Civil marriage, de facto marriage, cohabitation: relationship between concepts

Civil marriage is a concept that is widespread in the modern world. What does it actually mean and what is the difference between civil marriage and cohabitation? Perhaps they are not the same thing. It is popularly believed that a civil marriage is the relationship between a man and a woman when they simply live together, run a joint household, without trying to legitimize this fact. Let's figure out what a civil marriage is and how it differs from a traditional one.

Marriage

In Russia, as throughout the world, marriage is considered to be the union of two persons who have reached marriageable age, based on their mutual and voluntary desire to become spouses. As modern society develops and new forms of marriage between people emerge, it becomes more difficult to identify a specific legal term for marriage. At the moment, there are more than 25 types of marriage unions in the world that exist in practice and are distinguished by legal consequences, purposes of conclusion, features of the form and other criteria.

Despite such a variety of types, it is rare that the state assumes the authority to recognize more than one or two forms of marriage. Thus, in addition to the traditional registered marriage between a man and a woman, due to existing trends today, many states also recognize:

• church marriages;
• same-sex marriage;
• civil partnerships are an unregistered type of union that is intermediate between cohabitation and official marriage;
• Polygamy is especially common in Muslim countries.

Find out in more detail what a marriage union is in Russia.

Background

• church marriage is a ceremony through which a man and a woman are officially considered a family. For centuries, the church played a dominant role along with the monarch;
• civil marriage - registration in registers and receipt of a document about it.

Today the church is separated from the state, it is considered secular, which means whether to get married or not is a voluntary choice of citizens.
Our country is multinational, different faiths are represented in it, and the wedding ceremony is not the only way to legitimize relationships on a spiritual level. Therefore, gradually the concepts changed. A civil marriage began to be called a marriage that was not registered with a special body. It is also called cohabitation. Registered relationships are called official marriage. It is this form of family that is considered today the only one protected by law and, as a result, the most convenient.

Civil marriage and its meaning

In practice, we often have to deal with the position that the actual cohabitation of a man and a woman who are not relatives is a civil marriage. We declare responsibly: this is a mistake. We suggest you figure out what a civil marriage really is.

Thus, due to the legal doctrine existing today, a civil or secular marriage is a marital union registered in state institutions (for example, in the registry office) without the participation of the clergy. It is worth noting that in most countries of the world (Russia is no exception), civil marriage is the only form of marital relations recognized from the point of view of civil and family law and giving rise to certain legal consequences.

To enter into a civil secular marriage, it is usually necessary to meet a number of conditions: reaching marriageable age, the absence of a close blood relationship between spouses, legal capacity, desire to start a family, and so on.

This means that a civil union should be considered a union that is not only recognized from the point of view of society and the law, but is also concluded according to the formal rules established in this society. Only this guarantees the emergence of legal consequences as a result of marriage, including joint property regime, the right to mutual maintenance, housing and inheritance rights, and so on.

Despite the fact that the basis of family law is personal relationships between people, certain moral qualities and feelings, civil marriage is primarily a legal definition. Firstly, because only he is capable of forming a system of rights and obligations between persons who have become spouses. Secondly, civil marriage is the only form of social control over marital relations recognized by law. And only after all this, marriage in the form of a civil union can be considered from a moral point of view, as a legitimate result of romantic feelings that have arisen between people.

The civil form of marriage was first introduced in the Roman Empire in the first centuries after the birth of Christ. Then, let us recall, society was closely connected with church laws and more often lived by them than by secular laws. At that time, the church did not consider the civil laws of the Roman Empire, according to which the Romans entered into marriage, to violate sacred dogmas, but still required the blessing of the bishop to enter into a marriage according to civil laws. Much has changed since then, and civil marriage has essentially become the only form of legalization of marital relations.

Cohabitation

What Russian citizens call a “civil marriage” is in fact a union without registration, and a marriage without registration is called cohabitation. What caused this error? The fact is that actual marriage received the false name “civil” back in the days of the Russian Empire. At that time, the only official form was church marriage, so actual family relationships, alternative to those registered in the church, were called “civil marriage.” In the 20th century, the content of the popular concept, as we see, has undergone significant changes.

Cohabitation between a man and a woman is not reflected at all in the Family Code and, therefore, cannot be recognized by the legislator and society.

Thus, cohabitation is considered to be the actual cohabitation of persons who are in a sexual relationship, leading a joint household and having a common life, but who have not registered their relationship as a marriage in the manner prescribed by law.

