right to the thing and the fact of its acquisition. If property purchased during a legal marriage is considered the joint property of a husband and wife, then during the period of cohabitation it belongs only to the person on whom it is registered.

Example

Young people met and after some time decided to live together. They were in no hurry to form a relationship. Nevertheless, during the actual cohabitation, the man purchased a new car with the money of his common-law wife, which he registered for himself. The couple broke up two years later and ex-wife decided that she has every right to a refund of half the cost of the car. The man was against it. She could not prove the fact that the woman gave him money, because she did not have any evidence (receipts, etc.). Accordingly, the car remained with the former common-law husband, since according to the documents he is its owner.

Distinctive features

Marriage legal and actual have certain similarities. They are manifested in the fact that in both the first and second cases people live together, run a common household and have a joint budget. But that's where the similarity ends. Now let's list the differences. At the moment when children are born in a legal marriage, they are automatically assigned the surname and patronymic of their dad. What can not be said about a child who was born in an unregistered union. After all, the fact of his origin from the mother's common-law husband must be officially confirmed in the registry office, and for this the latter must write a statement. If this does not happen, the woman is recognized as a single mother. She can prove paternity only in court.

The property acquired during the official union is the same in the event of a divorce, it will be divided in half. But things bought during the actual marriage are considered the property of the one who purchased them.

What's better

Many women want to be only legal wives and therefore do not even allow the thought of living with a man without marriage registration. Nevertheless, some representatives of the fair sex believe that at first you can do without formalizing the relationship. Opinions on this matter are always divided. Of course, most women want to get married, so for them the best solution is to immediately formalize the relationship than to live without registration and not have any rights. Men think a little differently, especially since the stamp in the passport has not yet kept any of them from an unloved partner. They do not want to immediately seal an alliance with a woman and lose their freedom, preferring first to "live together and test feelings."

Today, Russian legislation does not distinguish separate terms that reveal the essence of the concept of marriage and family. But this does not mean at all that the legislator did not fix the main provisions of marital relations between men and women, as well as the consequences arising from this union in the form of material, spiritual and other benefits, as well as obligations to children born in the family.

Along with this, along with the laws of marriage, today in Russia it is becoming fashionable to “live” together in order to “look closely” at each other, and only then get married. In many families, such a period sometimes stretches for decades, and in some cases, the spouses manage to die without legitimizing their relationship. Taking into account such trends, such a concept as “civil marriage” and the consequences associated with it were enshrined at the legislative level. True, this also does not fully solve the existing problems, therefore, attempts to expand the influence of potential spouses on each other continue to this day.

Now we propose to consider everything in order in order to fully plunge into the problems, weigh the positive and negative sides of individual proposals and draw our own conclusions.

What decides legal marriage

Before you start to panic and be afraid of legal marital relations, it is advisable to consider what they are, how they are displayed on a man and a woman, what legal implications may have, including in the event of a break in relations and the termination of the family. Immediately it should be noted such basic aspects of life in a legal marital relationship:

a marriage union is a voluntary decision of a man and a woman to live as one family for the purpose of joint household management, the birth and upbringing of children;
in marriage, the couple has the same right to the property, things, material and non-material benefits acquired during such a life;
in the event of the appearance of children, the spouses are obliged to ensure their proper upbringing, living conditions, and the opportunity to receive an education;
spouses have the right to demand from the state the performance of certain actions in the interests of another of the married couple on their own behalf without the need for any consents and guarantees;
the opportunity to live under the same surname, to act on behalf of each other in the interests of the family without any powers of attorney and guarantees;
the realization of the right to large purchases (for example, real estate, cars, land plots) subject to state registration can be carried out only with the consent of the other spouse;
the possibility of forcing the second of the spouses to perform certain actions regarding the interns of the family and its members (for example, the payment of alimony, restriction of communication with the wife, children, a ban on visiting the home of the former spouse after a divorce, an administrative warning in the event of the use of physical force against the second of the spouses or joint children).

Of course, this is not a complete list of obligations and rights of the parties that they receive by entering into a legal marital relationship. At the same time, the presence of a stamp in the passport guarantees a certain social protection, the possibility of receiving help from a loved one in difficult times. Given that such a union is a voluntary decision, even in the event of any trouble, the spouses try not to leave the other in trouble, and if this does not happen, the state has the right to oblige the negligent husband or wife to perform the functions assigned by law to support another from the family, as well as minors. children (if any).

It must be understood that it is this prospect of dependence on another person and the formidable state supervision of those who do not want to fully fulfill family obligations and functions that becomes the reason why most men (as it happened according to available statistics) try to do without a legal union. Often, they simply motivate their actions by the need to look at each other, to understand how you fit, are compatible in character, temperament, and the ability to get along at the everyday level. Over time, legal marriage begins to be relegated to the background (the argument is simple - why rush, because we are already fine), and then they try to forget about it altogether. As a result, when any troubles occur, and the second of the spouses does not want to help, there are simply no levers to oblige him to do this.

