Marriage as a social phenomenon. Institute of family law civil marriage is the state power in the Russian Federation

The closeness of kinship is determined by establishing the degree of kinship.

The degree of kinship is the number of births linking two related persons. When calculating the number of births, the birth of the ancestor itself is not taken into account.

(n) Mother and son - first degree, grandmother and grandson - second degree.

Legal significance is attached to kinship; property should be distinguished from it.

Property - the relationship between relatives of one spouse (mother-in-law, son-in-law, stepson, stepdaughter, stepmother, stepfather) or relatives of both spouses (wife's father, husband's father).

Property is not regulated by law, with the exception of cases expressly provided for by law (in the UK, the property between a stepmother and a stepdaughter, a stepson is included in the actual composition giving rise to alimony obligations).

Husband and wife are neither relatives nor in-laws, they are in a special legal relationship - matrimony.

Topic 3

Marriage as an institution of family law

3) The concept of marriage and its essence

4) Conclusion of marriage

2.1 Procedure and conditions for marriage

2.2 Circumstances Preventing Marriage

3) Termination of marriage

4) Invalidity of marriage

The concept of marriage and its essence

Marriage is a complex institution and its definition would inevitably be incomplete and could not cover all the existing signs of marriage that lie outside the law (Ryasentsev).

Marriage can be defined as a monogamous, voluntary and equal union of a man and a woman, concluded in compliance with the procedure established by law, aimed at creating a family, giving rise to mutual personal and property rights and obligations between spouses.

From this definition, signs can be distinguished:

1) Equality - is on an equal footing. There is no discrimination on any grounds.

2) Voluntariness

3) Monogamy - the union of one man and one woman.

4) The purpose of the union is to create a family. If the marriage is created for other reasons, there is a reason to invalidate it.

5) Such a union, which is concluded in compliance with the rules established by the state (only in the registry office).

All these features characterize the essence of marriage.

The historical essence of marriage: three main legal theories can be distinguished here, explaining the legal nature of marriage.

ü Contract theory

ü Mystery theory

ü Understanding marriage as a special kind of institution.

1. Contract theory

In ancient Rome, historically the first. All the main forms of marriage were in the form of a simple civil transaction. This is explained by the fact that only the property content of marriage relations was regulated by law.

2. The theory of the sacrament

With the development of society, family relations began to be regulated by religious norms and marriage was given the character of a mystical sacrament (marriages are made in heaven). The ethical, physical elements of marriage fell into the scope of regulation. For that period of time, this approach was justified.

3. Institute of a special kind

The historical development of society has led to the fact that in place of religion, and sometimes along with it, came ethical ideas about marriage. It is possible to regulate what can be directly regulated. At the same time, marriage is not considered either as a sacrament, or as an institution of a special kind (Zaigorovsky, Shershenevich, Ioffe).

Procedure and conditions for marriage

Art. 10 SK: only a marriage entered into in the registry office is recognized as valid on the territory of the Russian Federation. That is, only a registered marriage has legal significance - according to the legislation of the Russian Federation, neither church marriages, nor marriages concluded according to local customs or national rituals have legal significance. These marriages give rise to neither rights nor responsibilities.

Exception: at present, the UK provides the possibility of recognizing church marriages if they were concluded in the occupied territories of the USSR during the Second World War before the restoration of the registry office in these territories. These marriages do not need subsequent state registration (clause 7 of article 169 of the SK).

The main link in family law is marriage. There is no definition of marriage in the Family Code of the Russian Federation. It follows from the general theory of family law. The list of legal requirements that must be met when contracting a marriage, and the consequences of registering a marriage, allows you to define a marriage as follows:

Marriage is a voluntary and equal union of a man and a woman, concluded in compliance with the procedure established by law and giving rise to mutual personal and property rights and obligations between spouses.

State registration of marriage means that, according to Russian law, neither a wedding ceremony in a church, nor a marriage entered into according to local or national rites is a marriage from a legal point of view and does not give rise to legal consequences. Registration of marriage in the church is a personal matter of the persons entering into marriage and can take place either before or at any time after the registration of the marriage, but not instead. However, in all cases, a marriage is legally considered to exist only after its official registration with the registry office. It is from the date of state registration of marriage that spouses have a whole complex of mutual rights and obligations, and a child born after state registration of marriage is considered to be born in marriage with all the ensuing consequences.

According to Art. 10 of the RF IC, marriage is concluded in the civil registration authorities, which gives rise to the rights and obligations of spouses who have entered into marriage and family relations. The law regulates the conditions and procedure for marriage.

Conditions for marriage:

- the presence of a mutual voluntary desire of a man and a woman;

- they have reached the marriageable age.

Circumstances Preventing Marriage... Marriage is not allowed between:

Persons of whom at least one person is already in another registered marriage;

Close relatives (relatives in a direct ascending and descending line (parents and children, grandfather, grandmother and grandchildren), full and incomplete (having a common father or mother) brothers and sisters);

By adoptive parents and adopted children;

Persons, at least one of whom is recognized by the court as legally incompetent;

Persons of the same sex.

Marriage procedure:

The marriage is registered by submitting an application to the registry office at least one month before registration. In special cases (pregnancy, childbirth, immediate threat to the life of one of the parties), the marriage can be concluded on the day the application is submitted;

Refusal to register a marriage can be appealed against in court. According to the law, a marriage can be dissolved at the request of one or both spouses, as well as at the request of the spouse's guardian, who has been declared legally incompetent.

Termination of marriage is carried out as a result of the following legal facts:

- invalidation of marriage;

- divorce;

- the death of one of the spouses or the declaration of one of the spouses as deceased.

Let us consider these circumstances in more detail.

1. Recognition of marriage as invalid. It is carried out only in court on the following grounds:

At least one of the conditions for contracting a marriage is missing;

There is at least one circumstance that prevents marriage;

Conclusion of a fictitious marriage (without the intention to start a family);

If one of the persons who got married hid the presence of a sexually transmitted disease or HIV infection from another person.

Consequences of invalidating a marriage depend on whether the spouse is conscientious or not. Conscientious a spouse is recognized who did not know and could not have known about the existence of obstacles to marriage. Unscrupulous the spouse knew that there were barriers to marriage.

In the event of bad faith of both spouses (fictitious marriage), the marriage does not give rise to family legal consequences, it is invalid from the moment of its registration (as opposed to divorce). A conscientious spouse leaves an invalid marriage with a full set of rights - if he wishes, he can keep his surname, if he took it during registration (personal non-property right), property rights (property in relation to him is divided in accordance with the rules on common joint ownership, he can collect alimony, there is a novel - can recover damages caused by marriage and moral harm - severe physical or mental suffering). An unscrupulous spouse does not receive any rights provided for by the UK. He loses his surname, if he received it in marriage, the property acquired in marriage is divided in accordance with the norms of the Civil Code on common shared property, loses the right to alimony, even if he is disabled and in need.

