Why de facto marital relations deserve legislative regulation

Actual marital relations in marriage can be understood as property legal relations and personal non-property legal relations.

Marriage relationships are regulated by moral norms (love, support, friendship). Personal non-property rights cannot be the subject of civil legal relations; they cannot be the subject of contracts, agreements, transactions and do not have a monetary value. Personal non-property rights will not be the subject of a marriage contract; this excludes the conclusion of an agreement between spouses and reduces their rights.

Actual marital non-property relations include:

• place of residence and place of stay;
• giving consent to adoption;
• choice of a surname by spouses upon divorce and marriage;
• choice of profession;
• choice of activities.

At the time of marriage registration, the husband and wife have the right to keep their surnames before marriage, or take the surname of their spouse. As a common surname, spouses can combine each other's surnames by combining them into one. The law prohibits combining surnames if the surname of one spouse is already double; this is provided for in Article 32 of the Family Code of the Russian Federation.

It is important to mention that upon marriage, changing the surname is a voluntary expression of the will of the spouses and is not the responsibility of the persons entering into marriage. The law does not provide for the right of a spouse to demand a change of surname.

The list of questions related to actual marital relations includes:

The voluntary choice of spouses in choosing education, profession, housekeeping, lifestyle and place to live is the actual marital relationship of the spouses. The spouses' objections regarding their relationship actually have no legal significance. It is possible to influence your spouse in choosing a profession only through recommendations and advice. The final decision of the spouses in choosing a profession is taken personally by the spouses and should not be dictated or imposed.

Spouses can decide on their place of residence jointly; they can live together or separately. The creation of a family, as well as marriage relationships and their meaning, initially presupposes that a man and a woman live together.

ATTENTION !!!! No one has the right to choose for spouses or limit their places of stay and residence. A change of place of residence of one of the spouses does not oblige the other spouse to change the place of residence.

The place of residence of minor children under 14 years of age is determined by the citizen’s place of residence, where he permanently or primarily resides. In cases where spouses live separately, the question of the place of residence of their minor children is determined by the court, on the basis of paragraph 3 of Article 65 of the Family Code of the Russian Federation, or by agreement of the spouses.

The Family Code of the Russian Federation does not provide for legal punishments for failure to fulfill non-property obligations. At the same time, it should be remembered that neglect of the interests of the family, obstruction by the spouse of the exercise of his personal rights, violation of the rights of the child or other family members can serve as a reason for divorce.

Main

A de facto marriage is an unofficial union of two people living together, having a common life and leading a common household. In other words, it is simply cohabitation, which is regulated only by civil law. A de facto marriage is a union that is not registered in the manner prescribed by law, so it does not give rise to 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 bind themselves to the bonds of official marriage choose it.

Characteristic

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

In our state, a de facto marriage is an ordinary cohabitation of two people, which is not regulated by family law. Only children born in such a union are entitled to maintenance from their father if the latter recognizes 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 significant other.

Types of marriages

Once upon a time, people did not have to think about how to formalize their relationships. In the Ancient World, the Middle Ages and up to the twentieth century, two people could only be in an officially registered relationship, according to the laws established in the country. But the twentieth century brought serious changes to people’s worldview, which naturally affected attitudes towards love and marital union. Nowadays there are several types of marriage relationships known in society:

• actual marriage;
• civil marriage;
• fictitious marriage;
• virtual;
• guest;
• church.

It is worth noting that not all types of marriage are legally recognized. For example, in our country, virtual marriage, when partners register as spouses on a special website, is viewed as just a whim and pampering. But a guest marriage, in which spouses who have registered their relationship according to the laws of the country, prefer to live separately and meet by prior agreement, will be recognized in any court. A fictitious marriage created for the purpose of obtaining benefits is a criminal offense. Church marriage ties, of course, do not exist in legal practice as a form of marriage. But this does not prevent the newlyweds from consolidating their relationship registered in the registry office with a wedding. This serious approach is strongly approved by the clergy and is considered by society as a manifestation of the love and responsibility of young people to each other. But the terms “actual marriage” and “civil marriage” often cause confusion and even seem to many to be synonymous. However, it is not.

Cohabitation

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

The actual, civil marriage of a man and a woman is not regulated by the norms of the RF IC and, even more so, does not give rise to mutual rights and obligations for the spouses. Their relationship can be called a mutual partnership. People can live together for a long time, have common property and children together, 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 separate and begin to live in separate living spaces, 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 dissolution of the marriage 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 common-law husband, who is the father of their common child, leaves 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 between mom and dad are equal and are secured by the RF IC.

