§ 2. Basic principles (principles) of family law

A family is a small unit of society, based on marriage or blood ties, whose members are connected by everyday life, mutual assistance and responsibility.

In general, the family in Russia is protected by the state. Legislation in this area is aimed at strengthening it and building relationships based on mutual respect and equality between spouses.

The country has a separate branch of law, enshrined in the Family Code, which spells out the features, concept and principles of family law, designates the persons who are its subjects, their powers and responsibilities in case of violation of duties.

Family law

As already mentioned, family law (concept, subject, principles) in Russia is enshrined in the ICRF. Based on this code, as well as federal laws and regulations of the constituent entities of the country, the basic principles and procedure for resolving various situations in the family are formed.

In cases where international treaties of Russia establish other rules different from those provided for by the country's legislation in the area in question, the rules of international treaties are applied.

Civil legislation may be applied to family relations in the part that is not regulated by family law.

If the procedure for such interaction is not fixed in any provision of the Code and is not reflected in the agreement of the parties, then the laws of the same sources, similar in content, are applied (analogy of the law). And in the absence of such legal norms, the basic principles of family law (or civil law), as well as the general principles of reasonableness, humanity and justice, are used.

Family law concept

Family law is a legal branch of the Russian Federation, the norms of which regulate family relations (of a property and non-property nature). This is a system that ensures and consolidates the order of relationships between people at the time of marriage, adoption and raising children. This right also determines the procedure for interaction between former spouses and relatives.

The concept and principles of family law, as well as all other provisions of the SKRF, reflect the essence of state influence on the family, assistance, and protection on its part to members of a given unit of society.

Subject and methods of family law

The subject of family law regulation is relations (property and non-property) arising within the family. According to the SKRF, these are:

The procedure and requirements for entering into legal marriage.
The procedure for terminating a marriage or declaring it invalid.
Personal relations between family members (property and non-property).
Types and procedures for placing children in need in families.

The method of family law is the techniques by which the legislator influences family relationships. These include mandatory and permissive methods. The former are mandatory and cannot be changed depending on the wishes of the subjects of family law (conditions for marriage, deprivation of parental rights), while the latter allow participants in the relationship to act in a certain way (the possibility of drawing up and signing a marriage contract, alimony agreement).

Concept and principles of family law. Lecture 8. Basics of family law

Lecture 8. Basics of family law

Family law is a set of government regulations directed to individuals seeking to start a family or establish family relationships.

The very concept of family is vague, and the Family Code does not define family, but family has its own distinctive features:

1) cohabitation of members;

2) community of property;

3) the presence of mutual rights and obligations of family members provided for by family law.

In accordance with Art. 2 of the Family Code of the Russian Federation, family relationships are conventionally divided into four main groups:

1) relations arising in connection with marriage, termination of marriage and recognition of marriage as invalid.

2) personal property and non-property relations between family members: spouses, parents and children (adoptive parents and adopted children);

3) personal non-property and property relations between other relatives and other persons in cases provided for by family law (grandparents, siblings, actual educators and pupils);

4) relations arising in connection with the determination of the forms and procedure for placing children left without parental care into the family (in the event of the death of parents, as well as in other cases of lack of parental care).

The subjects of family relations are: parents (persons replacing them); children (including adopted children); other relatives and other persons in cases directly provided for by the Family Code (grandfather, grandmother, siblings, etc.).

The basic principles of family law are enshrined in Art. 1 IC of the Russian Federation.

1. Recognition of a marriage concluded only in the registry office . The legal regulation of marriage relations in our country is carried out by the state. In accordance with current legislation, only marriages entered into at civil registry offices are recognized. The religious ceremony of marriage (wedding) and the actual marriage relationship have no legal significance and do not entail mutual rights and obligations of the spouses.

2. Voluntariness of a marriage - presupposes the free expression of the will of a man and a woman, which the spouses express twice: when submitting an application to the registry office and during the registration of marriage. To determine the authenticity of freedom of expression, marriage registration is carried out in the presence of both persons entering into marriage. Under Russian law, marriage in the absence of one of the parties or through a representative is not allowed.

3. Equality of spouses in the family. This principle is based on constitutional provisions on the equality of rights and freedoms of men and women, on the freedom to choose their place of stay and residence, occupation, and on the equality of rights and responsibilities of parents in relation to their minor children.

This principle is based on the personal, trusting nature of family relationships.

4. Resolution of intra-family issues by mutual agreement. This principle is expressed in providing family members with the opportunity to choose their behavior model. It is closely related to the principle of equality of spouses in the family. Thus, issues of motherhood, paternity, upbringing, education of children and other issues of family life are resolved by the spouses jointly, based on the principle of equality of spouses. None of them have any advantages and have no right to dictate their will.

5. The priority of family education of children, concern for their well-being and development, ensuring priority protection of their rights and interests

6. Ensuring priority protection of the rights and interests of disabled family members. This principle is implemented in the following articles of the Family Code of the Russian Federation:

Article 85 “Right to alimony for disabled minor children”;

Art. 87 “Responsibilities of adult children to support their parents”;

Art. 89 “Obligations of spouses for mutual maintenance”;

Art. 90 “The right of the former spouse to receive alimony after divorce”, etc.

2. Marriage: concept, conclusion and termination

Marriage is a voluntary and equal union of a man and a woman, giving rise to personal and property rights and obligations for them and aimed at creating a family.

Characteristic signs of marriage:

1) marriage is the union of a man and a woman;

2) marriage is a voluntary union;

3) marriage is an equal union;

4) marriage is a union concluded in compliance with certain rules established by law;

5) the purpose of marriage is to create a family;

6) marriage gives rise to mutual personal and property rights and obligations of the spouses;

7) the marriage is concluded without specifying its validity period.

A marriage is valid from the moment of its state registration. According to Art. 11 of the RF IC, registration of marriages is carried out by registry offices in the manner established for state registration of civil status acts.

Persons wishing to get married submit applications to the civil registry office.

Family law does not oblige persons entering into marriage to be personally present at the registry office at the time of filing the application. And state registration of marriage is possible only in the personal presence of the persons entering into the marriage.

From the moment of filing an application for marriage until the moment of marriage registration, the waiting period is set at one month.