Consequences of the invalidity of a marriage for a child... A child born in an invalidated marriage has the same rights as a child born in a valid marriage. It is not required to establish paternity for the recovery of alimony, for inheritance - he becomes the heir automatically.

2. Divorce. Divorce.

The freedom to marry also allows for the freedom of divorce. Divorce is both a legal and a social phenomenon (the collapse of the institution of marriage).

The Law does not contain a formal list of circumstances that may serve as grounds for divorce. Our legislation does not list the reasons for divorce, since our state traditionally treats divorce as a statement of the breakdown of a family, and not as a punishment for bad behavior.

The RF IC restricts the freedom of divorce in the following case: the husband has no right, without the consent of his wife, to initiate a divorce case during the period of his wife's pregnancy and within one year from the birth of the child.

As a general rule, divorce is carried out in the authorities Registry office, except in cases of divorce in judicial procedure.

1. Dissolution of marriage in the registry office implies two orders:

1.1 About ordinary order- divorce at the request of both spouses in the presence of the following circumstances:

Mutual consent to divorce;

The spouses have no minor children.

1.2 Y forgiven order- at the request of one of the spouses, only in the presence of the following circumstances:

Recognition of the other spouse as missing (Article 42 of the Civil Code);

Recognition of the other spouse as legally incompetent;

If the other spouse is serving a term of imprisonment for more than three years.

2. Marriages of the spouses are dissolved in a judicial proceeding:

Having minor children;

If one does not agree to a divorce;

Arguing among themselves about the division of jointly acquired property.

Divorce is subject to state registration on the basis of an extract from the court decision, which the court sends to the registry office within three days from the date of entry into force of the court decision.

3. Death of a spouse.

The death of any spouse (declared dead under Art. 45 of the Civil Code) is the basis for the termination of the marriage.

From the moment of registration of marriage, spouses have equal rights and obligations as property and non-property character. Non-property rights and obligations of spouses boil down to the following:

1. Personal rights of spouses:

- free choice of occupation, profession, place of stay and place of residence;

- free choice of surname - premarital husband or wife, or double;

- change of surname without divorce.

2. Personal responsibilities of spouses:

- 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 welfare and development of their children.

Property rights and obligations between spouses include about matrimonial property relations, and are regulated or sanctioned by the Family Code of the Russian Federation, which establishes two matrimonial property regime:

1. Legal(provided by the RF IC);

2. Negotiated.

Consider legal regime matrimonial property, which includes the basic concepts:

1. Composition and property regime of each of the spouses.

The indivisible property of each of the spouses includes:

1.1. Everything that each of them acquired before the registration of marriage - i.e. it is necessary to keep the documents of the acquisition, otherwise it will be impossible to prove in court that this is a separate property.

1.2 Everything that everyone received during marriage as a gift, by inheritance or other gratuitous transactions, there must be a certificate of the right to inheritance, it is much more difficult to confirm that the property was donated. If a gift is made to both, it is a common joint property, if separately, then a separate property of each (for example, wedding gifts) is a simple written form of a donation contract.

1.3 Personal items - the property of each of the spouses, with the exception of jewelry and other luxury items. A jewel, which is at the same time an object of individual use, is, according to the legal regime, a common joint property. When the property is divided, this thing will be divided (i.e. the spouse who uses it will have to give the other 1/2 of the value). Neither the law nor the ordinance contains a list of luxury goods. Doctrine: the luxury item is determined according to the level of household consumption. If the luxury item was donated, then it is the property of one spouse. But there must be a written form. If a luxury item was acquired in marriage by both spouses, this is already a regime of common joint property. Our law is silent about the subjects of professional activity of each of the spouses, if they are used by one spouse. The doctrine notes that the items of professional activity should have a similar regime with luxury items (common joint ownership).

1.4 Lump-sum payments of a targeted nature related to the personality of a given spouse (for example, a Nobel Prize).

1.5 Property acquired by each spouse during the period of separation, if it is proved in court that they actually terminated family relations.

2. Composition and regime of common joint property of spouses - property that the spouses acquired during the registered marriage (except for the property of each of them).

Property of spouses- this is:

1. Income from various kinds of labor, entrepreneurial and intellectual activities; various cash payments that are not targeted (pensions, benefits);

2. Various movable and immovable things acquired at the expense of general income (house, share in a cooperative);

3. Any other property acquired during the period of a registered marriage, regardless of in whose name it is registered and by whom of the spouses the corresponding funds have been contributed (spouses have equal rights to common joint property, even if one of the spouses does not participate in the creation of the material well-being of the family).

If one of the spouses does not participate in the creation of the material well-being of the family for disrespectful reasons, then he is not entitled to an equal share. The common joint property of the spouses under certain conditions may become the property of one of them - Art. 37 of the RF IC. For example, if the property of one of the spouses has been jointly invested by the labor of both spouses in cash, or if the other spouse has invested in the property of one of the spouses by labor or money, and if the value of the property has increased significantly, then such property becomes common joint property.

Basic rule joint property of spouses- the spouses own, use and dispose of the common joint property by mutual consent (together), and the consent of the other spouse when one of them disposes of such property is presumed. But in some cases you need to get consent of the other spouse, notarized(Article 35 of the RF IC), for example:

1. When it comes to the disposal of common real estate.

2. If one of the spouses enters into any transaction with common property requiring notarization or state registration.

The contractual regime of the spouses' property. When entering into marriage, the spouses have the right to settle property relations between themselves by concluding a marriage contract (Chapter 8 of the Family Code of the Russian Federation).

Prenuptial agreement the agreement of the persons entering into marriage or the agreement of the spouses is recognized, which determines the property rights and obligations of the spouses in the marriage and (or) in the event of its dissolution. Such an agreement can be concluded at any time, both before the registration of the marriage, and after it, but when it is concluded before the registration of the marriage, the entry into force of the agreement will occur from the moment of state registration of the marriage. In this case, in any case, a notarial certification of the written form of the marriage contract is required.

At the request of one of the spouses, the marriage contract can be changed or terminated by a court decision on the grounds and in the manner established by the Civil Code of the Russian Federation for changing and terminating the contract.

The validity of the marriage contract is terminated from the moment of termination of the marriage, with the exception of those obligations that are stipulated by the marriage contract for the period after the termination of the marriage.