Civil marriage than it's good

In some way, a breakthrough at the legislative level was the introduction (albeit indirectly) of such a concept as “civil marriage”. The legislator refers to civil marriages the joint long-term residence of a man and a woman, the conduct of a joint household, the existence of a joint budget. At the same time, such a couple does not legitimize their relationship in the established manner. That is, legally, this is just the usual living under one roof of legally alien women and men.

Such a marriage has the following distinctive characteristics:

a couple lives in the same house or apartment for a long time;
there is a common household, life, a couple helps each other in various everyday situations;
by agreement among themselves, they carry out various purchases, including real estate, cars, land plots that require state registration. At the same time, the coordination of the second of the pair is not required - here everything is carried out exclusively by the decision of such a civil family;
children born in such a union are not considered born in a full-fledged family, although they may have the surname of both the mother and the father (here, at the request of the parents);
at the legislative level, the possibility of dividing property in the event of a breakup of such a couple is fixed;
in order to “break up” it is not required to notify someone and register something - it is enough just to put the other side before the fact.

It must be understood that such residence is also a voluntary decision of a man and a woman. In this case, no one has the right to force them to do this, or, against their will, forbid them to live like this. Except in cases where such relationships are entered into by underage young people for whom their parents are still responsible.

From everything described above, it is not difficult to guess that both a man and a woman living in a civil marriage can simply pick up and leave at any time. At the same time, if there was no big purchases(usually this applies to real estate, expensive things, cars) that were bought for joint money and the parties want to share them, on this such a marriage can be considered over.

At the same time, in order to prove the fact of such a purchase, you will have to go to court, provide evidence of cohabitation, purchase of a thing or property with common money. And if during the life of the spouses such a division usually ends with the adoption of settlement agreements (after all, recently they were still close people, albeit without legal obligations), then in the event of the death of one of such spouses and the need to enter into an inheritance, if there are other relatives , the procedure for allocating such property can be very complicated. After all, here you will first have to prove the fact of living in a civil marriage, and then also the fact of acquiring a thing for joint money, and then also defending the right to part of it.

What is "De facto marital relationship" based on the proposals of legislators

Now that we have briefly familiarized ourselves with the current concepts of Russian family law, as well as the main advantages and disadvantages of such types of cohabitation, we can consider another initiative of legislators regarding the legalization of such a concept as “actual residence”.

In short, this is something between a civil marriage and a real marriage. And to be more precise, this is a smooth transition from the state of civil marriage to the actual legitimization and equating the couple living together to marital relations. At the same time, according to legislators, introducing such a concept into the legislation, it is necessary to endow such a marriage with certain powers and obligations. To start:

establish a period when a long-term cohabitation of a couple ceases to be considered a civil marriage without obligations and passes into the category of an “automatic” family;
establish a list of additional rights and obligations that arise for a couple living in a “de facto relationship” in connection with the recognition of such a fact;
the need to establish a mechanism for how cohabitation will be recognized as “actual marriages”, which for this will need to be provided or performed;
to decide and legally regulate the procedure of “actual relations” of a couple in which a man and a woman are citizens of other countries and how this will be regulated outside of Russia.

In fact, the idea of introducing the concept of “actual marriage”, or automatically equating life together with legal marital relations, would significantly strengthen the position of each of the parties to such relations, if necessary, to protect themselves, their property, to realize the desire to receive protection from the state in difficult times . At the same time, the issues of division of property in the event of the death of one of the spouses are also simplified - it will not be necessary to look for evidence for their own acquisitions, it is enough just to recognize the fact of “actual marriage”, and then the whole procedure will be carried out according to general legislation.

It must be understood that the presence of such a concept will significantly strengthen the position of children born in an unregistered marriage, as well as allow them to exercise their right to help from their parents in difficult situations. life situations, as well as enable the state to force one of the parents (or two at once) to fulfill their parental obligations.

Considering the positive countries of this phenomenon, one should not ignore some critical remarks made both at the level of legislators, legal organizations and lawyers, as well as during various sociological surveys. First of all, all opponents of such a concept come down to one thing - marriage (even legal, even civil), this phenomenon is voluntary. No one is forcing anyone to do this and does not oblige anyone to do or refuse. This is followed by a simple but quite effective argument - if the couple decides, then she has the opportunity to simply legalize their relationship in the prescribed manner and not run around the courts, proving that you have long been a “actual family” and forgive to issue a document confirming this.

Many critics agree that forced marriage (essentially automatic, without the consent of the parties, recognition of a civil marriage as an official union, it is advisable to call it that way) has a huge number of legislative gaps (for example, if you can always divorce in a legal marriage and this procedure is provided for on the legislative level, then what about the actual marriage, recognized by the court, if one of the couple further legitimizes their relationship with another person). That is why it is easy to drive a concept without thinking through and modeling most of possible situations, in which such pairs may appear, and also, without providing a normal mechanism for their settlement, in the end there will be an even greater collapse than we have today.

The most ardent opponents of such a position say simply - such an approach will simply push cohabitants to indiscriminately change sexual partners so as not to be trapped in marital relations. Therefore, it is better to improve the existing legislative norms regarding life in a civil marriage regarding the division of property and the protection of joint children, and after that just put a bullet.