If there are good reasons, this period may be increased by the registry office, but not more than one month, or reduced. The issue of recognizing one or another reason as valid for changing the deadline is decided by the registry office.

Conditions for marriage are the circumstances under which a marriage can be registered and will have legal force:

a) the existence of mutual voluntary consent of the man and woman entering into marriage;

b) reaching marriageable age;

c) the absence of obstacles to marriage provided for by family law.

Obstacles to marriage are those circumstances in the presence of which marriage is impossible (Article 14 of the RF IC):

1) presence of another registered marriage;

2) the presence of a close relationship between the future spouses;

3) incapacity of one of those entering into marriage;

4) the existence of a relationship between the adoptive parent and the adopted child.

The refusal of the registry office to register a marriage may be appealed by the persons entering into marriage or by one of them in court.

In accordance with Art. 16 of the RF IC, a marriage during the lifetime of the spouses is terminated by divorce upon the application of one or both spouses in court or in the civil registry office.

Divorce is a legal act that terminates, with exceptions provided by law, the rights and obligations of spouses for the future. A marriage can be terminated, along with a divorce, due to the death of one of the spouses, as well as the declaration of one of the spouses as deceased.

The Family Code of the Russian Federation regulates the grounds for divorce in administrative and judicial proceedings.

Divorce in an administrative manner (in the registry office) is carried out:

1) with mutual consent to divorce spouses who do not have minor children.

2) at the request of one of the spouses, regardless of whether the spouses have common minor children, if the other spouse:

- declared missing by the court;

- declared incompetent by the court;

- sentenced for committing a crime to imprisonment for a term of over 3 years.

Divorce and the issuance of a certificate of divorce are carried out by the civil registry office after a month has passed from the date of filing the application for divorce.

Divorce in court is carried out:

1) if there is mutual consent to dissolve the marriage of spouses who have common minor children, the marriage is dissolved by the court one month from the date of filing the application.

2) in the absence of the consent of one of the spouses to dissolve the marriage, the court has the right to set a conciliation period and postpone the trial of the case; after this period, the court makes a decision either on the reconciliation of the spouses or on divorce.

3) if one of the spouses evades divorce from the registry office.

When making a decision on divorce, the court resolves a number of issues affecting the interests of spouses and children (the place of residence of minor children, the procedure and amount of payment of funds for child support; the division of common property of spouses, etc.

Relationships regulated by family law

The relations that family law regulates are moments of interaction between family members regarding the conclusion or divorce of a marriage, as well as other issues of a property and non-property nature that arise in the unit of society in question.

The family may include husband, wife, children, grandparents, sisters, brothers and other relatives, as well as guardians and trustees, adoptive parents, foster parents and wards.

Family law also regulates relationships that do not arise within the family, but are simply formed on the basis of kinship, a marriage that has been dissolved, or other grounds provided by law. For example, after a divorce, a wife has the right to receive alimony from her ex-spouse in certain cases stipulated by law.

But at the same time, the principles and sources of family law are not addressed to the relationships that arise between people living together without an officially registered marriage. In this case, if they, for example, divorce, the common property will not be divided equally, as prescribed in the Civil Code of the Russian Federation, but on the basis of the Civil Code of the Russian Federation. That is, things, real estate or other material assets will belong to the person who acquired them and to whom they are registered. Thus, the state protects and prioritizes family relationships, and the principles of family law include equality of spouses and recognition only of marriage registered in the registry office.

Principles

The principles of family law are of universally binding importance for all citizens of the Russian Federation. These are the fundamental principles of family law that define the essence of this industry. They are enshrined in Article 1 of the SKRF.

The principles of family law are:

state protection of motherhood, childhood and paternity;
recognition only of the marriage that was carried out by the registry office;
voluntary marriage;
equality between husband and wife;
reciprocity in resolving intra-family conflicts and issues;
the primacy of the family form of upbringing of minors, ensuring their education, welfare and development, protecting the rights, freedoms and interests of children and other disabled family members;
the inadmissibility of deprivation or restriction of the rights and freedoms of citizens in the family, except for those cases provided by law to protect the health, morals, interests and rights of other family members or other people;
a ban on restricting the rights of citizens during marriage and family life due to racial, social, religious and linguistic affiliation.

Principles of family law - Family law (Kushnir I.V.)

The peculiarity of the legal regimes provided by special industries, which include family law, to a greater extent than in core industries, is reflected primarily in industry principles. Principles of family law

– these are the basic principles and guidelines established by family law, in accordance with which the norms of family law regulate personal and property family relations.

The basic principles (principles) of family law include (Article 1 of the RF IC):

1. Recognition of marriages concluded only in civil registry offices.

The state registration act confirms that this union has received public recognition and protection. After the state registration of a marriage by the civil registry office, legal relations arise between the spouses, regulated by family law.

2. Voluntary marriage between a man and a woman.

Marriage is recognized as a voluntary, free and equal union of a man and a woman. Voluntariness means the right of every man and every woman to choose a wife or husband at their own discretion and the inadmissibility of any outside influence on their will when deciding on marriage. This principle also presupposes freedom of divorce.

3. Equality of spouses in the family.

This principle is based on the constitutional principle of equality of rights and freedoms of men and women (Article 19 of the Constitution of the Russian Federation) and is expressed in the fact that husband and wife have equal rights in resolving all issues of family life.

4. Resolution of intra-family issues by mutual agreement.

This applies to resolving any issues of family life (spending common funds of spouses; ownership, use and disposal of common property; concluding a marriage contract or agreement on the payment of alimony for children, etc.).

5. The priority of family education of children, concern for their well-being and development, ensuring priority protection of their rights and interests.

This principle is ensured by the rights of the child provided for by the 1989 UN Convention on the Rights of the Child, to which the Russian Federation is a party, and by the provisions of the Family Code (Articles 54–60, 61–68, 8 °СК). Of particular importance is the child’s right to live and be raised in a family. The UK, when determining the forms of placement for children left without parental care, gives priority to family education.

6. Ensuring priority protection of the rights and interests of disabled family members.

The law gives disabled family members the right to demand the opportunity to provide themselves with the necessary means of subsistence.