A marriage contract may be declared invalid by a court in whole or in part on the grounds provided for by the Civil Code of the Russian Federation for the invalidity of transactions.

The court may also declare the marriage contract invalid in whole or in part at the request of one of the spouses, if the terms of the contract put that spouse in an extremely disadvantageous position.

2) The procedure and conditions for the conclusion of marriage;

3) Invalidity of marriage;

4) Termination of marriage.

1 question

The RF IC does not define marriage. Because marriage is a complex institution, its legal definition would inevitably be incomplete, since could not cover all the essential signs of marriage that lie outside the law. "Brachiti" (Slavs.) - to select the good, to reject the bad.

Marriage is a monogamous voluntary and equal union of a man and a woman, concluded in compliance with the procedure established by law, aimed at creating a family, giving rise to mutual personal and property rights and obligations between spouses. Marriage traits:

v It is always equal. The marriage is contracted on an equal footing;

v Marriage ...
voluntary;

v Monogamy (1 man + 1 woman);

v The purpose of the union is to create a family;

v Union, concluded in compliance with the established procedure (registry office).

3 concepts that explain the legal nature of marriage:

® Contract theory. Developed in ancient Rome, the essence of the theory: all the main forms of marriage bore the signs of a simple civil transaction. Only the property sphere of marriage relations was subject to legal regulation, the moral and spiritual aspects of marriage were not included in the subject of regulation;

® The theory of the sacrament. The Roman order was replaced by the church. With the development of society, family values ​​began to be regulated by church norms and marriage was given the character of a mystical sacrament "marriages are made in heaven." The ethical and physical elements of marriage were regulated;

® A special kind of institute. The religious concept, and sometimes along with it, was replaced by ethical ideas about marriage, and the concept of marriage began to be deduced from the correspondence of the marriage union to the moral nature of man. At the same time, marriage is not considered either as a sacrament or as a contract, but as an institution of a special kind. G.F. Shershenevich, Zagorovsky, Ioffe.

2 question

According to Art. 10 of the RF IC, only a marriage entered into in the registry office is recognized on the territory of the Russian Federation. Only registered marriages are given legal significance. According to Russian legislation, neither the church form of marriage (wedding in marriage), nor a marriage concluded according to local customs or national rituals is given legal significance.

Currently, the Investigative Committee of the Russian Federation provides for the possibility of recognizing the legal force of the church form of marriage if the marriage in this form was committed in the occupied territories of the USSR during the Second World War before the restoration of the registry office in these territories. P. 7 Art. 169 of the RF IC.

The establishment of the GR also means that no legal force is given to the actual marriage relationship, no matter how long it lasts, therefore, they do not give rise to legal consequences. "Civil" marriage is a delusion. France - legalization of marriages at the municipal level.

Property relations between the actual spouses are governed by the norms on common shared ownership, established by the norms of Ch. 16 of the Civil Code of the Russian Federation.

FOR THE SEMINAR: marriage abroad.

THE IMPORTANCE OF STATE REGISTRATION OF MARRIAGE

§ Legislative;

§ Protection of the rights and interests of spouses.

State body - the body of the registry office. Document - marriage certificate in unit. copies

The GR is based on the joint application of the persons entering into marriage. Registration is carried out by any registry office on the territory of the Russian Federation at the choice of the persons entering into marriage (Art. 25 of the Federal Law "On AGS"). Persons entering into marriage submit a joint application in writing, which confirms 2 facts: mutual voluntary consent / absence of circumstances that prevent marriage. If one of the persons entering into marriage cannot appear to submit a joint application, then the expression of the will of persons entering into marriage can be formalized in separate applications, but the signature of the person who cannot appear must be notarized. Previously, it was mandatory to be present together when submitting an application. The marriage is contracted in person after a month from the date of submission of the application. If there are valid reasons, the registry office can authorize marriage before the expiration of a month, or may increase the period, but no more than 1 month. The reasons for the decrease can be varied, there is no list, but pregnancy, childbirth, conscription, urgent departure on a business trip, and if they get married and are actually in a marriage relationship, "de facto relations have been established." As for the extension of the term, there is no list. Maybe an illness, a desire to better prepare for the wedding. The reasons can be both before and after the application. The fact that the registration date has already been set is not a reason for refusing to transfer.

There are special circumstances in which the registry office can register a marriage on the day the application is submitted. These are exceptional circumstances (there is no list): pregnancy, childbirth, if the life of one of the parties is in danger (departure on a difficult dangerous business trip; departure to the combat area - it does not matter who you went in; impending dangerous medical operation). Documentary evidence and decision taking into account the specific circumstances. Submission of an application to the registry office has no legal consequences and does not bind the persons who submitted the application in any way, i.e. everyone can refuse to register a marriage at any time. A month to think.

The personal presence of the persons entering into marriage is obligatory at the time of registration. In the event that the persons entering into marriage cannot appear at the registry office due to illness or other good reason, the GR can be performed at home, in a medical institution or in another place in the presence of the persons entering into marriage.

CONDITIONS FOR CONCLUSION OF A MARRIAGE

This is the so-called. “Material” conditions, as opposed to those related to the form and procedure of marriage. Failure to comply with one of the material conditions for the conclusion of marriage entails its invalidity.

· Voluntary consent of the persons entering into marriage;

· Age of marriage. General rule: 18 years of age for marriage, may be reduced:

Up to 16 years old, but according to the decision of the OMS (district administration) for MF of persons entering into marriage with valid reasons - any (pregnancy, childbirth, existing actual marriage);

The possibility of marrying a person under 16 years of age (the issue is decided by the laws of the constituent entities of the Russian Federation, which establish the conditions and procedure for marriage as an exception). An emancipated minor does not acquire marital capacity by virtue of only the fact of emancipation. To register a marriage, he must obtain the appropriate permission on a general basis.

CIRCUMSTANCES TO OBTAIN A MARRIAGE

Marriage is not allowed:

Þ Close relationship (non-rehabilitated basis). There is an exhaustive list of persons who are prohibited from getting married. Parents, children, grandfathers, grandmothers and grandchildren, full-blooded (common father and mother) and incomplete (either mother or common father) brothers and sisters. The ban is biological in nature. Stepbrothers and sisters can marry because none of them is blood related. Cousins ​​and siblings can (lateral relationship!);

Þ Marriage of the adoptive parent and the adopted child (the prohibition is of a moral and ethical nature). In order to enter into such a marriage, it is necessary to apply for the cancellation of the adoption;

Þ Marriage with a person declared legally incompetent by the court. This is a mentally seriously ill person, whose helpless state can be used by an adventurous (inappropriate) marriage partner without the goal of creating a family;

Þ You cannot get married if at least one person is already in a registered marriage. Manifestation of the principle of monogamy - double marriage and bigamy are prohibited. However, in the republics (Chechnya, Ingushetia) this is allowed legally. The actual marriage relationship is not an obstacle to marriage.