In fact, cohabitation has all the signs of marriage and does not even exclude the possibility of having children, but it is not such because it is not properly formalized. And therefore it does not give rise to the legal consequences of marriage.

In some countries, a cohabitant still acquires some legal status. For example, in France there is a civil partnership, which is an intermediate form of marriage for cohabitants who do not want to burden themselves with family relationships. At the same time, in Ukraine, cohabitants can become heirs.

Despite the current state of affairs, a completely different situation took place in pre-war Soviet Russia. Thus, until 1944, an unregistered marriage was equal to a registered one. However, by decree of the Supreme Soviet of the USSR, de facto marriage was deprived of official status, and this norm is in force to this day.

Legislation

The Russian legal system does not provide for such a separate branch as marriage legislation: Russian legislation on marriage is part of family legislation, primarily represented by the Family Code. The legislator's attitude towards cohabitation and any other forms of marriage relations is reflected in paragraph 2 of Art. 1 IC of the Russian Federation. According to it, the state recognizes only a marriage concluded in a registry office - other forms of relationships, even when they exist in practice, are not considered marriage.

The basic rules and conditions for marriage are reflected in Chapter 3 of the RF IC. Chapter 4 of the RF IC defines the procedure for divorce. The procedural features of registering marriage relations, in turn, are clarified by Chapter III of the Federal Law of November 15, 1997 No. 143 “On acts of civil status”.

Civil and official marriage

To finally dispel any remaining doubts and dot all the i’s, let’s note: civil and official marriage in Russia are one and the same thing. However, in other countries there may be some differences. For example, where church marriages are recognized, they are also official along with civil ones. Thus, “official” marriage in the world is a broader concept than “civil” marriage.

But, as mentioned above, quite often civil marriage does not mean official marriage, but cohabitation.

Results

From now on, it is clear how actual marriage relations differ from those formalized in the registry office. We can say that this arrangement means the freedom of the spouses, the absence of responsibility and any guarantees. Therefore, officially formalized relationships are considered to be a more reliable union. In addition, neither the state nor the church recognize cohabitation.

Such relationships are often regarded as fornication and a mockery of the institution of family. However, it is not always possible to register with the registry office. This is especially true for people with non-traditional sexual orientation in Russia. Actual marriage is an intermediate link between the statuses of “boyfriend and girlfriend” and “husband and wife.” A normal stage of a relationship that should not be delayed. Everyone decides for themselves how to live. But a civil marriage gives spouses special rights, duties and responsibilities.

Rights of “common-law spouses” (cohabitants)

Since actual marital relations are not considered by law as a marriage union, they do not give rise to legal consequences. Consequently, a “civil” husband and wife, being in fact cohabitants, do not acquire any mutual marital rights and obligations in relation to each other.

However, some rights, although not within the framework of marriage, may still arise. In particular, when living together, a situation may arise when cohabitants acquire some inheritance rights, rights to division of property, and even become parents. Let's consider these cases in more detail.

Inheritance for a partner

According to the provisions of Section V of the Civil Code of the Russian Federation, the right to inheritance is for the most part granted to relatives and family members of the deceased - cohabitants are not included in the circle of heirs by law. This, however, does not mean that a cohabitant or common-law spouse will not be able to obtain this right to inherit for his/her cohabitant. Thus, law enforcement practice and legislation provide for at least two cases when cohabitants can inherit from each other, namely:

• when they, according to Art. 1119 of the Civil Code of the Russian Federation, included in the will - the testator has the right to bequeath his property to anyone, including his cohabitant;
• when the surviving cohabitant, according to Art. 1148 of the Civil Code of the Russian Federation, is a disabled dependent of the deceased (he was supported by him before his death) - in this case, he inherits according to the law on an equal basis with other heirs of the called line.

Children in cohabitation

Even a general description of the composition of the relationship between cohabitants allows us to speak of actual marital relations, although they are not officially registered. Naturally, children often appear as a result of such relationships. But even their presence does not transform cohabitation into marriage.

Nevertheless, children should not suffer from such non-recognition by the state, and therefore, according to Art. 53 of the RF IC, children born from cohabitants have the same rights in relation to their parents and relatives as children born from spouses. This applies, in particular, to the right to alimony, to education and care, to full development, inheritance, residence, and so on.

The only condition is that the paternity of the child must be established legally. This can be done for unmarried individuals by submitting a joint application.

Division of property of cohabitants

Actual cohabitation, as we have already determined, is not considered by family law as marriage, and therefore does not give rise to joint marital property acquired while in such a union. And since such property is not common marital property, it is not possible to divide it according to the rules of the RF IC.