Restrictions and prohibitions for registration

There aren't very many of them. Usually, a civil marriage means a mutual decision to conduct a common household in an official manner. The decision should be made by the bride and groom without pressure or threats. Otherwise, registration can be cancelled. Today, actual marriage has no restrictions. But not everyone is allowed to go civilian. It is necessary to remember the following features of registration at the registry office:

• Applicants can only be adults. In some cases (most often when the bride is pregnant), marriage is permitted from the age of 16.
• The decision to paint can only be made independently. This is a mutual decision of the future spouses.
• You cannot marry close relatives. Consanguinity is a barrier to registration.
• Only legally capable persons can participate in the process.
• A wedding in Russia is held between a man and a woman. Same-sex marriage is prohibited in the country.

In principle, any adequate couple who has reached the age of majority can apply to the registry office to formalize the relationship. But people with non-traditional sexual orientation in Russia will have to be content with cohabitation.

As it was before

The concept of de facto marriage was known in Russia back in 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 de facto union of a woman with a man to an official marriage. This was necessary in order to protect representatives of the fair half of humanity and the rights of their children. However, when dividing 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 purpose, witnesses were invited, correspondence and other documents were examined.

In 1944, according to the Decree of the Presidium of the Supreme Council, informal marriage relations 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 living together before registering the marriage.

PROBLEMS OF LEGAL REGULATION OF ACTUAL MARRIAGE RELATIONS

PROBLEMS OF LEGAL REGULATION OF ACTUAL MARRIAGE RELATIONS

Farmanli Orhan

Russian Economic University named after GV Plekhanova

Annotation:

This paper examines the main problems of legal regulation of relations between citizens of different sexes, which are called “de facto marital relations.” The issue of property relations, as well as material support for citizens who are in actual marital relations, is being studied. The conclusion is stated regarding the essence of de facto marriage relations, since in modern times this type of relationship occupies an important place in society, as well as in the institution of the family, since every year an increasing number of citizens prefer to be in de facto marriage rather than in an officially registered marriage. This type of relationship has become widespread in Russia, as well as in foreign countries; for this reason, legislation must comply with modern trends.

Key words: actual marital relations; family; cohabitation; property relations; marriage; society; state.

Annotation:

In this article, the main problems of legal regulation of relations between heterosexual citizens, which are called “actually marital relations”, are being studied. The issue of property relations is being studied, as well as material support of citizens, who are actually married. The conclusion is made about the essence of the actual marriage relations, because in modern times this type of relationship occupies an important place in society, as well as in the family institution, as annually more and more citizens prefer to be in actual marriage than in officially registered marriage. This type of relationship has become widespread in Russia, as well as in foreign countries, for this reason, legislation should be in line with current trends.

Key words: actual marital relations; a family; cohabitation; property relations; marriage; society; state.

Introduction

Family relations are the main institution of family law. Divorces, conflicts and disputes during the division of property provoke the fact that non-property and material aspects of family legal relations intersect and interact, generating significant interest on the part of specialists, researchers, and science in general.

In marriage and family relations between citizens of different sexes, all kinds of problems constantly arise that require solutions, however, finding solutions to these problems is problematic if marriage relations are actual, which justifies the relevance and feasibility of studying the legal regulation of actual marriage relations.

The regulation of actual marital relations must be carried out based on the same principles as in the regulation of marriage and family relations, that is, equality of cohabitants, the possibility of resolving intrafamily conflicts and problems by mutual consent, concern for the welfare and development of the family, protection of the rights and interests of cohabitants, as well as minors. Childhood and motherhood, as well as family relationships, are protected by the state; for this reason, even if parents are actually married, they have rights and responsibilities in relation to children, since this type of relationship does not relieve them of responsibility.

The basis for the study of legal regulation of actual marital relations is scientific methods, which include comparative legal, legal, psychological, social, comparative and historical methods, which allow studying the problems of legal regulation from various angles and positions.

The novelty of the research determines the acquisition of new knowledge through an analysis of the current state and problems of legal regulation of actual marital relations of opposite-sex citizens of the Russian Federation.

It is worth noting that this issue was studied by: Geller M.V., Afanasyeva I.V., Kosareva I.A., Malkin O.Yu., Chigrina E.V., Myskin A.V. and others. With the help of these lawyers, many problems in terminating a de facto marriage were resolved, and a scientific base was formed that made it possible to improve legislation on this issue.