The list of the above circumstances is exhaustive. Refusal to register a marriage for other reasons is not allowed, incl. and medical. DLs have no right to find out the circumstances, and even if there is information about the disease (AIDS, HIV), they have no right to refuse to register a marriage. Maintaining medical secrecy.

CONFERENCE (MARRIAGE AND PROPERTY). CLOSE FOREIGN LEGISLATION.

3 question

The law does not contain the concept of "invalidity of marriage", but only specifies the conditions, violation of which entails invalidity. A marriage is declared invalid if the conditions for its conclusion are violated, as well as when a fictitious marriage is concluded.

Grounds for invalidating a marriage

All bases can be conditionally divided into several groups:

I. Violation of the conditions of marriage established by law;

Ø In the absence of mutual voluntary consent to marry. This is a flaw of will, expressed in:

× Coercion - consent to marriage was formed under the influence of physical or mental violence or the threat of its use. Coercion can come both from the other person getting married and from persons who can also act both in the interests of that person and in their own. Violence and threat can relate both to the person entering into marriage and to people close to him (child);

× Misconceptions - the person entering into marriage has a misconception about the circumstances that are essential for the conclusion of the marriage. However, the delusion should not concern the motives, but the personality of the other spouse, his physical identification (marriage with the wrong person). As a significant delusion, a delusion about the moral qualities of a person can be recognized (practice: marriage with a convicted person; marriage with a prostitute); delusion about social status, property status, profession; misconceptions about health status (infectious diseases);

× Cheating - deliberately misleading a person in order to get married. It is expressed in the communication of false information, omission of facts that are of decisive importance (a person deliberately impersonates another). When assessing the circumstances, only a subjective factor acts, i.e. how exactly these circumstances affected a particular person;

× Conclusion of marriage, although with a capable person, but at the time of marriage, due to his condition, did not give an account of his actions and was not able to guide them. Reasons: nervous shock; mental disorder or other illness (physical injury, alcohol or drug intoxication). Documents confirming the circumstances; testimony, expertise;

Ø Marriage entered into with a minor who has not been given permission to lower the marriageable age. However, such a marriage cannot be declared invalid only if it is required by the interests of the minor and with his consent. If there is no consent of the minor, then such a marriage can be invalidated only if there is a real threat to the health or interests of the minor (involvement in drugs, involvement in a criminal environment, coercion into prostitution).

II. The conclusion of a marriage in the presence of circumstances preventing its conclusion:

In the presence of a close relationship: people do not know that they are relatives. Such a marriage cannot be recognized as valid under any circumstances;

Marriage between an adoptive parent and an adopted child;

With an incapacitated person who is recognized as such in court. If the person has recovered and legal capacity is restored to him by a court decision + they agree to continue the marital relationship, then such a marriage can be recognized as valid;

Entering into a second marriage without terminating the previous one. The second (subsequent) is recognized as invalid. A marriage can be recognized as valid if, by the time the case is considered in court, the previous marriage has been terminated (dissolved, the spouse has died, the marriage is invalidated).

III. Concealment by one of the spouses from the other that he has a sexually transmitted disease or HIV infection. But the legal force is associated with the fact of concealment of the disease;

IV. A sham marriage is a marriage that is entered into without the intention of starting a family on the part of one or both spouses. When entering into such a marriage, the spouses always pursue certain goals (obtaining the right to housing (registration at the place of residence), the right to Russian citizenship, the right to pensions, benefits, benefits, the right to property). However, the main sign of a fictitious marriage is not motives, but the lack of intention to start a family. If the persons who entered the marriage pursued property or other benefits and at the same time they created a family, then such a marriage is not fictitious and cannot be recognized by it. Such a marriage is valid - "a marriage of selfish motives", "marriages of convenience."

This list of grounds is exhaustive, the marriage is invalidated only by a court decision, before that the presumption of the validity of the marriage is valid. In itself, the existence of grounds for declaring a marriage invalid does not automatically entail such a recognition. Cases are considered in the form of a claim proceeding, the statute of limitations does not apply to claims for recognition of marriage, they can be brought at any time during the existence of the marriage itself. Filing a claim after divorce is generally not allowed. However, there are exceptions: marriages between relatives; marriage without termination of the previous one.

CONSEQUENCES OF A MARRIAGE VALID

Cancellation of all legal consequences of marriage. This is the basic meaning of the invalidity of marriage. The invalidation of a marriage is retroactive in time. The marriage is invalid from the moment of its conclusion. Divorced legal consequences for the future (where to define children).

ü Personal legal relations are terminated from the moment of marriage (the right to a surname, the right to common citizenship, the right to registration);

ü Property relations: norms on common shared ownership (depending on the contributions, who earned what, he takes it).

All legal consequences can be made dependent on the subjective characteristics of each of the spouses. We are talking about a conscientious spouse (did not know and could not know). The annulment of all legal consequences of a contracted marriage would violate the interests of a bona fide spouse. According to paragraph 1 of Art. 30 of the RF IC, the court has the right (may) to retain the surname, recognize the right to alimony. It is possible to apply the norms of the RF IC to the property acquired during such a marriage. But if it is to the benefit of a conscientious spouse. The court may recognize the marriage contract as valid in whole or in part. In addition, a conscientious spouse may demand compensation for moral and material damage. The invalidation of a marriage does not affect the rights of children born in such a marriage. This can be refuted by the court.

PERSONS WHO HAVE THE RIGHT TO REQUEST THE INVALIDATION OF A MARRIAGE

Art. 28 of the RF IC. All these persons are established depending on the grounds for declaring the marriage invalid:

☻ The spouse whose rights have been violated;

☻ Legal representatives (parents, guardians, trustees, adoptive parents);

☻ Other persons whose rights have been violated (spouse from a previous marriage);

☻ Prosecutor.

CIRCUMSTANCES ELIMINATING THE INVALIDITY OF THE MARRIAGE

By the time the case is considered in court, the circumstances that entail the invalidity of the marriage may cease to exist. In this case, the marriage can be recognized as valid, i.e. he can be sanitized (healed). However, the disappearance of the conditions does not in itself entail the reorganization of the marriage, but only gives the right to the court to recognize the marriage as valid. The court ascertains the presence of legal obstacles (another unbroken marriage), which serve as the basis for declaring the marriage null and void. The court concludes that the marriage is invalid.

