Responsibility under family law. Examples of offenses and liability for them.

Legal basis of marriage and family relations

The legal basis for marriage and family relations is the Constitution and the Constitution adopted in accordance with it.

According to Art. 38 of the Constitution, motherhood and childhood, the family are under the protection of the state. Caring for children and raising them is an equal right and responsibility of parents. Able-bodied children over 18 years of age must take care of disabled parents. In addition, Art. 72 (clause "k" part 1) of the Constitution refers family legislation to the joint jurisdiction of the Russian Federation and its constituent entities, which means the possibility for constituent entities of the Russian Federation to adopt their acts in the field of marriage and family relations on issues permitted by the IC.

Article 1 of the IC “goes further” than the Constitution and establishes that not only motherhood, childhood and family, but also paternity are under the protection of the state. Family legislation is based on the need to strengthen the family, build family relationships on feelings of mutual love and respect, mutual assistance and responsibility to the family of all its members, the inadmissibility of arbitrary interference by anyone in family affairs, ensuring the unhindered exercise by family members of their rights, the possibility of judicial protection of these rights . The regulation of family relations is carried out in accordance with the principles of voluntariness of a marriage between a man and a woman, equality of rights of spouses in the family, resolution of intrafamily issues by mutual agreement, priority of family education of children, concern for their welfare and development, ensuring priority protection of the rights and interests of minors and disabled members families. Any form of restriction of the rights of citizens upon marriage and in family relationships on the basis of social, racial, national, linguistic or religious affiliation is prohibited.

In accordance with Art. 2 of the Family Code, family legislation establishes the conditions and procedure for marriage, termination of marriage and recognition of its invalidity, regulates personal non-property and property relations between family members: spouses, parents and children (adoptive parents and adopted children), and in cases and within the limits provided for by family law, between other relatives and other persons, and also determines the forms and procedure for placing children left without parental care into the family.

As you can see, the legal regulation of marriage and family relations, to a greater extent than the regulation of other social relations, is based on moral norms. They are regulated by family law and therefore can be called simply family.

It should be noted that there is no definition of the concept of “family” in the UK, which is an obvious gap. The definition of this concept is contained in Art. 1 of the Federal Law of October 24, 1997 No. 134-FZ “On the subsistence level in the Russian Federation” (as amended on May 27, 2000)1, according to which a family is persons related by kinship and (or) property, jointly living and running a joint household.

Topic 1 Concept, subject, method and principles of family law

Subject

Family law, in accordance with the Family Code, is to establish the conditions and procedure for marriage, termination of marriage, and recognition of it as invalid. Family law regulates personal non-property and property relations between spouses[2], parents and children, to whom adopted children and adoptive parents are equated, and in cases and within the limits provided for by family law, between other relatives and other persons. Moreover, the regulation of such legal relations in relation to these other persons (for example, stepsons, stepdaughters, stepfathers, stepmothers, actual educators, etc.) does not apply to all property and personal non-property relations, but only to those that are directly provided for by family law[3].

Family law also determines the forms and procedure for placing children without parental care in a family[4], as well as other forms of placing children who, for one reason or another, find themselves unattended (for example, transfer to guardianship, trusteeship, foster care, etc.). P.).

A special feature of the subject of family law is the priority nature of personal relationships. The personal nature is due to the fact that the relationship is associated with procreation, raising children, the rights and responsibilities of husband and wife, parents and children, and other relatives. It is the family itself that, first of all, solves the social (primarily material support) and moral problems of its members. Personal relations in marriage also predetermine the property regime: marriage creates the opportunity to form the property of the spouses and dispose of it both legally and on a contractual basis. Material support for spouses and former spouses, children and parents is possible both on a legal and contractual basis, and the possibility of alimony maintenance and the share of property during its division depends on the moral behavior of the spouse in marriage, the proper performance of parental responsibilities, etc. In the field of personal relationships, law determines only the external boundaries of their beginning and completion: conditions for marriage and its dissolution, establishment of paternity, adoption, etc. Personal non-property rights of spouses are classified as “imaginary rights”[5] (for example, the right to mutual love and respect), since the legislation does not know not only how to enforce them, but also the general boundaries of the exercise of such rights.