Legal regulation of de facto marital relations: problems and background to their occurrence

In the Soviet Union, the first regulations appeared for the first time, which included the Code of Laws on Civil Status, Marriage, Family and Guardianship Law, which contained standard information and legal regulation of marriage and family relations [6]. The legislative power at that time understood the need to introduce reforms, but the opposition of marriage to church unions in itself excluded the possibility of introducing reforms that would allow regulating actual marriage relations, as well as giving them legal force. According to E.V. Chigrina, who bases her work on the statement of G.M. Sverdlov, the recognition of de facto marital relations in the constant struggle for civil marriages could also mean the recognition of church unions, which was contrary to the goals of the Soviet government [11]. There were also contradictions between the rules of law and true reality, which were noted in judicial practice when studying cases of division of property acquired in the process of actual marriage relations. It is worth noting that the courts in most cases used the regime of joint family property [11].

Nowadays, the number of actual marriages has increased noticeably, for this reason in the media this type of relationship has come to be called a “civil marriage”, in which citizens live together, run a household, take care of a child, but for various reasons do not want to officially register the marriage. If we consider actual marriage relations from the perspective of current family legislation, then cohabitation is not recognized by the state in the form of marriage with the ensuing consequences. Such conclusions are formed based on the Family Code of the Russian Federation, which notes the priority foundations of the state’s family legislation [8]. It can be concluded that the main principle of recognition of marriage relations by the state is the formalization of relations in the established order, which represents the basis of family law, as well as other areas of law (civil, housing, inheritance).

In modern times, marital relations are actually marital relations that do not consist of registering a marriage in the registry office. Numerous studies show that society has not formed specific ideas about the essence of actual marriage (civil marriage) [5, P.63].

As time passes, legislation is reformed, as well as changes in the situation in the country, which makes adjustments to the long-standing situation. Nowadays there are many couples who want to start a family; they need to have the right to be legal spouses. However, in Russia there are no opportunities for this, so citizens can go to foreign countries where there are separate laws regulating actual marriages.

Statistical studies in the United States of America have shown that young people are more likely to be in de facto marriage relationships, since many citizens believe that formal marriage strengthens relationships. Young people under the age of 21 are in de facto marital relationships. It is worth emphasizing that no more than 7% of young people who live together are in this category. Americans over the age of 29 account for no more than 15% of citizens who are in actual marital relationships [3, pp. 19-25].

“Civil marriage”, that is, cohabitation, is an institution known since Ancient Rome, which in modern times is regulated only in some countries, which include Norway, Belgium, France, Portugal, Sweden [3, pp. 19-25]. A significant proportion of countries recognize family relationships between citizens, since they are given a legal nature, and they also comply with regulatory rules on marriage registration. As N.N. Tarusina believes, in fact, marital relations in modern times are unreasonably subject to discrimination [9, P.36], since in fact, marital relations are deprived of the need for formal measures in the event of a breakup, and are also easy, not burdensome, but no less strong than registered marriage [9, P.48].

According to some experts, it is erroneous to regularly use the concept “actually marriage relationship” instead of the term “cohabitation”, since a civil marriage is one that is legally registered in the registry office. However, the concept of “cohabitation”, due to its sound, has not been consolidated; for this reason, many citizens and specialists often use the concept of “civil marriage” or “actual marriage” [2, pp. 100-105].

The essence of marriage lies in the moral, legal, psychological responsibility of citizens to each other, for this reason it is indisputable that a registered marriage is more convenient than actual marital relations, and equating actual marital relations with a registered marriage is difficult.

In today’s society, in fact, marriage relationships are an accessible and suitable opportunity for citizens to “experience each other’s feelings”, gaining the experience of living together, determining the level of compatibility with a cohabitant, while being in an independent and independent relationship. For this reason, many citizens choose de facto marriage relationships that do not require official registration, which seems quite justified.

It can be noted that at the initial stage of a relationship, “civil marriage” allows you to protect citizens from unexpected and sometimes hasty actions, providing the opportunity to make choices and make the right decisions, while maintaining freedom and independence in certain aspects.

As some psychologists believe, a positive point is the period of 2 to 3 years, during which the marriage relationship actually lasts [7, pp. 5-9]. This period is enough for partners to decide on their wishes, get to know each other in everyday life, and experience certain problems, difficulties and pleasant moments together, which will allow them to move on to another phase of the relationship, that is, to legalize the marriage.

For these reasons, in fact, marital relations are studied as a possible phase that precedes the conclusion of an official marriage. It should be noted that in a de facto marital relationship, convenience is an end in itself, thus, any problems arising between cohabitants are a cause for doubt. For this reason, de facto marital relationships largely involve the psychological unwillingness of cohabitants to accept responsibility for the family, children, the impossibility or inability to be in strong, close relationships, as well as the inability to cope with the difficulties and problems that often arise in family relationships. The conclusion of an official marriage is required in cases where citizens wish to regulate the legal aspect of the relationship, however, in this case, psychological aspects are also affected [10, pp. 21-29].