Then the court reveals the presence of legal restorative law firms (divorce, death of a spouse from a previous marriage). After that, the court can recognize the marriage as valid, but from the moment when the circumstances ceased to exist. Even if these circumstances have ceased to exist in the interests of the bona fide spouse, the court may invalidate the marriage.

4 question

Termination of marriage (volitional)

This is the law firm, with the onset of which the legislation connects the termination of marriage relations. Art. 16 IC RF establishes a list of grounds for termination of marriage, which can be conditionally divided into 2 groups:

v Grounds related to natural causes without volitional character:

Ø Death of a spouse;

Ø Announcement of the spouse as deceased.

Termination of a marriage on these grounds does not require a special procedure. It is enough to present to the registry office a document certifying the death of a spouse or a court decision declaring the spouse deceased. Registration of this act gives the spouse the right to remarry. The restoration of such a marriage is possible if the spouse returned, or his place of residence was discovered; a court decision has taken place, overturning the previous decision; there must be a joint application for the restoration of marriage. This is possible if either of these spouses is not married. Such a marriage is not automatically restored.

v Grounds related to the will criterion:

· Dissolution of a marriage at the request of one of the spouses or at the request of the guardian of the spouse, recognized by the court as legally incompetent. In accordance with the RF IC, divorce can be carried out in the registry office or in court. Moreover, the law does not provide spouses with an opportunity to choose the procedure for divorce. The actual termination of marital relations without proper registration of a divorce (they do not conduct a joint household) does not entail the termination of the marriage, even if the parties have not lived together for a long time.

Registry office: if there is a mutual consent of both spouses and they do not have common minor children, including adopted children. Consent is expressed in writing by submitting joint or 2 separate applications (a person who cannot appear at the registry office to submit an application submits his independent application, but the signature on which is notarized). If one of the spouses changed his mind before registering a divorce, then the dissolution of the marriage is possible only through a court. In the registry office, divorce is carried out at the request of one spouse (regardless of whether the spouses have common minor children): if the other spouse is recognized as missing / incompetent by the court / sentenced to drugs for over 3 years. Divorce and the issuance of a certificate is carried out after 1 month from the filing of the application. Regardless of the divorce, the spouses may have unresolved issues in the registry office. In this case, according to Art. 20 IC RF, disputes over the division of joint property; on the payment of funds for the maintenance of a disabled needy spouse; disputes about children (the spouse is convicted or incapacitated) are resolved in court.

Introduction

Theoretical part

Marriage as a social phenomenon

Marriage as a legal institution

Practical part

Conclusion

Bibliographic list

Introduction

The first form of family relations appeared in the era of savagery and was a group marriage, in which marriage relations are established between a specific group of men and women. However, the sexual community at the early stage of primitiveness gradually dies out, since various restrictions and prohibitions arise on its way. For example, the age ban and the ban on incest. The circle of persons covered by marriage, due to the prohibitions, is gradually narrowing to a pair family, which has become the main model of marriage relations in Europe and America. The institution of marriage, without exaggeration, can be called the key in the science of family law. Marriage is closely related to the concept of the family and is its foundation. In Art. 1 of the Family Code of the Russian Federation (hereinafter - the RF IC) proclaims that the family is under the protection of the state, and also that 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 and the equality of rights of spouses in the family. Of course, at all times, the institution of marriage has been given special attention not only by the state, but also by society. The legal and social nature of this institution is of interest to researchers at the present time.

The object of this study was the institution of marriage in Russian family law. The subject of the research is the norms of family legislation in Russia, scientific and educational literature on the topic under study. The aim of this work is to analyze the institution of marriage in Russian family law. To achieve this goal, the following tasks are formulated:

analysis of marriage as a social phenomenon

study of marriage as a legal institution.

Practical part

... Marriage as a social phenomenon

First of all, marriage is a product of society and is a social phenomenon. Basically and in its most general form, marriage should be understood as a historically conditioned union between males and females, through which relations between the sexes are regulated and the position of the child in society is determined.

M.V. Krotov emphasizes that, as a rule, a monogamous or polygamous model of marriage is chosen by this or that state on the basis of historical traditions, religious and other ideas prevailing in society.

A.I. Zagorovsky identified the following elements that make up marriage as a multilateral institution. Marriage (among a cultured people) contains the following elements: firstly, a natural (physical) element, sexual - the physiological attraction of individuals of different sexes to each other imbedded by nature in humans along with other animals; secondly, the moral (ethical) element, which consists in the mutual moral affection of the spouses, in the communication of their inner, spiritual world; thirdly, economic, giving rise to an economic connection, due to which a common economy of a husband and wife arises; fourthly, the legal element, by virtue of which marriage is the source of a certain legal position of persons mutually related by matrimony, and gives rise to mutual rights and obligations for them, and fifthly, a religious one, subjecting marriage to the rules of religion: no religion is indifferent to marriage, and especially Christian.

In the religious sense, marriage is a mystical union, a sacrament, or, as A.I. Zagorovsky, the most complete communication between a man and a woman.

Marriage is a way of regulating sexual relations in society, from promiscuity to egalitarian union. It is believed that "the survival of humans as a species and evolutionary progress were made possible only by the unique combination of sexual and reproductive behavior." Undoubtedly, the most important factor in the socialization of people is precisely the ordering of relations between the sexes. The formation of human society presupposed the curbing of the basic animal instinct - the sexual one, the establishment of special forms of relations between a man and a woman, which include marriage and family. From the unlimited reproductive instinct, the social characteristics of human life were derived. In all historical epochs, marriage was universal, since there is something more in human marriage, rooted in the deepest essence of human nature and society, combining economic and sexual (reproductive) together. Throughout human history, marriage is a social foundation that engenders relationships not only of marriage, but also of parenthood.

Marriage is a unique form of satisfying a person's need for children (in its continuation), and for humanity as a whole, it is the main way of simple reproduction of the population. The demographic function is the main and specific function of marriage as a social organism. V.V. Yarkov pointed out that marriage is the basis of the family, the purpose of which is primarily in raising children and caring for their future, which cannot but affect the interests of modern society. That is why the conditions for entering into a marriage, the grounds for its dissolution cannot be considered a private matter of the spouses themselves. When they get married, they take on certain responsibilities, the main one of which is raising children. This is the public interest in the name of which the state reserves the right to interfere in this sphere of human life.

... Marriage as a legal institution

As you know, Russian legislation does not provide a definition of marriage, which, notes L.M. Pchelintsev, it is quite natural, since a negative approach to the normative consolidation of the concept of marriage was characteristic for a long time also for the previously existing family legislation in Russia, including the three previous marriage and family codes of the post-revolutionary period.