A feature of family law is the possibility of applying to family relations the norms of law of other branches of law, in addition to the IC, for example civil, civil procedural law, social security, labor, housing, etc., but above all the possibility of subsidiary application of civil legislation to regulate relations between members families, which is directly related to the expansion of contractual principles in family law. The specificity of family law is also the existence in it of certain elements of publicity: state intervention is manifested in the protection of minors and incompetents; state registration of the beginning and end of family and marriage relations, conclusion of marriage and other contracts.

Thus, family law, being an independent branch, is at the intersection of public law and private law regulation, which determines the specifics of this branch of law when resolving legal conflicts in this area. Family law does not contain clear criteria on the basis of which it would be possible to distinguish family relations from relations regulated by other branches of law, and especially civil law. Such fundamental concepts as legal capacity, property, property rights, contract, transaction, conditions of their validity (invalidity), etc., are determined by the Civil Code. It does not directly speak anywhere about the regulation of family relations by civil law, but Art. 2 of the Civil Code indicates that civil law regulates “other property and personal non-property relations based on equality, autonomy of will and property independence of their participants” (spouses, for example, fully fall under this provision). Article 4 of the Family Code, in turn, speaks of the application of civil law to family relations not regulated by family law, but the lack of a material criterion for such a distinction creates certain difficulties in law enforcement.

Family legislation does not contain a legislative definition of the concepts “family”, “family members”, “woman-mother”, “marriage”, “surrogacy”, etc.

In particular, the Housing Code of the Russian Federation and such federal laws as “On the Status of Military Personnel”[6] and “On the Living Wage” interpret this concept differently depending on the goals pursued. The Criminal Procedure Code contains certain privileges for family members and relatives of the accused or victim. In the legal literature on criminal law, the prevailing point of view is that persons close to the victim include relatives, friends, “persons whose fate is not indifferent to the victim (due to existing personal relationships, they are equated to close relatives)” [7].

The lack of a clear interpretation of the fundamental terms was associated with the request of the Kostroma Regional Duma to the Constitutional Court of the Russian Federation. The Kostroma Regional Duma asked for an interpretation of the concept of “family” contained in Art. 38 (part 1) of the Constitution of the Russian Federation, according to which motherhood, childhood and family are under the protection of the state.

The Constitutional Court of the Russian Federation determined: “Refuse to accept for consideration the request of the Kostroma Regional Duma, since the resolution of the issue raised in it is not within the jurisdiction of the Constitutional Court of the Russian Federation”[8]. The concept of “family member” is not universal, so from time to time the Supreme Court is forced to give appropriate clarification on this matter[9].

In Art. 2 of the Law of St. Petersburg “On social support for families with children” (2004) gives the following concept of family and its categories:

♦ family

– parents (legal representatives) and children living together and running a common household;

♦ low-income family

– a family with an average per capita income below the subsistence level established in St. Petersburg;

♦ the large family

– parents with three or more minor children living together and running a common household;

♦ single-parent family

– a family in which the only parent has the status of a single mother or one of the parents has died.

Thus, there is no unambiguous definition of the concepts “family” and “family members”. Their definition depends on specific relations that are regulated by a certain law, which introduces confusion into the regulation of relevant legal relations. But based on the analysis of the articles of the UK, the following definition can be derived.

A family is an association of persons, usually living together, bound by mutual rights and obligations arising from a marriage registered with the registry office, from relationships of kinship, property, adoption or other form of placing children in a family.

In the legal literature, there is also the following definition of family: a family is usually understood as an association of persons based on marriage or kinship, connected by personal and property rights and obligations, moral and material community, mutual support, raising children, and running a common household.

The family is an incomparable social organism that satisfies a whole range of pressing human needs (in the birth and upbringing of children, spiritual communication, mutual moral and material support for family members, etc.). Despite the fact that the IC does not contain a decoding of the basic concepts of family law, the latter is an independent sub-branch of civil law.

Relationships governed by family law are called family relationships.

Their feature is the following:

♦ arising from special legal facts specified in the law, and not by agreement (for example, only registration of marriage gives rise to legal consequences in the form of establishing family relations);

♦ ongoing nature (marriage, parental relationship, pregnancy, alimony obligations, etc.);

♦ strictly personal in nature (they are closely related to certain entities, inalienable and do not allow succession (in marriage, parenthood, etc.));

♦ gratuitous nature.