The current family legislation of the Russian Federation does not actually recognize marital relations. According to Albikov I.R., given the increase in the number of families who live in de facto marital relations, it is necessary to bring domestic legislation in accordance with modern trends, that is, recognition of de facto marital relations. It is necessary to secure the rights of cohabitants to enter into marriage agreements that would provide for their property rights. In addition, it is necessary to determine the rights of cohabitants as heirs of property that was acquired during the period of de facto marital relations with the testator, taking into account that these rights are granted to him based on concluded agreements to enter into de facto marital relations [1, P.14-15] .

Modern family legislation of the Russian Federation regulates property relations between spouses, but these laws do not actually affect marital relations. According to Albikov I.R., in accordance with domestic legislation, citizens who are in de facto marital relations have ways to inherit property in certain cases [1, pp. 14-15]: based on a will, since testators have the right to dispose of their property at their own discretion , as well as when a cohabitant is recognized for inheritance as a disabled dependent [4, Art. 1148].

Touching upon the material assistance of cohabitants, it can be noted that both in the process of actual marital relations and at their completion, the law is on the side of a registered marriage. Many factors depend on the moral qualities of citizens who are in a de facto marital relationship, which does not guarantee the ability to avoid various conflict situations and troubles.

We can conclude that in fact marital relationships are citizens who are responsible, and this type of relationship is completely based on mutual trust. However, there are often cases when a marriage relationship actually ends in a break, which provokes the formation of unpleasant situations, conflicts, and attempts to divide jointly acquired property.

Marriage and family relations can be classified as phenomena whose relevance has not decreased from the moment of their formation to modern times, since these relationships are diverse and significant in the lives of citizens and society as a whole. It is worth noting that for this reason, studying the specifics and problems of actual marital relations is advisable, since the study provides the opportunity to draw conclusions about their nature, searching for solutions to many problems.

List of references

1. Albikov I. R. Protection of the rights and interests of persons in de facto marital relationships: problems and legal features of their resolution / I. R. Albikov // Family and housing law. — 2015. — No. 2. — P. 14-15

2. Bogdanova L.P. Civil marriage in the modern demographic situation / L.P. Bogdanova, A.S. Shchukina // Sociological studies. - 2003. - No. 7. - P. 100-105.

3. Borminskaya D. New trends in the development of family law: extramarital unions on the example of individual European countries / D. Borminskaya // Family and housing law. — 2007. — No. 2. — P. 19-25

4. Civil Code of the Russian Federation//M.: Stout, 2021 – 265 p.

5. Ilyina O. Yu. Marriage as a form of state recognition of relations between a man and a woman / O. Yu. Ilyina // Family and housing law. — 2006. — No. 4. — P. 28-35

6. Code of laws on acts of civil status, marriage, family and guardianship law of September 16, 1918 // Collection of legislation of the All-Russian Central Executive Committee - 1918

7. Rumyantseva N. S. Property rights of spouses in a civil marriage / N. S. Rumyantseva // Family and housing law. - 2009. - No. 3. - P. 5-9.

8. Family Code of the Russian Federation//M.: Yurayt, 2021 – 283 p.

9. Tarusina N. N. Family law / N. N. Tarusina. - M.: Prospekt, 2001. - 144 p.

10. Tolstaya A. D. Actual marriage: prospects for legal development / A. D. Tolstaya // Law. —2005. - No. 10. - P. 21-29

11. Chigrina E.V. On the problems of regulating de facto marital relations. Article/News of BSU, 2015 – P.1108-1113

List of literature sources

1. Albikov IR Protection of the rights and interests of persons in actual marital relations: problems and legal features of their resolution / IR Albikov // Family and Housing Law. - 2015. - No. 2. - P. 14-15

2. Bogdanova LP Civil marriage in the modern demographic situation / LP Bogdanova, AS Shchukina // Sociological research. - 2003. - No. 7. - P. 100-105.

3. Borminskaya D. New tendencies in the development of family law: extra-marital unions on the example of individual European countries / D. Borminskaya // Family and Housing Law. - 2007. - No. 2. - P. 19-25

4. The Civil Code of the Russian Federation // M .: Stout, 2016 - 265 p.

5. Ilyina O. Yu. Marriage as a form of state recognition of relations between a man and a woman / O. Yu. Il'ina // Family and Housing Law. - 2006. - No. 4. - P. 28-35

6. The Code of Acts on Civil Status, Marriage, Family and Guardianship Law of 09/16/1918 // Collected Legislation of the All-Russian Central Executive Committee - 1918

7. Rumyantseva NS Property rights of spouses in a civil marriage / NS Rumyantseva // Family and Housing Law. - 2009. - No. 3. - P. 5-9.