Returning to modern family legislation, we can state that the physical element of marriage and, accordingly, the presence of joint children or the opportunity to have joint children are not obligatory.

One way or another, the state has taken upon itself the obligation to protect the marriage and, one might say, the obligation (and at the same time the right) to legitimize the marriage by means of its state registration, so, according to paragraph 2 of Art. 1 Investigative Committee of the Russian Federation is recognized as a marriage entered into only in the registry office (hereinafter - the registry office). Without state legitimation of marriage between a man and a woman, neither the legal status of spouses, nor the regime of common joint ownership of property, nor any other legal consequences arise. Even a marriage contracted in a church is not legally significant, since, according to the Constitution of the Russian Federation, Russia is a secular state. But what is meant by marriage in the legal sense? The definition of marriage as a union of a man and a woman registered with the registry office in compliance with the established conditions is obviously not enough, if only because when resolving the issue of fictitious marriage, the court cannot proceed from the fact that since the marriage is registered in compliance with the conditions provided for by law, it means , it is valid.

G.F. Shershenevich noted that the definition of marriage in the legal sense as a union of a man and a woman for the purpose of cohabitation based on mutual agreement and concluded in the established form, as a whole, contains the entire set of conditions under which cohabitation of persons of different sex becomes legal, that is, entails all the consequences of legal marriage. However, the modern RF IC does not contain an indication of cohabitation as an obligatory element of marriage.

So, considering various concepts of marriage, we will find certain flaws in them, and none can be perfect. The reason lies in the fact that family and marriage, besides being social phenomena, are also highly individual. There are spiritual and natural principles in the family and marriage, which cannot be regulated by the law of a secular state. According to M.V. Antokolskaya, in a modern pluralistic society it is impossible to impose on all its members a single idea of ​​marriage. Therefore, the law, based on moral norms, should cover only that sphere of marriage relations, which, firstly, lends itself to legal regulation, and secondly, needs it.

There is no single concept of marriage either in scientific works or in family law. The state can only say through denial that it is not a marriage, while the legislator and the court are guided by such principles as monogamy of the union of a man and a woman, freedom of marriage, equality of spouses, performance in the manner and form established by law.

The understanding of marriage as an institution of a special kind arose from the division of marriage and the legal relationship arising from it, which has a different legal nature than the legal fact that gave rise to it. O.A. Krasavchikov noted that the legal state in marriage and other similar states "should be attributed no more than to legal relations, a characteristic feature of which (unlike most civil legal obligations) is relative stability. It is no coincidence, for example, in the literature of family law, the state of a person in marriage until now was considered and is considered now as a marital relationship, which arises by virtue of legal facts. " In this case, the legal fact should be understood as the registration of marriage. The registration itself by the registry office is an administrative act, the legitimation of relations, which gives rise to the emergence of legal relations between spouses. Such legal relations are an institution of a special kind, which includes property, inheritance and even non-property relations. Indeed, marriage legal relations are not reducible to any single civil legal institution; they can combine elements of many civil relations, such as relations of representation, property, alimony, etc. Do not forget that the marriage relationship as a relationship regulated by the norms of law does not include many spiritual aspects that take place in the life of spouses. This is typical not only for marriage legal relationships.

The theory of marriage as a contract, according to the testimony of some modern authors, for example M.V. Antokolskaya, goes back to the law of Ancient Rome, where all the main forms of marriage bore signs of a civil law transaction. Canon law sees in marriage at the same time a sacrament and a contract, modern civil law - a complex legal transaction. Roman law, on the other hand, considered marriage as an actual state of things (res facti), although it entailed the most important legal consequences. Roman marriage by its very nature leaves the solemn act unaddressed. It arises and exists insofar as, in fact, there are two fundamental elements: cohabitation (objective demand) and conjugal love, maritalis affectio (subjective demand), therefore, in the absence of one of these moments, the marriage ends.

From the above, it is clear that the signs of a civil law transaction were not inherent in all forms of Roman marriage, as M.V. Antokolskaya. Although some of them, perhaps, at some period had such signs.

In Russian pre-revolutionary science there was an interesting theory of peasant marriage, the so-called artel theory, according to which it was believed that consanguinity in a family is not its basis, but is an accidental element, the position of the head of a peasant family is nothing more than the position of the manager of the common economy, more precisely - artel headman. At the same time, all the property of the family belongs not to the head of the family personally, but to all family members together as equity holders of common joint property, and the rights of such equity holders are based not on blood relationship, but on the personal labor of each and, moreover, in the amount of actual participation. This view forces us to view family and marriage as something like a contract, a property transaction. This position was adhered to by many Russian scientists, for example Orshansky, Efimenko, Matveev.

The essence of marriage as a property transaction was explained by the fact that marriage produces a transfer of a certain value from the hands of the bride's parents to the hands of the groom, while the value was understood as the woman's labor force. Thus, marriage is a contract of purchase and sale for the acquisition of labor and other property as funds of the family economy.

Later, the theory of marriage arose as a contract between the spouses themselves, and not between the groom and the bride's parents. However, quite a number of scholars have criticized and criticize this contractual theory of marriage. In support of their objections, it is often argued that a contract cannot give rise to a marriage relationship, since a contract is always something temporary concerning property, and marriage covers the entire human life and ends with the death of spouses or the loss of mutual love and respect. However, one should agree with M.V. Antokolskaya, who correctly notes that the lack of such arguments is the transfer of ethical ideas about marriage to the field of law. "Law," writes M.V. Antokolskaya, "of course, should be built in accordance with the ethical ideas of its era. But law cannot include ethical norms."

And nevertheless, the statement that the law regulates property relations between spouses does not yet give reason to say that marriage is a civil contract. Externally, marriage falls within the scope of Art. 420 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation) that an agreement is recognized as an agreement between two or more persons on the establishment, change or termination of civil rights and obligations. Of course, a man and a woman who have entered into a marriage union establish, change and terminate some civil rights for themselves. However, upon marriage, the future spouses do not stipulate the rights and obligations that should arise by virtue of such an agreement, i.e. do not establish the content of the contract, and yet such rights and obligations do arise, but arise automatically by virtue of the law. At the same time, it is extremely doubtful to say that the spouses, entering into marriage, had the goal in advance to acquire all the stipulated rights and obligations and on this basis to build a contractual theory of marriage. If we follow this concept, then the declaration of paternity of a man who is not the husband of the child's mother is a civil contract between the father and the child (in the person of the child's mother, who agrees to such an entry, which follows from the obligation to sign a declaration of paternity with the mother - Article 51 of the Investigative Committee of the Russian Federation), according to which the father undertakes the obligation to maintain and raise the child, and the child, upon reaching the age of majority, undertakes to support the disabled father. But it is obvious that such a statement cannot be considered a contract, but is only a legal fact that gives rise to the corresponding legal relationship. Otherwise, we will have to interpret a significant number of actions as civil law contracts or unilateral transactions.