Family law belongs to the category of branches of private law[10]. In family law, there are two main methods of legal regulation – imperative and dispositive. Method

regulation of family relations are predominantly imperative norms[11], which is explained by the presence of actual inequality and dependence in the family (children, non-working spouse, elderly relatives, etc.). But at the same time, wherever possible, the legislator has established dispositive norms: subjects of family law are given the right to draw up various agreements (for example, alimony), spouses have the right to enter into various transactions with each other, etc. In general, the method of family law can be characterized as dispositive, preserving a significant number of imperative norms.

There are fundamental differences between family law and civil law. First of all, they lie in the subject composition. Thus, only individuals can be subjects of family law (both legal entities and the state participate in civil law); Moreover, special requirements are also imposed on these subjects - for example, only persons of different sexes can enter into marriage (in civil law, gender is not considered as a condition for concluding a contract or agreement). In resolving some legal situations (adoption, guardianship, guardianship, divorce, etc.), the social characteristics of a person play a key role. Important principles for the emergence and existence of family relationships are trust, love, respect and other emotional signs, while in civil law it does not matter what kind of feelings, for example, a creditor has for his debtor (and vice versa). Moreover, the basis of family relations is precisely moral, personal needs, and the subject enters into civil relations, pursuing primarily economic gain; damage caused by one subject of family law to another cannot be assessed in monetary terms, or a penalty can be calculated (exceptions include compensation for moral damage to a conscientious spouse in the event of a marriage being declared invalid and a penalty for late payment of alimony), whereas in civil law such methods of compensation for damage or failure to fulfill a contract - a common practice. In general, one global difference can be noted between family and civil law - the dominance of personal, non-property relations over property, their dominant role in family relations.

To the principles

(fundamental institutions, guidelines) of family law include the following:

♦ recognition in the Russian Federation only of marriages registered with the civil registry office;

♦ priority of family education of children;

♦ voluntariness of a marriage between a man and a woman (the right of every man and every woman to choose a wife or husband, respectively, at their own discretion) (this principle also implies the possibility of freedom of divorce either at the request of both spouses or at the request of only one of them);

♦ resolution of intra-family issues by mutual agreement (expenditure of the spouses’ common funds; possession, use and disposal of common property; conclusion by the spouses of a marriage contract establishing the contractual regime of their property, or an agreement on the payment of alimony for the maintenance of a needy disabled spouse; the procedure for each spouse to bear family expenses ; choice of educational institution and form of education for children, etc.);

♦ judicial protection of family rights (any dispute related to violations of family rights and legitimate interests, at the request of interested parties, is subject to consideration and resolution by the court). Mandatory state support for family, motherhood, paternity and childhood is important in the implementation of the principles of family law. The rights of citizens in the family can be limited only on the basis of federal law and only to the extent necessary in order to protect the morals, health, rights and legitimate interests of family members and other citizens (clause 4 of article 1 of the Family Code). This norm guarantees protection against arbitrary infringement of family rights by both individual citizens and government agencies. At the same time, health protection means protecting not only the physical, but also the spiritual health of family members, especially children (protection from the propaganda of violence, cruelty, sex, pornography, etc.). The concept of morality is the observance by citizens of existing principles and rules of behavior. As for family rights and legitimate interests of family members, their content is enshrined in the norms of the Family Code (for example, according to Article 73 of the Family Code, the court may, taking into account the interests of the child, decide to take the child away from the parents (one of them) without depriving them of parental rights (then there is a restriction of parental rights); paragraph 4 of Article 66 of the Family Code gives the right to educational, medical institutions and social protection institutions to refuse to provide information about him to a parent living separately from the child if there is a threat to the life and health of the child from this parent) .

Rights and responsibilities of spouses

The rights and obligations of spouses are closely interrelated and can be divided into two large groups: personal and alimony.

The basic personal rights of spouses include equality in the family and the right to choose a surname.