7. Monogamy (monogamy).

This means that a man or woman can be in the same registered marriage at the same time. Registration of a marriage with a person who was previously in a registered marriage is possible only if there are documents confirming the termination of the previous marriage (certificate of divorce, death of a spouse, court decision declaring the marriage invalid).

The principle of state protection

The principles of family law include, in particular, the state’s protection of motherhood, childhood, and paternity. Family law is based on the mandatory strengthening of the family, building relationships within it on the basis of love, respect, and mutual assistance.

The state does not allow arbitrariness or illegal actions of some family members in relation to others, and protects the legal rights and interests of its disabled and incompetent representatives. It also protects the family from interference by third parties (except for cases provided for by law) and gives its members the right to defend their interests in court.

Principle of marriage recognition

The principles of family law of the Russian Federation also include the recognition of only those marriages that are officially registered in the registry office.

If people marry according to church rites or by any other means, then such relationships do not have any legal significance, and therefore do not give rise to any legal consequences. The only exceptions are those unions that were concluded according to religious rites during the Second World War and after it, when the registry offices had not yet been restored in the territory where the spouses were located.

Cohabitation between a woman and a man is also not a legal type of family relationship.

The principle of voluntary marriage

The principles of family law also include the rule of voluntary marriage between people, which consists in the right of any man and any woman to choose a wife/husband, respectively, of their own free will.

The essence of this principle is that spouses should not be influenced or pressured when making a choice.

If a marriage cannot be concluded without the mutual voluntary consent of the two parties, then divorce is possible either by mutual desire or at the request of one of the spouses.

Monogamy or the principle of monogamy

When men have such a desire, it means that they want to control the free, wandering part of their nature and discipline themselves in the name of a relationship with one woman. They are willing to accept the limitations of monogamy because it satisfies their other needs—needs no less important than sex for most men.

What does the desire of men for monogamy indicate?

Many of the same men who are inspired by the idea of sexual variety also have a deep and serious need for the safety, comfort and coziness of home life. These two contradictory needs - for peace and security at home, on the one hand, and for the excitement of an unrestricted sexual life, on the other - wage an eternal war in the inner world of a man. Ideally, men want to have both, and if it weren't for their women, most men would achieve this. However, having both does not mean uncontrolled relationships with women. Two women, such as a wife and a mistress, would be enough for many men. Some believe that they can overcome this duality through secret infidelities; others believe that the risk to their household, their social status, and even their work is too great.

AIDS, of course, has increased the risk of casual relationships and is forcing even the most rabid female lovers to think at least twice about their lifestyle. But when this lifestyle is based on more than just the sexual desires that men periodically experience - for example: when sex takes on a self-sufficient meaning; when it is an expression of something unfinished in the past, based on childhood psychological traumas; or is it a way to reduce tension that has non-sexual sources; reaction to complications in relationships or many other reasons why men cheat, then it is difficult to expect monogamy, no matter how great the risk.

Let's look at some men who live in the shadowy world of affairs, promiscuity, and deception. Who are these men who are incapable of fidelity? What motivates the fact that some constantly change lovers, while others do not play this game, but instead start a casual affair, as a result of which they find themselves absorbed in a long-term, and even emotional, connection?

In subsequent chapters you will find a psychologically motivated answer to the question - why your husband or lover cheated. In Chapter Eight you will read about special situations that lead to infidelity.

If you can recognize your man among the people I describe, you will have a way to understand whether he is inclined to repeat his infidelity based on what motivates him. In Chapter Ten, you will also see that you yourself unknowingly play a larger role in his infidelity than you can imagine.

I will start by analyzing the behavior of married and single men - the type for whom infidelity is a way of life.

Monogamy in family life

When I found out about my husband's affairs, it was hard for me to come to terms with the idea that our marriage was not as invulnerable as I had once imagined in my imagination. Although I lost faith in the myth of monogamy, I did not give up hope for a monogamous marriage. I still believe in monogamy and believe it is achievable. However, only by making a radical revolution in our way of thinking will we arrive at monogamous marriage. Ironically, it is the myth of monogamy that prevents us from addressing issues that require urgent consideration. If this continues, monogamy will remain an unattainable goal.

Monogamy, let’s not indulge ourselves with empty hopes, will become the norm of social life only if we abandon the following ideas:

as if a married couple is capable of adopting a monogamous lifestyle without discussion, or

as if you can achieve monogamy by threatening the consequences if someone is pulled to the left.

In both cases we are walking in a vicious circle of lies. In any case, people feel that they are not free to admit their desires. If they do not recognize them, then they do not even admit that they are being tempted. And if you do not allow the thought of temptation, then you will not recognize it, even if you someday follow it. As a result, feelings of jealousy and suspicion arise in the relationship, the marriage begins to crack, and the emergence of a third party becomes possible.

Only in one case will monogamous relationships become the norm: if spouses or people living together are honest with each other. This is all we can count on. At the same time, it should be clear to both spouses: hobbies cannot be ruled out, they are even inevitable. It doesn't matter how much you love each other. Therefore, you should always speak honestly about the temptations that overcome you and how, if one of the spouses falls into temptation, to avoid their consequences. As a result, there will be a mutual rapprochement, recognition of each other, suspicion will be replaced by trust, and then the third person may not appear in your life.

Monogamy in family life is something that many people believe in and expect. All studies conducted on this topic show that a high percentage of respondents believe that monogamy is important in marriage and that outside relationships are immoral. However, although many are convinced that monogamy is an ideal, this belief does not save them from entering into extramarital affairs. We should not turn a blind eye to the existence of connections on the side, but treat this problem with full responsibility - both as an individual and as a society as a whole.

To do this, many of us need to question our most cherished ideas about monogamy and outside relationships. It will be difficult to question some of our previous assumptions and even more difficult to abandon them. Our understanding of monogamy and relationships on the side is so deeply ingrained in us that it is not easy for us to come to terms with ideas that do not fit into our framework. However, it is necessary if we are to understand the complexity of this highly emotional issue and its future.