8. Family Code of the Russian Federation // M .: Yurayt, 2021 - 283 p.

9. Tarusina NN Family law / NN Tarusina. - Moscow: Prospekt, 2001. - 144 p.

10. Tolstaya AD Actual marriage: the prospects of legal development / AD Tolstaya // Law. - 2005. - No. 10. - P. 21-29

11. Chigrina EV On the problems of regulating the actual marriage relations. Article / News of BSU, 2015- P.1108-1113

Children's situation

Babies born in a de facto marriage have the same rights as those born in an official union. But for this it is necessary for the child’s father to acknowledge his paternity and write a statement to the registry office. Otherwise, the baby’s mother will be considered a single mother, since the people’s marriage was not officially registered.

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

Due to such problems that may arise in the future, many women do not want to enter into an actual marriage. Children born in an unofficial union are deprived of the opportunity to live in a full-fledged family and receive support from their father, especially if the latter turned out to be not a very decent person and refused to recognize and formalize his paternity.

Introducing the concept of “de facto marriage” into legislation

For several years now, there has been information in the media that it is planned to introduce changes to the legislation of the Russian Federation, which should equate civil and de facto marriage, giving them equal legal force. These rumors have become so widespread that sometimes this fact is spoken of as having already happened. But in fact, this bill has not even been submitted for consideration, and, as many legal figures believe, this is extremely correct. Otherwise, the country will have to almost completely change the Family Code. And this, in turn, will create confusion and lead to new lawsuits and the creation of precedents in legal practice.

Confession

An actual marriage has certain characteristic features. In this case, people must live together as a family, have a common life, budget, children and run a joint household. In addition, over the years they live together, people acquire things and valuables, real estate.

Accordingly, recognition of a marriage as factual 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 necessarily have to have children. After all, many citizens living in a registered marriage do not try to continue their family line for various reasons.

Actual marriage: definition

A de facto marriage, or cohabitation, is a marital relationship between two people that is not legally formalized in any way. Legally, this form of cohabitation is not recognized, it is not in the legislation on family and marriage, therefore partners do not bear any material, moral or other obligations to each other. In the event of separation, each partner retains the property registered in his name, and things acquired jointly cannot become the subject of legal proceedings.

Property

What to do with common valuables if a man and woman decide to end their informal relationship and break up? This question is asked by many people who find themselves in a 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 spouse 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 the husband and wife, then during the period of cohabitation it belongs only to the person to whom it is registered.

Example

The young people met and after some time decided to live together. They were in no hurry to formalize the relationship. However, during the actual cohabitation, the man purchased a new car with the money of his common-law wife, which he registered in his name. Two years later, the couple separated, and the ex-wife decided that she had every right to return 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

Legal and actual marriages have certain similarities. They manifest themselves 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 similarities end. Now let's list the differences. The moment children are born in a legal marriage, they are automatically assigned the surname and patronymic of their father. The same cannot be said about a child who was born into an unregistered union. After all, the fact of his origin from his mother’s common-law husband must be officially confirmed by 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.

Property acquired during a formal union is the common property of the spouses, and upon divorce it will be divided in half. But things purchased during the actual marriage are considered the property of the person who purchased them.

Civil marriage: formulation and history

Are the concepts of “actual marriage” and “civil marriage” identical? Not at all. Very often, citizens’ ignorance of legal issues leads to great difficulties, because a civil marriage is a relationship that is formalized in accordance with the law in government bodies. Moreover, the church does not take any part in this. That is, all marriages concluded in the registry office are considered civil. Where did this wording come from?

It’s simple - in pre-revolutionary Russia, all marriages could only be registered by the church, but the overthrow of the tsarist regime brought its own changes to this area of ​​human life. Now the communists did not have the right to believe in God and turn to the clergy, so new governing bodies were invented that could register marital relations between citizens of the country. As a result, civil marriage was replaced by church marriage, which was gradually completely ousted from the life of society until the nineties of the last century.

What's better

Many women only want to be legal wives and therefore do not even allow the thought of living with a man without registering their marriage. 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 the best solution for them is to register the relationship right away than to live without registration and not have any rights. Men think a little differently, especially since the stamp in the passport has never kept any of them with an unloved partner. They do not want to immediately cement an alliance with a woman and lose their freedom, preferring first to “live together and test their feelings.”