In accordance with Art. 31 of the Family Code, each spouse is free to choose his or her occupation, profession, place of stay and residence. Issues of motherhood, paternity, upbringing, education of children and other issues of family life are resolved by spouses jointly based on the principle of equality of spouses. Spouses are obliged to build their family relationships on the basis of mutual respect and mutual assistance, promote the well-being and strengthening of the family, and take care of the well-being and development of their children.

At the time of marriage, spouses, at their own discretion, choose the surname of one of them as a common surname, or each spouse retains their premarital surname, or, unless otherwise provided by the laws of the constituent entities of the Russian Federation, adds the surname of the other spouse to their surname (with a hyphen), as a result which makes the surname double (two words). The combination of surnames is not allowed if the premarital surname of at least one of the spouses is double. A change of surname by one of the spouses does not entail a change of surname of the other spouse. In the event of divorce, spouses have the right to retain their common surname or restore their premarital surnames (Article 32 of the Family Code).

In addition, persons entering into marriage, as well as spouses, have the right to enter into a prenuptial agreement, that is, an agreement defining the rights and obligations of the spouses in the marriage and (or) in the event of its dissolution.

Alimony rights and obligations of spouses are provided for in Chapter 14 of the Family Code. According to Art. 89 of the Family Code, spouses are obliged to financially support each other. In the event of refusal of such support and the absence of an agreement between the spouses on the payment of alimony, the following have the right to demand the provision of alimony in court from the other spouse who has the necessary means for this:

• disabled needy spouse;
• wife during pregnancy and for three years from the date of birth of a common child;
• a needy spouse caring for a common disabled child until the child reaches the age of eighteen or a common disabled child from childhood of group I.

In accordance with Art. 90 of the Family Code, the right to demand the provision of alimony in court from a former spouse who has the necessary means for this, has:

• ex-wife during pregnancy and within three years from the date of birth of their common child;
• a needy ex-spouse caring for a common disabled child until the child reaches the age of eighteen or a common disabled child from childhood of group I;
• a disabled, needy ex-spouse who became disabled before the dissolution of the marriage or within a year from the date of dissolution of the marriage;
• a needy spouse who has reached retirement age no later than five years from the date of divorce, if the spouses have been married for a long time. The IC does not determine the duration of a long-term marriage.

Rights and responsibilities of parents

The rights and responsibilities of parents are based on the origin of the children, the establishment of paternity and maternity, and are closely interrelated.

Parents have equal rights and bear equal responsibilities towards their children (parental rights). Parental rights are terminated when children reach the age of eighteen (the age of majority), when minor children marry and in other cases established by law (Civil Code) when children acquire full legal capacity before they reach adulthood (Article 61 of the Family Code).

Minor parents also have parental rights. In accordance with Art. 62 of the Family Code, minor parents have the right to live together with the child and participate in his upbringing. Unmarried minor parents, in the event of the birth of a child and when their maternity and (or) paternity are established, have the right to independently exercise parental rights upon reaching the age of sixteen. Until the minor parents reach the age of sixteen, the child may be appointed a guardian who will raise him or her together with the child’s minor parents. Disagreements arising between the child's guardian and minor parents are resolved by the guardianship and trusteeship authority. Minor parents have the right to recognize and challenge their paternity and maternity on a general basis, and also to demand that paternity of their children be established in court upon reaching the age of fourteen.

When exercising parental rights, parents do not have the right to cause harm to the physical and mental health of children or their moral development. Methods of raising children must exclude neglectful, cruel, rude, degrading treatment, insult or exploitation of children.

Parents have the right and responsibility to raise their children. They are obliged to take care of the health, physical, mental, spiritual and moral development of their children. Parents have a priority right to raise their children over all other persons and are obliged to ensure that their children receive basic general education. Parents, taking into account the opinions of their children, have the right to choose an educational institution and the form of education for their children until their children receive basic general education (Article 63 of the Family Code).

A parent living separately from the child has the right to communicate with the child, participate in his upbringing and resolve issues regarding the child’s education, and the right to receive information about his child from educational institutions, medical institutions, social welfare institutions and other similar institutions. The provision of information may be refused only if there is a threat to the life and health of the child on the part of the parent. The parent with whom the child lives should not interfere with the child’s communication with the other parent, if such communication does not harm the child’s physical and mental health or his moral development.