The legislation of most states recognizes only a marriage formalized in the prescribed manner, i.e. registered with the appropriately authorized state or municipal authorities or performed in accordance with a certain religious rite, if the laws of this country equate a religious marriage with a registered secular one.

One of the main principles of the current family legislation of the Russian Federation is the recognition of only a marriage concluded in the registry office (clause 2, article 1, clause 2, article 10 of the RF IC). As a general rule, only a marriage registered in the manner prescribed by law gives rise to the rights and obligations that are provided for by family law for spouses.

The exception is the rule established by the Decree of the Presidium of the Supreme Soviet of the USSR of November 10, 1944 "On the procedure for recognizing actual marital relations in the event of the death or disappearance of one of the spouses at the front."

In the history of domestic family law, there was a period when actual marriages were given legal significance. Actual marital relations gave rise to legal consequences similar to the consequences of legal marriage during the period of the Code of Laws on Marriage, Family and Guardianship of the RSFSR of 1926 and before the adoption of the Decree of the Presidium of the Supreme Soviet of the USSR of 07/08/1944 "On increasing state aid pregnant women, mothers of many children and single mothers, strengthening the protection of motherhood and childhood, establishing the highest degree of distinction - the title of "Mother Heroine" and the establishment of the Order of Maternal Glory and the medal "Medal of Motherhood"", which the actual spouses were asked to formalize their relationship by registering marriage indicating the period of actual joint life.If the actual marriage was not registered, it retained its legal force only until July 8, 1944. If such registration turned out to be impossible due to the fact that one of the actual spouses died or went missing at the front during The Decree of the Presidium of the Supreme Soviet of the USSR dated 11/10/1944 granted the other de facto spouse the right to apply to the court for recognition of his (her) spouse as dead or missing on the basis of the previous legislation.

If initially the possibility of judicial recognition of actual marital relations was allowed only in relation to persons who died or went missing at the front, then later judicial practice went along the path of a broad interpretation of the Decree, extending its effect to relations when the death or disappearance of one of the spouses occurred although and after the war, but the actual marital relations that arose before 07/08/1944 continued until the death of the spouse, and objective circumstances (serious illness and other circumstances that prevented the registration of marriage) did not allow the spouses to subsequently register the marriage.

It should be noted that the Decree of November 10, 1944 did not set a time limit for the surviving de facto spouse to apply to the court for recognition of him (her) on the basis of previous legislation as the spouse of the deceased or missing at the front. Therefore, appealing to the sul with such a statement is possible in our time. And although there are fewer and fewer people who are in actual marriage relations that arose before 07/08/1944, the need for legal recognition of such relations is not completely removed.

Thus, at present, the actual marital relations of persons, one of whom died or went missing at the front during the Great Patriotic War, can be equated to a registered marriage.

Resolution of the Plenum of the RF Armed Forces dated 11/05/1998 No. ^ explains that since, in accordance with the legislation in force before the issuance of the Decree of 07/08/1944, an unregistered marriage had the same legal consequences as a registered one, on property acquired jointly by persons who were in family relationships without registration of marriage, until the entry into force of the Decree, the regime of common joint property of the spouses is extended. Based on paragraph 6 of Art. 169 of the RF IC, when resolving a dispute on the division of such property, it is necessary to be guided by the rules established by Art. 34-37 RF IC.

In other cases, actual marital relations cannot be regulated by family law. The property relations of the actual spouses can be regulated only by the norms of civil legislation on common shared property, which was repeatedly emphasized in the decisions of the highest judicial bodies.

However, in some cases, the property of the de facto spouses may be subject to the regime of common joint property. In accordance with paragraph 3 of Art. 244 of the Civil Code of the Russian Federation, the formation of joint ownership of property is possible only in cases provided for by law. In addition to the RF IC, other laws also provide for the emergence of joint ownership. Thus, in the original version of Art. 2 of the Law of the Russian Federation of 04.07.1991 No. 1541-1 "On the privatization of the housing stock in the Russian Federation", residential premises could be transferred into common ownership (joint or shared) or into the ownership of one of the cohabiting persons, including minors. In accordance with the amendments made to this Law on May 15, 2001, residential premises transferred by way of privatization may belong to persons living in them only on the basis of the right of common shared ownership, with the exception of spouses to whom the residential premises are transferred to joint ownership. Thus, for 10 years, the privatization housing legislation allowed for the possibility of joint ownership of persons who are not in a registered marriage.

The de facto spouses may also have common joint ownership of certain other types of property if they are part of a peasant (farm) economy or common property in a horticultural, horticultural or dacha non-profit partnership acquired or created by such a partnership at the expense of earmarked contributions from its members. if the de facto spouses are members of one such partnership. The relations of the actual spouses regarding such property are subject to regulation not by family law, but by civil law norms on joint property.

See: Federal Law No. 74-FZ of June 11, 2003 "On the Peasant (Farmer's) Economy".
See: Federal Law No. 66-FZ of April 15, 1998 "On Horticultural, Orchard and Dacha Non-Commercial Associations of Citizens".