A new understanding of extramarital affairs leads not only to our reconsideration of the cause that gives rise to them. At the same time, a number of issues are being rethought. Who is to blame for what happened? Is it worth talking about what happened? How to regain your former respect? Should I seek help from a specialist? Get a divorce or save the family? Subsequent chapters will examine all of these aspects, demonstrating old and new approaches to these issues and how they fit into general ideas about outsourcing. On the following pages, couples who want to calm the turmoil reigning in their souls will find useful advice. For example, the answer to the question of how not to lose yourself in such a difficult matter. At the same time, it is not so important whether the marriage breaks up or not. If a couple or one of the spouses relies only on their own strength, then such a calculation rarely fully justifies itself. To heal, it is necessary to overcome the limited view of affairs on the side and consider them in a broader context.

Perceptions of family monogamy

The myth of monogamy is the belief that monogamy is the norm in our society and that it, as a whole organism, protects it. The belief that most marriages or committed relationships are monogamous leads to the following: if one spouse has an affair, the other (the wife or husband) sees this as evidence of his worthlessness. Hence self-flagellation, shame for oneself, wounded pride and an almost universal feeling of emptiness.

In fact, monogamy is not the norm in society, at least by today's standards. Low estimates are as follows: 60 percent of men and 40 percent of women will certainly have an affair. These numbers become even more telling when we take the total number of marriages where one spouse is unfaithful to the other. It is impossible to imagine that all the men and women who entered into relationships on the side were, by chance, married to each other. If even half of the women who have an affair (or 20 percent) are married to men who are not among the 60 percent of men who have affairs, then in at least 80 percent of marriages one of the spouses has an affair. Considering how many married couples have actually broken their vows at the altar, it is absurd to attribute extramarital affairs only to the failures and shortcomings of individual husbands and wives.

According to the myth of monogamy, society as a whole stands guard over the principle of monogamy and encourages those who seek to remain faithful to their loved one. Newly-made spouses, based on this reality, expect that a third party will never disturb the peace of their family. Because of this myth, those who fail to maintain a monogamous relationship feel even more personally guilty.

In reality, society is hypocritical when it comes to monogamy. Some forces operating within it actually support and promote the emergence of external connections. I did not make this statement in order to place all responsibility on society. It would also be shortsighted to blame only the unlucky spouses. However, taking a broad look at the social organism, in the depths of which love affairs on the side are established; it would be much easier for us to understand their causes, no matter how difficult it may be to fight them.

Perceptions of marital monogamy. When considering any problem in a number of other areas, as a rule, the role of society is already taken into account. We are gradually coming to understand the conditions that give rise to violence, rather than looking at its individual manifestations. Little by little we realize that the habits we have acquired lead to illness, and not only do we pay all our attention to the manifestations of the disease state. We also need to take a closer look at the social forces that promote extramarital affairs, and not just think about who is having the affair.

We must reject the myth of monogamy not to justify those who are partying, but to rid them of the feeling of shame and inadequacy of their partners or life partners. Because they hide their anger and rage, they rarely manage to completely overcome these feelings. In this case, it doesn’t even matter whether they are still married or got a divorce. When a person is subjected to such a test, and if this has already happened (or the person is trying to prevent it), then it is best to look at reality with sober eyes, and not be a slave to myth.

August 13, 2021 at 11:07 am

Mikhail Litvak

The principle of equality between husband and wife

When listing the principles of family law, one cannot fail to mention the rule of equality between men and women in family relationships.

This aspect presupposes equal opportunities when resolving any situations that arise in the family: for example, in matters of motherhood, childhood, paternity, budget, etc.

Thus, Article 31 of the SKRF assigns equal rights to both spouses when choosing their type of activity, place of residence, location, and profession. At the same time, a man and a woman should build their relationship on respect for each other, mutual assistance, promoting the well-being and strengthening of the family.

Article 61 of the ICRF defines the equality of spouses as parents. In relation to their child, mother and father bear equal responsibility. Spouses have equal rights in relation to their own children until the latter reaches adulthood, marries or gains full legal capacity.

dvorkin

The objectives of family law are:

strengthening the family as a natural and basic unit of society on the principles of universal morality, preventing the weakening and destruction of family ties;
building family relationships on the voluntary marriage of a woman and a man, equality of rights of spouses in the family, on mutual love, respect and mutual assistance of all family members;
establishing children's rights and ensuring them;
establishing the rights and obligations of spouses, parents and other family members in accordance with the provisions of the Constitution and international law;
protection of motherhood and paternity, rights and legitimate interests of children, provision of favorable conditions for the development and formation of each child.

The principles as guidelines that define the essence of this branch of law and are of generally binding significance due to their legal codification.

The principle of family protection by the state (Article 3). This means that the state takes care of the family by creating conditions for economic independence and growth of family well-being, preferential tax policies, payment of state benefits to families with children, preferential lending, creation and development of a wide network of children's and medical institutions, creating conditions for marriage between parents work activity with the fulfillment of family responsibilities, development of everyday life infrastructure.
The principle of legal regulation of marriage and family relations by the state (Article 4). Only marriages entered into by state bodies registering acts of civil status are recognized.
The principle of protecting the rights arising from marriage and family relations (Article 6). Protection of rights arising from marriage and family relations is carried out by the court, guardianship and trusteeship authorities, as well as government bodies.
The principle of voluntariness of a marriage between a man and a woman (Article 12). The voluntariness of a marriage union presupposes the free expression of the will of a man and a woman, which the future spouses express twice: when submitting an application to the registry office and during the registration of marriage. This excludes anyone's interference in the form of coercion into marriage or prohibition of marriage.
The principle of monogamy (monogamy) (Article 19). The legislation on marriage and family enshrines the principle of monogamy: a person can be in only one registered marriage. Entering into a marriage without terminating the previous one entails a negative legal consequence: a second marriage is declared invalid.
The principle of free divorce under state control (Articles 36, 37). Freedom of marriage presupposes freedom of divorce. In order to prevent the adverse consequences of divorce, both for the spouses themselves and their minor children, the dissolution of a marriage occurs under the control of the state through a judicial procedure.
The principle of responsibility for improper upbringing of children (Article 67). This means that parents, as well as other persons and institutions involved in raising a child, are, in accordance with the law, responsible for the improper upbringing of children.
The principle of priority of children's rights (Article 181). This means that the child has the right to special, preferential and priority care, both from the parents and from the state.
The principle of equal rights for children (Article 182). All children have equal rights regardless of origin, race, nationality and citizenship, social and property status, gender, language, education, attitude to religion, place of residence, health status and other circumstances relating to the child and his parents. Children born in and out of wedlock enjoy equal and comprehensive protection.
The principle of priority of family education of children (Articles 66, 185). All children have the right to life in a family surrounded by parents and relatives, to their care and attention.