Parents have the right to demand the return of the child from any person who holds him or her not on the basis of the law or on the basis of a court decision. In the event of a dispute, parents have the right to go to court to protect their rights (Article 68 of the Family Code).

Parents are obliged to support their minor children, as well as disabled adult children. The procedure and form of providing maintenance to children are determined by the parents independently. If parents do not provide maintenance for their children, funds for the maintenance of minor children (alimony) are collected from the parents in court.

Based on Art. 69 of the Family Code, parents (one of them) may be deprived of parental rights if they:

• evade the fulfillment of parental responsibilities, including malicious evasion of child support payments;
• refuse, without good reason, to take their child from a maternity hospital (ward) or from another medical institution, educational institution, social welfare institution or other similar institutions;
• abuse their parental rights;
• children are cruelly treated, including physical or mental violence against them, and attacks on their sexual integrity;
• are patients with chronic alcoholism or drug addiction;
• committed an intentional crime against the life or health of their children or against the life or health of their spouse.

Deprivation of parental rights is carried out in court. Parents deprived of parental rights lose all rights based on the fact of relationship with the child in respect of whom they were deprived of parental rights. Deprivation of parental rights does not relieve parents from the obligation to support their child.

Parents (one of them) can be restored to parental rights in cases where they have changed their behavior, lifestyle and (or) attitude towards raising a child. Restoration of parental rights is carried out in court at the request of a parent deprived of parental rights (Article 72 of the Family Code).

Family legal liability is the application of coercive measures to the guilty offender that have an additional negative impact on his personal or property sphere in the form of depriving him of certain family rights or imposing additional responsibilities on him. The specificity of family legal responsibility lies in the fact that, firstly, its subjects are connected by an already established family legal relationship, and, secondly, third parties who are not involved in this legal relationship cannot be involved in it. The grounds for family law liability depend on what area of ​​the injured person, personal or property, was affected as a result of the offense. In the first case, family legal liability occurs in the presence of three conditions: - the fact of violation of family law or failure to fulfill family obligations; — illegality of behavior (actions, inactions) of the offender. It is understood as a violation of the norms of objective law or subjective rights of another participant in a family legal relationship. Behavior that violates moral standards is illegal if there is a direct indication of this in the law; - the guilt of the offender, which manifests itself in two forms: intent and negligence. Family law does not indicate the forms of guilt, but in practice they play an important role, especially when determining the scope of responsibility. For example, deprivation of parental rights as a measure of liability for evasion of parental responsibilities (Article 69 of the RF IC) occurs when a parent fails to fulfill the duties of raising and educating children and protecting their rights. This behavior is contrary to Art. Art. 63 and 64 of the RF IC, which indicates the illegality of the behavior. Parents can be deprived of parental rights only if they behave guilty. In the second case, for the onset of family legal liability, in addition to the three conditions listed, the following are necessary: ​​- the fact of harm to the injured person; — a cause-and-effect relationship between this fact and the behavior of the offender. Thus, liability for late payment of alimony (Clause 2 of Article 115 of the RF IC) occurs when alimony is not paid on time, which contradicts Art. 81 IC RF. In this case, there must be a fact of existence of arrears in payment, the fault of the alimony-obliged person in its formation, and a cause-and-effect relationship between the fact of the existence of arrears and the fact of non-payment of alimony on time. Forms of family legal responsibility include: 1. Compensation for damages, which include only actual damage. This is due to the fact that recovery of lost profits is contrary to the essence of family relations. After all, they are not based on such a goal as making a profit. The Family Code of the Russian Federation does not have a definition of the concept of “real damage”, therefore, by virtue of Art. 4 of the RF IC is subject to the application of clause 2 of Art. 15 Civil Code of the Russian Federation. So, real damage is the expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property. When determining damages, the prices that existed in the place where the obligation was to be fulfilled are taken into account on the day the debtor voluntarily satisfied the creditor's claim, and if the claim was not voluntarily satisfied, on the day the claim was filed. 2. Payment of the penalty. Penalty (fine, penalty) is a sum of money determined by law or contract that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in case of delay in fulfillment. For example, clause 2 of Art. 115 of the RF IC provides for a penalty in the amount of 0.1% of the amount of unpaid alimony for each day of delay. 3. Monetary compensation for moral damage. It applies if a citizen has suffered moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on other intangible benefits. When determining the amount of compensation for moral damage, the court takes into account the nature and degree of physical and moral suffering associated with the individual characteristics of the victim, as well as the degree of guilt of the offender and other circumstances worthy of attention. 4. Compensation for material damage in kind. This form of liability is regulated by civil law. According to paragraph 4 of Art. 30 of the RF IC, a conscientious spouse has the right to compensation for moral damage and compensation for material damage if the marriage is declared invalid. Yu. Bespalov makes a fair statement that: ... it is necessary to enshrine in the Family Code a rule providing for compensation for damage to the health of a child by parents and adoptive parents when satisfying a claim for deprivation of parental rights and cancellation of adoption. Currently the question is about compensation for harm. not being discussed. If the claim is satisfied, the court has the right only to collect alimony. This situation, I think, is unfair. The violated rights of the child remain not fully restored. In these cases, moral damage should also be subject to compensation, since the unlawful actions of parents and adoptive parents (leaving children without food, without warm clothes in the winter, mental violence, etc.) cause both physical and moral suffering to the child. 5. termination or change of legal relationship (Articles 71, 143, 152 of the RF IC). This includes deprivation of parental rights, cancellation of adoption, termination of the agreement on the transfer of children to a foster family. Liability measures are established not only by the legislator in regulatory legal acts, but also by the participants in family relations themselves in their agreements. As a rule, such methods of protection as compensation for losses, collection of penalties, and compensation for moral damage are used.