In addition, the following justification can be given in denying the concept of marriage as a contract. Neither running a common household, nor having children is an obligatory element of marriage. In this case, what can be called the subject of such an agreement? Obviously, this treaty does not have an object, which excludes the very possibility of its existence.

So, given the above, it should be concluded that marriage is not a contract. At the same time, the registration of a marriage itself is an administrative act, and the resulting marriage legal relationship is an institution in which elements of many civil law institutions are present.

marriage property civil contract

Practical part

After the divorce of the Saprykin couple, the ex-husband fell seriously ill, and, being bedridden, was in the care of his mother. The ex-wife decided to remarry and brought their child Alyosha to his father for upbringing, saying that the son reminds her of her ex-husband, whom she hates. Despite the objections of Saprykin and his elderly mother about the possibility of raising a child, the ex-wife threatened that if they returned Alyosha, she would kick him out into the street. Leaving his son at home, Saprykin was unable to pay due attention to him. The boy began to sneak and wander. Is it possible in this case to raise the question of depriving Saprykin of parental rights?

Art. 69 provides an exhaustive list of grounds for deprivation of parental rights, namely, parents (one of them) may be deprived of parental rights if they:

avoid fulfilling the duties of parents, including in the case of malicious evasion from the payment of alimony;

refuse without good reason to take their child from a maternity hospital (department) or from another medical institution, educational institution, social welfare institution or similar organizations;

abuse their parental rights;

cruel treatment of children, including physical or mental violence against them, encroachment on their sexual integrity;

are sick with chronic alcoholism or drug addiction;

committed a deliberate crime against the life or health of their children or against the life or health of a spouse.

In the case we are considering, Saprykin cannot pay due attention and properly exercise his parental rights, not because of unwillingness, but because of the impossibility of this because of his illness, which his ex-wife knew about. Consequently, there are no grounds for depriving him of his parental rights.

Conclusion

Summing up the above, it should be noted that in the Russian family legislation there is no legal definition of marriage, in connection with which, in theory, there are various approaches to understanding this institution.

Of course, marriage is not just a biological and social union of a man and a woman performing reproductive functions in society, but a much more complex organism under the "tutelage" of the state and law. It is the law that, by its influence, turns the connection between a man and a woman into a legal relationship, endowing them with a special status with the consolidation of special rights and obligations.

The compilation of all legal definitions can be the following legal definition of marriage, which should be enshrined in Art. 12 of the RF IC: "Marriage is a voluntary union of a man and a woman who have reached marriageable age, registered with the civil registry authorities in the absence of circumstances preventing marriage, giving rise to a legal relationship of matrimony, both personal and property, concluded with the aim of creating a family."

It is possible that the legislative fixation of this legal category will contribute to the social and legal strength of this institution.

Bibliographic list

1.Constitution of the Russian Federation. // Collected Legislation of the Russian Federation. 2009. N 4. Art. 445

.Family Code of the Russian Federation from 29.12.95 N 223-FZ (revised on 23.12.2010) // SZ RF. 1996. N 1. Art.16

.Antokolskaya M.V. Family Law. - 3rd ed., Rev. add. - M .: Norma: Infra-M, 2010.

.Civil proceedings: peculiarities of consideration of certain categories of cases: Textbook.-Practical. manual / Otv. ed. V.V. Yarkov. - M., 2001.

5.A.I. Zagorovsky Family Law Course. - M .: Zertsalo, 2003.

.Krasavchikov O.A. Legal facts in Soviet civil law. - M., 1958.

.Krotov M.V. The concept and signs of marriage / Civil law. Textbook / Under. ed. A.P. Sergeeva, Yu.K. Tolstoy. - T. 3. - M .: Prospect, 2004.

.Pchelintseva L.M. Family law of Russia. - M .: Norma, 2002.

.Sanfilippo Cesare. Roman Private Law Course. - M .: Publishing house "BEK", 2002.

In recent decades, marriage in the sociological sense has been viewed in Russia mainly as "a union between men and women, through which relations between the sexes are regulated and the position of the child in society is determined", or as "a historically conditioned, sanctioned and regulated by society form of relations between women. and a man, establishing their relationship to each other and to children. " In modern domestic encyclopedic literature, marriage is usually understood as the family union of a man and a woman (matrimony), which gives rise to their rights and obligations in relation to each other and to children. ...

However, in the UK there is no definition of marriage as a specific legal fact and one of the main institutions of family law, which is quite natural, since a negative approach to the normative consolidation of the concept of marriage was characteristic for a long time also for the previously existing family legislation in Russia, including the three previous marriage and family law. Code of the post-revolutionary period (1918, 1926 and 1969). As emphasized in modern legal literature, the absence of a legally established definition of marriage is due to the fact that marriage is a complex complex social phenomenon influenced not only by legal, but also by ethical, moral norms, as well as economic laws, which would call into question the completeness of the definition marriage only from a legal standpoint, especially since "the spiritual and physical elements of marriage, of course, cannot be regulated by law." This position is not new and is generally consistent with the theoretical conclusions of the well-known legal scholars A.M. Belyakova, N.V. Orlova, V.A. Ryasentseva et al. That "the legal definition of marriage would inevitably be incomplete, since it could not cover the essential features of marriage that lie outside the law."

In this regard, it seems appropriate to give an overview comparative analysis of various points of view on the concept of marriage that existed in Russian family law in the current century. First of all, attention is drawn to the fact that this G.F. At the beginning of the century, at the beginning of the century, the definition of marriage from a legal point of view as a union of a man and a woman for the purpose of cohabitation, based on mutual agreement and concluded in the prescribed form, as a whole contained a set of basic conditions, in the presence of which “cohabitation of persons of different sex becomes legal, then has entails all the consequences of legal marriage. " It is no accident that G.F. Shershenevich, the concept of marriage was largely decisive for the subsequent substantiation of points of view on marriage precisely as a voluntary union of a man and a woman (in various variations), although it was criticized in Soviet family law "for claims to a unified suitability for all times and peoples" and the absence of specific signs of a marriage union of a certain historical formation.