The principle of priority of family education of children

The next principle of family law is the primacy and importance of raising children in the family. The SKRF provides for minors the opportunity to live and be raised in a family, as well as the right to know their own parents, receive care from them, and live with them.

It is the family form of education in our country that is recognized as a priority, since only with this option is it possible to carry out an individual approach to children, taking into account their national, mental, and personal characteristics.

Also, the principles and functions of family law determine the following: if a minor finds himself for some reason without parental care, then the state establishes guardianship or trusteeship over him. The child is placed in a foster family, adopted, or placed in a foster family. And only in the absence of such options does the minor end up in an orphanage or other institution of a similar type.

The principle of ensuring the protection of the interests and rights of children and disabled family members

The basic principles of family law are a guarantee of the primary protection of the interests and rights of disabled family members. Those who need such care are children, disabled people and pensioners. The family is obliged to provide relatives belonging to this category with material and moral support.

For example, able-bodied adult children must support their needy, disabled parents, with the exception of cases where adults at one time evaded fulfilling their responsibilities in relation to children.

A similar rule of law applies to able-bodied adult grandchildren in relation to their grandparents, and to able-bodied adult brothers or sisters in relation to their minor brothers and sisters.

If citizens do not provide assistance to their disabled relatives voluntarily, they may be forced to do so in court.

Principles of family law - Shchepansky R.A. Family law

Principles of family law

– guidelines that define the essence of this branch of law and have generally binding significance due to their legal enshrinement. To the principles of family law Art. 1 SC refers to:

1) the principle of recognition of marriage concluded only in the registry office.

Marriages concluded in other ways (religious, church and other rites) are not recognized and do not give rise to any legal consequences. Actual cohabitation without state registration is not recognized as marriage, regardless of duration;

2) the principle of voluntary marriage between a man and a woman

means the right of every man and woman to choose a wife or husband at their own discretion and the inadmissibility of any third-party interference in deciding the issue of marriage. A prerequisite for marriage is the voluntary consent of a man and a woman. This principle also presupposes the possibility of divorce both at the request of both spouses and at the request of one of them;

3) principle of monogamy (monogamy)

. One of the circumstances preventing marriage is the presence of one of the persons in another registered marriage. Violation of this principle is considered a violation of moral rules, promiscuity, and entails the recognition of the marriage as invalid;

4) equality of women and men in resolving all family issues, both personal and property.

A woman and a man have equal rights upon marriage, after which they acquire equal personal rights, equal rights and responsibilities in matters of motherhood, paternity, upbringing, education of children and other issues;

5) resolution of intrafamily issues by mutual agreement.

This principle applies to resolving any issue in family life (spending the spouses’ common funds, owning, using and disposing of common property, concluding a marriage contract, etc.);

6) priority of family education of children, concern for their well-being and development, ensuring priority protection of their rights and legitimate interests.

This principle follows from the content of the Convention on the Rights of the Child. The RF IC enshrines a set of rights for minors, as well as the rights and responsibilities of parents for the upbringing, maintenance and education of children. The right of a child to live and be raised in a family, as far as possible, is enshrined in Art. 54 RF IC;

7) ensuring priority protection of the rights and interests of disabled family members

. The law obliges able-bodied adult children to support their disabled parents who need help. Similarly, able-bodied adult grandchildren are required to support their disabled grandparents who need help. If obligated persons do not provide financial assistance voluntarily, they may be forced to fulfill this obligation in court;

family protection by the state.

The protection and promotion of motherhood is under the protection of the state. The state takes care of the family by creating and developing a wide network of maternity hospitals, kindergartens and nurseries, boarding schools and other children's institutions, paying benefits on the occasion of the birth of a child, providing benefits to single mothers and large families, as well as other benefits and assistance to the family.

The principle of prohibition of restricting the rights of citizens entering into marriage

There are also constitutional principles of family law. One of them is the principle of prohibiting restrictions on the rights of citizens entering into marriage. According to the Constitution (Article 19), the state guarantees people equal rights and freedoms, regardless of their race, language, nationality or religion, and regardless of their gender, property or official status. And in accordance with Article 1 of the ICRF, similar types of restrictions on the rights and interests of citizens upon marriage are prohibited.

The freedoms of citizens in the family can be infringed only on the basis of federal laws and only to the extent necessary to protect the health, morals and rights of other people and family members. For example, a court may decide to alienate a child from his parents without depriving him of parental rights, which in some cases will be in the interests of minors.

Thus, the concept, subject, method, principles of family law were discussed above. As you can see, in the family legislation of the Russian Federation, the family is given priority. The norms of this right are fully consistent with the Constitution of Russia, are aimed at protecting the citizens of the country and are completely democratized.

Basic principles (principles) of family law

When revealing the essence of family law, it is necessary to take into account not only the specifics of its subject and method of family law regulation, but also the basic principles (principles) of family law, reflecting the most characteristic features of this branch of law. as guidelines that define the essence of this branch of law and have universally binding significance due to their legal codification.

Without taking into account the basic principles (principles) of family law, it is impossible to correctly interpret and apply its norms. The principles of family law are important not only for law enforcement practice, but also for a deeper understanding of the essence of current family law and for its subsequent improvement.

Therefore, the introduction into the law of a special norm on the basic principles of family law (Article 1 of the Family Law) is of exceptional importance. As Nechaeva A.M. notes, Art. 1 of the Family Code, defining the basic principles of family legislation, provides a general list of, on the one hand, desirable, and on the other hand, unacceptable actions and deeds, which “allows us to get an idea of the main features of a positive model of approved behavior in the family”[37].

To the basic principles (principles) of family law Art. 1 SC refers to:

1) The principle of recognition of marriage concluded only in the registry office.