Rights and responsibilities of children

In addition to the Family Code, children’s rights are also determined by the Federal Law of July 24, 1998 No. 124-FZ “On the Basic Guarantees of the Rights of the Child in the Russian Federation” (as amended on July 20, 2000)1. In accordance with these acts, a child is a person who has not reached the age of eighteen years (the age of majority).

Every child has the right to live and be raised in a family, as far as possible, the right to know his parents, the right to be cared for and live with them, except in cases where this is contrary to his interests. A child has the right to be raised by his parents, to ensure his interests, comprehensive development, and respect for his human dignity.

The child has the right to communicate with both parents, grandparents, brothers, sisters and other relatives. The dissolution of the parents' marriage, its recognition as invalid or the parents' separation do not affect the rights of the child.

If the parents live separately, the child has the right to communicate with each of them. A child has the right to communicate with his parents also if they live in different states.

The child has the right to protection of his rights and legitimate interests. The protection of the rights and legitimate interests of the child is carried out by parents (persons replacing them), and in some cases - by the guardianship and trusteeship authority, the prosecutor and the court. A minor, recognized in accordance with the law as fully capable before reaching the age of majority, has the right to independently exercise his rights and obligations, including the right to defense.

The child has the right to protection from abuse by parents (persons replacing them). In the event of a violation of the rights and legitimate interests of a child, including in the event of non-fulfillment or improper fulfillment by parents (one of them) of the responsibilities for raising, educating the child, or in the event of abuse of parental rights, the child has the right to independently apply for their protection to the guardianship and trusteeship authority (i.e. e. local government), and upon reaching the age of 14 - to the court (Article 56 of the Family Code).

In accordance with Art. 57 of the Family Code, a child has the right to express his opinion when deciding in the family any issue affecting his interests, as well as to be heard during any judicial or administrative proceedings. Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where this is contrary to his interests.

The child has the right to receive maintenance from his parents and other family members. A child has the right of ownership of income received by him, property received by him as a gift or by inheritance, as well as any other property acquired with the child’s funds (Article 60 of the Family Code).

A child in respect of whom the parents (one of them) are deprived of parental rights retains the right of ownership of residential premises or the right to use residential premises, and also retains property rights based on the fact of kinship with parents and other relatives, including the right to receive an inheritance (Article 71 SK).

Able-bodied children who have reached adulthood have the obligation to support and care for their disabled parents who need help. However, children may be released from the obligation to support their disabled parents in need of help if the court finds that the parents evaded their duties as parents. Children are exempt from paying alimony to parents deprived of parental rights (Article 87 of the Family Code).

Children born from unmarried persons have the same rights and obligations in relation to their parents as children born from married persons (Article 53 of the Family Code).