As you know, in Soviet legal science, there was a steady tendency to substantiate marriage as a fundamentally new form of family union between a man and a woman in a socialist society, different from the forms of marriage used in foreign countries. Attempts were also made to consolidate the concept of marriage in the family legislation of the RSFSR, which, however, did not bring a positive result. In modern studies, it is noted that one of the main signs of marriage in post-revolutionary Russia was recognized, first of all, the mutual inclination (love) of the spouses, in connection with which, in the monographs of that period, marriage was understood as "a relationship of cohabitation based on the principles of love, friendship, cooperation" or “Free cohabitation of two persons”. In addition, based on the characteristics of the analyzed historical era, an obligatory element of marriage was also the presence of a common household with mutual material support of the spouses and the joint upbringing of children, which was actually enshrined in the 1926 Code of Laws on Marriage, Family and Guardianship as a reflection of the view that existed at that time the family as a kind of "labor union" of men and women.

Subsequently, the concept of marriage in the science of Soviet family law underwent certain changes with the development of society, while maintaining, however, an understanding of its main essence in the form of a union of a man and a woman in order to create a family. It should be noted that the socio-political situation that existed at that time could not but be reflected in the results of research on this issue. Therefore, the term "socialist marriage" was used quite often, formally emphasizing its supposedly fundamental difference from a "bourgeois" marriage. At the same time, it was stated that in the legislation of foreign countries, marriage, as a rule, is considered not in the form of a free and equal union of a man and a woman, but as a civil law transaction. Therefore, for example, the definition of marriage, given by the French legal scholar Julio de la Morandier, was criticized as a civil contract that unites a man and a woman to live together and provide mutual support and assistance under the leadership of the husband. At the same time, most scientific works have invariably emphasized that marriage cannot be a deal or contract, but is a legally formalized free and voluntary union of a man and a woman aimed at creating a family, giving rise to mutual rights and obligations.

For a long time, the legal literature also expressed the point of view that marriage as a union of a man and a woman aimed at creating a family, in principle, should have a lifelong character. This position was based on the natural assumption that one of the main goals of the family should be the birth and upbringing of children. Moreover, this approach to determining the goals of marriage and the creation of a family by a man and a woman was characteristic not only of Soviet family law, but was also reflected in the legislation of some foreign countries, containing norms on the conclusion of marriage "for life", although due to the significant prevalence divorce was more moral and ethical than imperative. The practical vulnerability of the thesis about marriage as a life-long marriage has become apparent in connection with the prevalence in recent decades in some countries of marriage in the form of partnership (partnership). However, the principle of marriage for life during the days of “developed socialism” in the USSR was rather desirable than actual, and now it cannot be recognized as a mandatory sign of marriage based on the content of the middle class. For similar reasons, it would be incorrect to include in the definition of marriage as a necessary feature of the goal in the form of the birth and upbringing of children, proposed earlier by some authors, which is recognized in modern legal literature.

Thus, for obvious reasons, not all of the signs of marriage recognized in Soviet family law as a specific form of marriage of the "socialist formation" can be recognized as such in modern family law in Russia, which is distinguished by a variety of views on marriage. Of course, this situation is a reflection of not only a significant shift in emphasis in scientific research on family law towards a more free discussion of controversial issues, but also a significant strengthening of contractual principles in the new IC, including the improvement of the legal institution of the marriage contract, originally introduced in the Russian Federation by Art. 256 of the Civil Code (part one) from January 1, 1995. On this basis, completely new, non-traditional views on marriage for domestic legal science arise, fundamentally different from the points of view that previously existed in Soviet family law. For example, M.V. Antokolskaya, consistently investigating the legal theories of marriage as a contract, as a sacrament and as an institution of a special kind (sui generis), comes to the conclusion that “an agreement on the conclusion of a marriage by its legal nature does not differ from a civil contract. In the part in which it is regulated by law and generates legal consequences, it is a contract. " At the same time, marriage in the extra-legal sphere can be regarded by those entering into marriage "as an oath to God or as a moral obligation or as a purely property transaction." However, M.V. Antokolskaya notes that most legal scholars in the Russian Federation do not recognize the marriage agreement as a civil contract, since future spouses cannot determine the content of the marriage relationship for themselves, due to the fact that their rights and obligations are established by peremptory norms of the law, which is not typical for contractual relationship. In addition, the purpose of marriage is not only the emergence of a marital relationship, but also the creation of a union based on love, respect, mutual assistance, mutual support, etc.

On the other hand, in the theory of modern domestic family law, views on marriage as a free, voluntary and equal union of a man and a woman, based on feelings of mutual love and respect, concluded in the civil registry offices to create a family and giving rise to mutual rights, continue to prevail. and the responsibilities of the spouses. A similar definition is given in the scientific and monographic literature on family law with some adjustments. So, O.A. Khazova understands marriage as "a monogamous voluntary and equal union of a man and a woman, concluded in compliance with the procedure established by law and giving rise to mutual personal and property rights and obligations between spouses." Roughly the same concept of marriage is given by other authors. A.M. Nechaeva, also giving the traditional concept of marriage as a union of a man and a woman, entailing legal consequences, at the same time, she regards it as a form of relations between persons of different sexes and as a kind of symbol for those entering into marriage and for the state.

At the same time, as E.S. rightly points out. Hetman, in the legal literature there is no consensus regarding the legal nature of marriage as an agreement between spouses. At the same time, some authors consider marriage as a volitional purposeful act committed with the aim of generating legal consequences, and this shows the similarity of marriage with a civil deal (this is the position of OS Ioffe), while others - as an ordinary civil contract. The purpose of marriage, for example, O.S. Ioffe determined the desire of individuals to receive state recognition of the created union, the basis of which - mutual love and respect - is not included in its legal content. Once this foundation is undermined, the marriage can end at any time, which is not possible in civil transactions. Therefore, the social content, goals and legal features of marriage exclude its assessment as one of the varieties of civil transactions.

Diverse points of view on the legal nature of marriage exist not only in domestic family law, but also in the family law of foreign states. In particular, E.A. Vasiliev distinguishes three main conceptual points of view on marriage from among those existing abroad: marriage-contract (the most common concept), marriage-status, marriage-partnership.

It is characteristic that, as in Russia, the constitutional legislation of most foreign countries establishes the need for state protection of marriage as the basis of the family. For example, the Irish Constitution stipulates that "the state undertakes the obligation to protect with particular care the institution of marriage, on which the family is based, and to protect it from attacks." And in some states it was considered necessary to give a normative definition of marriage, and it is in the constitution. So, Art. 46 of the Constitution of the Republic of Bulgaria 1991. proclaims that "marriage is a voluntary union of a man and a woman."

Thus, the foregoing makes it possible to give the following concept of 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 accordance with the established procedure 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 the spouses of a personal and property nature.