In accordance with paragraph 2 of Art. 1 of the IC in the Russian Federation still recognizes only marriages concluded in the registry office. From 1917 to Russia, in accordance with the Decree of the All-Russian Central Executive Committee and the Council of People's Commissars of the RSFSR of December 18, 1917 “On civil marriage, on children and on maintaining civil registers”[38], the church form of marriage was abolished and marriages entered into in a civil manner were recognized as valid , that is, in the authorized state bodies, which are the registry offices. Therefore, marriages concluded in a different way (according to religious, church and other rites) are not recognized, that is, they do not have any legal significance and do not give rise to any legal consequences. The actual cohabitation of a man and a woman without state registration with the registry office is not recognized as marriage, no matter how long it may be. As is rightly emphasized in the legal literature, the significance of the act of state registration of marriage is that as a result of this, the union of a man and a woman receives public recognition and protection from the state, as satisfying the requirements of the law[39]. The need for state registration of marriage is enshrined in the legislation of most developed countries (the Netherlands, Belgium, France, Germany, etc.);

2) The principle of voluntariness of a marriage between a man and a woman,

meaning the right of every man and every woman to choose a wife or husband at their own discretion and the inadmissibility of any outside influence on their will when deciding on marriage. Mutual voluntary consent of a man and a woman entering into marriage is a mandatory condition for marriage. To enter into a marriage, consent or permission from other persons is not required (Article 12 of the Family Code - see § 2, Chapter 2). This principle also presupposes the possibility of dissolution of marriage (freedom of divorce) either at the request of both spouses or at the request of only one of them (Article 16-23 of the Family Code - see § 1-3, Chapter 3). The court does not have the right to refuse divorce in the absence of the consent of one of the spouses, if measures to reconcile the spouses were unsuccessful, and the other spouse insists on divorce (Article 22 of the Family Code - see § 3, Chapter 3);

3) The principle of equal rights of spouses in the family

based on the provisions of Art. 19 of the Constitution of the Russian Federation on equality of rights. men and women and is expressed in the fact that husband and wife have equal rights in resolving all issues of family life (issues of motherhood, paternity, upbringing and education of children, family budget, etc.) (Articles 31-32, 34, 39 , 61 SK);

4) The principle of resolving intrafamily issues by mutual agreement

is consistent with the above-mentioned principle of equality of rights of spouses in the family and is closely related to it (Clause 2, Article 31 of the Family Code - see in detail § 1, Chapter 4). This principle applies to the solution of any issue in family life (expenditure of the common funds of the spouses; 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 of spouses' family expenses; choice of educational institution and form of education for children, etc.);

5) The principle of priority of family education of children, concern for their well-being and development, ensuring priority protection of their rights and interests.

This principle follows from the content of the Convention on the Rights of the Child[40], which considers the child as an independent person endowed with appropriate rights and in need of support and protection due to age. The Russian Federation, as a party to the Convention on the Rights of the Child, has assumed obligations to bring current family legislation into compliance with the requirements of the Convention and ensure full protection of the rights and interests of the child. The Family Code enshrines a whole range of rights of minor children (personal non-property and property rights - Articles 54-60 of the Family Code), as well as the rights and responsibilities of parents for the upbringing, maintenance and education of children (Articles 61-68, -80 of the Family Code). Of particular importance is the right of a minor child to live and be raised in a family, as far as possible (Article 54 of the Family Code). It is family education that makes it possible to implement an individual approach to each child, taking into account his personal, mental, physical, national and other characteristics. Therefore, the law, when determining the forms of placement for children left without parental care, gives priority to family education (adoption, guardianship and trusteeship, foster family - Article 123 of the Family Code).

As rightly noted in the literature on family law, as a result of the implementation of this principle in practice, the child becomes an independent subject of family law[41]. And the determination of the legal status of a child in the family should be based on the interests of the child himself, not on the rights and responsibilities of the parents;

6) The principle of ensuring priority protection of the rights and interests of disabled family members.

A family, as an association of persons based on marriage or kinship, naturally presupposes that they provide each other not only with moral, but also with material support and assistance. Moreover, such assistance, both from a moral and legal point of view, should be provided primarily to disabled family members who, for objective reasons, are deprived of the opportunity to provide themselves with the necessary means of subsistence. In this regard, the Insurance Code not only provides for priority protection of disabled family members (minor children, disabled people of groups I, II and III, persons of retirement age), but also contains norms aimed at implementing this principle (Articles 80, 87, 89— 90, 93-98 SK). So, for example, the law obliges able-bodied adult children to support their disabled parents who need help (Article 87 of the Family Code), a similar obligation is assigned to able-bodied adult grandchildren, in relation to disabled grandparents who need help (Article 95 of the Family Code), etc. ... If obligated persons do not voluntarily provide financial assistance to disabled family members in need of assistance (the list of such family members is given in the Insurance Code), then they can be forced to fulfill it in court.

Thus, the main principles of family legislation, including the recognition of marriage concluded only in the registry office, the voluntariness of marriage, monogamy, equality of spouses in the family, priority protection of the rights and interests of minors and disabled family members, remain traditional for Russia. A significant innovation of the Family Code (clause 3 of Article 1) is the consolidation of the principle of priority of family upbringing of children (Articles 54, 123 of the Family Code) and concern for their well-being and development (Articles 60, 63 of the Family Code).

The IC, taking into account the specifics of the relations it regulates, specifies the most important constitutional principle of equality of citizens (Article 19 of the Constitution of the Russian Federation), according to which the state guarantees equality of rights and freedoms of citizens regardless of gender, race, nationality, language, origin, property and official status, attitude to religion , beliefs, membership in public organizations, as well as other circumstances. In paragraph 4 of Art. 1 of the UK prohibits 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. It follows that the unconditional principle of family law is the equality of citizens in family relationships.

Based on the content of Art. 55 of the Constitution, provision of paragraph 4 of Art. 1 of the UK that 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. This requirement guarantees against arbitrary infringement of family rights both by individual citizens and government bodies. At the same time, health protection can be understood as 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 historically fluid and consists in the observance by citizens of the moral norms and rules of behavior established in society. Restrictions on the rights of citizens in the family may be provided for either in the UK itself or in other federal laws. So, for example, according to Art. 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 parental rights (that is, limit parental rights). Or clause 4 of Art. 66 of the Family Code gives the right to educational, medical institutions and social protection institutions to refuse to provide information about the child to a parent living separately from the child if there is a threat to the life and health of the child from this parent.

Of exceptional importance in implementing the principles of family law and achieving the goals of legal regulation of family relations is the provision provided for in Art. 7 and 38 of the Constitution of the Russian Federation and paragraph 1 of Art. 1 SK obligatory state support for family, motherhood, paternity and childhood.

The norms of Russian legislation on state protection of family, motherhood, paternity and childhood comply with the requirements of international legal acts on human rights. The family is the natural and fundamental unit of society and has the right to protection from society and the state, and motherhood and infancy give the right to special care and assistance. This is expressed in the fact that all states, based on national conditions and within their capabilities, take the necessary measures to assist parents and other persons raising children in the exercise of this right and, if necessary, provide material assistance and support programs, especially in relation to the provision of food, clothing and shelter[42].

In the Russian Federation, the family is the object of state family policy. The goal of state family policy is to provide the state with the necessary conditions for the family to realize its functions and improve the family’s quality of life. State family policy is an integral part of the social policy of the Russian Federation and represents an integral system of principles, assessments and measures of an organizational, economic, legal, scientific, informational, propaganda and personnel nature, aimed at improving conditions and improving the quality of life of the family.

The main directions of state family policy in

RF
include:
1) providing conditions for overcoming negative trends and stabilizing the financial situation of families, reducing poverty and increasing assistance to low-income families;

2) providing employees with children with favorable conditions for combining work activities with family responsibilities;

3) radical improvement in family health;

4) strengthening assistance to families in raising children[43].

The basic principles of state family policy in the Russian Federation are proclaimed:

a) independence and autonomy of the family in making decisions regarding its development; b) equality of families and all their members in the right to support, regardless of social status, nationality, place of residence and religious beliefs; c) the priority of the interests of each child, regardless of the order of birth and the family in which he is being raised; d) equality between men and women in achieving a more equitable distribution of family responsibilities, as well as in opportunities for self-realization in the labor sphere and in public activities; e) unity of family policy at the federal and regional levels; f) partnership between family and state, sharing responsibility for the family, cooperation with public associations, charitable organizations and entrepreneurs; g) the state assumes obligations to unconditionally protect the family from poverty and deprivation associated with forced migration, natural and man-made emergencies, wars and armed conflicts; h) implementing a differentiated approach in providing guarantees to maintain a socially acceptable standard of living for disabled family members and creating conditions for economically active family members to ensure well-being on a labor basis; i) continuity and stability of state family policy measures[44].

The protection of family, motherhood and childhood by the state is comprehensive and is carried out through the adoption of a variety of government measures to strengthen and support the family. One of the main strategic objectives of the state’s social policy is to create the necessary conditions for the family to realize its economic, reproductive, educational and cultural-psychological functions, and to improve the quality of life of families. For these purposes, the Program of Social Reforms in the Russian Federation for the period 1996-2000, approved by Decree of the Government of the Russian Federation of February 26, 1997 No. 222[45], provides for the implementation of priority measures in the field of supporting families, children and youth,

including: a) improving the system of state social guarantees to support the well-being of families with children; b) state stimulation of small businesses, including family businesses, various forms of self-employment, the introduction of long-term preferential consumer lending for young families and families with minor children; c) development of new social technologies for family support, a network of specialized institutions for social services for families, children and youth, expansion of the list of social services they provide, including advisory and psychotherapeutic services for overcoming crisis situations, socio-psychological adaptation to new conditions; d) promoting the development of types of voluntary insurance, especially for children and youth, aimed at creating additional opportunities to support families at critical stages of its life cycle, implementing measures to ensure the sustainability and reliability of insurance systems in fulfilling insurance obligations; e) an increase in the federal budget of targeted expenditures on measures for social support of families, women, children and youth, ensuring the security of recording the most important activities; f) increasing the efficiency of using allocated funds, including by combining previously adopted programs in this area, concentrating efforts on the most important and priority areas of these programs; g) creation of an extra-budgetary fund to support motherhood and childhood, identification of sources of its financial replenishment and main areas of spending; h) creating favorable conditions for fuller use of the capabilities of the non-state sector to solve problems of improving the situation of families, women, children and youth; i) consolidation of norms to ensure vital social guarantees for families, women, and youth children in legislative acts regulating the distribution of powers of public authorities and the relationship between the federal budget and the budgets of the constituent entities of the Russian Federation; improving legislation in the field of protecting the rights of the family, women, children and youth.

In the scientific literature, proposals are made about the need to develop in the near future a comprehensive Federal Law “On Family Protection,” which will strengthen the legal guarantees of state policy on family protection[46].

Currently, the constitutional principle of protecting the family, motherhood, paternity and childhood is implemented by the state not only in the family legislation of the Russian Federation and its constituent entities, but also in other branches of legislation (civil legislation, legislation on health protection, social security, labor, housing legislation, criminal law, etc.). The principles of protecting the interests of the child laid down in the Convention on the Rights of the Child are reflected in various branches of Russian legislation.

In the field of healthcare, the state takes care of protecting the health of family members, including consultations, examinations, determining the conditions for providing medical care to pregnant women, mothers and minor children (Articles 22-24 of the Fundamentals of the Legislation of the Russian Federation on the protection of the health of citizens of July 22, 1993 No. 5487-I)[47].

Federal Law of May 19, 1995 No. 81-FZ “On state benefits for citizens with children” (with subsequent amendments and additions)[48], Regulations on the procedure for assigning and paying state benefits to citizens with children, approved by the Decree of the Government of the Russian Federation dated September 4, 1995 No. 883 (with subsequent amendments and additions)[49] and the Labor Code of the Russian Federation (Article 238)[50] in order to protect maternity, the payment of the following benefits is established: for pregnancy and childbirth; a one-time benefit for women registered in medical institutions in the early stages of pregnancy; lump sum benefit for the birth of a child; monthly allowance for the period of parental leave until the child reaches the age of one and a half years; monthly child benefit. In particular, a one-time benefit for the birth (adoption) of a child is paid in the amount of fifteen times the minimum wage established by federal law on the child’s birthday, and a monthly benefit for the period of parental leave until the child reaches the age of one and a half years is paid in the amount of two minimum wages labor established by federal law, regardless of the number of children being cared for. It is very significant that in accordance with the Law of the Russian Federation of December 7, 1991 No. 1999 “On personal income tax” (with subsequent amendments and additions)[51] these benefits are not subject to taxation.

In order to create favorable conditions for raising children, labor legislation provides for special measures for parents (guardians, trustees, foster parents) in the form of providing women with maternity leave, childcare leave until the child reaches the age of three, and additional paid days off ( Articles 163, 165-168 of the Labor Code). For pregnant women, night work, overtime work and business trips are prohibited (Article 162 of the Labor Code).

It is prohibited to refuse to hire and dismiss pregnant women and women with children, as well as to reduce their wages (Article 170 of the Labor Code). They are provided with vouchers to sanatoriums and rest homes (Article 171 of the Labor Code), as well as preservation of average earnings at the place of work when undergoing a mandatory medical examination in medical institutions (Article 1701 of the Labor Code). The use of women in heavy work is prohibited. The work of women with children at night and their sending on business trips are limited (Articles 160-163 of the Labor Code). As additional guarantees, additional breaks from work have been established for women to feed their children (Article 169 of the Labor Code).

Certain measures in the field of protection of motherhood and childhood are provided for by civil and housing legislation, including: maintaining housing for children during their stay in an educational institution; establishing an extraordinary procedure for providing housing to children who need it at the end of their stay in an educational institution (Articles 37 and 60 of the Housing Code of the RSFSR)[52]; the placement of minor children by the employer without the consent of citizens permanently residing with him (Article 679 of the Civil Code of the Russian Federation)[53]. The Law of the Russian Federation of July 4, 1991 No. 1541-1 “On the privatization of housing stock in the Russian Federation” (with subsequent amendments and additions)[54] provides additional guarantees for ensuring the interests of minors in the process of privatization of residential premises (refusal to include minors in the number of participants in the general ownership of privatized residential premises can be exercised by parents, adoptive parents, guardians and trustees only with permission from the guardianship and trusteeship authorities; minors who have become the owners of occupied residential premises in the manner of its privatization retain the right to a one-time free privatization of residential premises after they reach the age of majority, etc. .). In Art. 31-40 of the Civil Code establish the grounds and procedure for establishing and terminating guardianship and trusteeship of minors, guaranteeing reliable protection of the interests of children left without parental care.

In the system of measures to protect motherhood and childhood, a special place belongs to measures to protect the legal rights and interests of children. By Decree of the President of the Russian Federation of January 15, 1998 No. 29[55] for 1998-2000. the federal target programs “Children of the North”, “Orphans”, “Children of Chernobyl”, “Disabled Children”, “Family Planning”, “Development of the Baby Food Industry”, “Gifted Children”, “Children of Refugee and Forced Families” were extended migrants”, “Safe motherhood”, “Prevention of neglect and juvenile delinquency”, which are part of the presidential program “Children of Russia”[56]. The listed federal target programs, in turn, were approved by Decree of the Government of the Russian Federation of September 19, 1997 No. 1207 “On federal target programs to improve the situation of children in the Russian Federation for 1998-2000”[57]. Their main goal is to create favorable conditions for the life of children, ensuring their social protection during the period of socio-economic transformations and reforms.

The main directions of state social policy to improve the situation of children in the Russian Federation until 2000 - the National Plan of Action in the Interests of Children - (approved by Decree of the President of the Russian Federation of September 14, 1995 No. 942 [58]) provide for measures to strengthen the legal protection of childhood legislation of the Russian Federation in accordance with the provisions of the Convention on the Rights of the Child, as well as strengthening the protection of personal and property rights of children and adolescents in an environment of changing socio-economic conditions and property relations. A certain basis for this already exists (Decree of the President of the Russian Federation of June 1, 1992 No. 543 “On priority measures for the implementation of the World Declaration on ensuring the survival, protection and development of children in the 90s” and the resolution of the Council of Ministers - Government of the Russian Federation of August 23 1993 No. 848 “On the implementation of the UN Convention on the Rights of the Child and the World Declaration on the Survival, Protection and Development of Children” [59]). As the second stage of the implementation of the National Action Plan in the interests of children, the Government of the Russian Federation Resolution No. 165 of December 18, 1997 approved the Action Plan to improve the situation of children in the Russian Federation for 1998-2000[60]

Other measures in the field of protection of motherhood and childhood are also being carried out at the federal level. In accordance with the Program of the Government of the Russian Federation “Reforms and development of the Russian economy in 1995-1997”[61], the Government of the Russian Federation approved the Concept for Improving the Status of Women in the Russian Federation[62] and the Action Plan for Improving the Situation of Children in the Russian Federation for 1995-1997.[ 63] and the National Plan for the Improvement of the Status of Women and Their Role in Society until the Year 2000[64]

In order to protect the family, motherhood and childhood, 84 family planning and reproduction centers have been opened and equipped in the Russian Federation. Over 100 territorial centers for assistance to families with children, about 200 shelters for the temporary stay of neglected children, 8 centers for the temporary stay of children left without parental care, as well as experimental centers for assistance to minor mothers have been created[65].

By Resolution of the State Duma of the Federal Assembly of the Russian Federation of December 5, 1996 №

881-II of the State Duma “On social protection and support of families, children and youth””, in the legislative activities of the State Duma of the Federal Assembly of the Russian Federation, the preparation and adoption of legislative acts on social protection and support of families, children and youth is recognized as a priority. In this regard, the proposals expressed in the scientific literature on the need to introduce a mandatory examination of government decisions and regulatory legal acts from the point of view of their impact on the life of the family, that is, to conduct a so-called family examination, deserve attention[66].

Thus, the protection of motherhood, paternity and childhood, the family in the Russian Federation is carried out both through the adoption and implementation in practice of various government measures, and by improving legislation, including family law.