All rights to property in cohabitation are determined based on the title documents: to whom the property is registered, the property belongs.

In practice, the division of property of cohabitants as common property is possible only in exceptional cases, in particular, by filing a claim for recognition of common shared ownership of specific property.

During the trial, the cohabitant will have to prove the fact:

• living in a de facto marital relationship;
• maintaining a common household and living together;
• formation of property that must be recognized as common during cohabitation;
• financial or property investment in property recognized as common.

Find out in more detail how property is divided if the man and woman living together were not officially married.

Differences between legal and actual marriage

From the outside, both unions are perceived as a family. Cohabitees, like legal spouses, can have children that they raise together. The difference between these types of marriage is more legal than everyday.

Official union as a transaction

A registered marriage presupposes that the spouses enter into certain legal relationships, namely:

• All property acquired during the existence of a marriage is recognized as common property. It does not matter, in this case, to whom the ownership is registered;
• To conclude a transaction on common property by one of the spouses, the written consent of the other spouse certified by a notary is required. Otherwise, the transaction may be declared invalid;
• First line of inheritance;
• Debts, like property, are also recognized as common;
• In the event of a divorce, the spouse left without housing has the right to live for some time in the premises of the spouse provided with living space.

The established rules may not apply if a marriage contract is drawn up that regulates property issues.

Relationships without obligations before the law

When the union is de facto, the cohabitants are not responsible for each other’s debts and do not undertake to account for the property registered in their name to the partner. Naturally, we are not even talking about the first line of inheritance. However, children born in an unregistered marriage still inherit the property of their parents, and in their other rights they are equal to legitimate children.

Thus, a marriage-like relationship is not a transaction at all, as one might say about a civil marriage, but a cohabitation without legal obligations to each other.

State benefits do not apply to cohabitants, and banks are in no hurry to issue them loans (a legalized union inspires more confidence among creditors than an actual marriage relationship).

Options for actual marriage

Most often, actual marriage attracts young people who want to try themselves in family life, planning to register their relationship in the future. This is a so-called trial union, because such actual marital relations have no legal significance.

Sometimes mature people who were previously in an unsuccessful marriage and have lost trust in them enter into informal relationships. This is a repeat marriage. Only a small proportion of citizens are ardent opponents of a stamp in their passport, who consider formalizing relationships to be a waste of time. It is precisely such a case that can be defined as cohabitation in its pure form.

In the following video, a famous lawyer talks about the advantages and disadvantages of civil marriage:

Recognition of cohabitation

Now we propose to find out whether actual marriages are currently recognized. Thus, despite the lack of definition and qualitative characteristics of cohabitation in legislation, terms such as “de facto marital relations” and “cohabitation” are often used in Russian judicial practice. This, in turn, indicates the admissibility of using such concepts in legal terminology and official documents.

The need to recognize cohabitation as a legal fact often arises in practice: for example, when dividing the common property of cohabitants, protecting the rights of common children, and so on. That is, despite the lack of recognition by the legislator, state institutions can still recognize cohabitation.

Next, we will figure out how to recognize a civil marriage under the current legal system. Obviously, only a judicial authority can recognize it, and only through some third-party procedure requiring the establishment of actual marital relations. The recognition of a de facto marriage itself cannot be the subject of a lawsuit. However, no one prohibits the use of such relationships and information about them as some kind of evidentiary connection.

So, in order to recognize cohabitation, it is necessary to prove in court that the man and woman:

• lived together for a long time;
• had a stable relationship, had a common household and shared life;
• were perceived by others as a married couple;
• formed a common family budget;
• mutually ensured each other's financial obligations.

Actual marital relations

The term “de facto marital relationship” was introduced into use in Russia in 1926 with the adoption of the Code of Laws on Marriage, Family and Guardianship, according to paragraphs 11, 12 of which it was considered that persons are in de facto marital relations if these persons mutually recognize each other as spouses , or if the marriage relationship between them is established by the court based on the actual circumstances of life.

Evidence of marital cohabitation in the event that the marriage was not registered is for the court: the fact of cohabitation, the presence of a common household in this cohabitation and the identification of marital relations to third parties in personal correspondence and other documents, as well as, depending on the circumstances, mutual material support, co-parenting, etc.

That. Until 1944, a joint household and a common bed were considered a sufficient condition for recognition of an actual marriage as “real” - with all the ensuing rights and obligations.

By the decree of the Presidium of the Supreme Soviet of the USSR of July 8, 1944, de facto marriage relations were deprived of legal force. Persons who were members of them were given the opportunity to register a marriage, indicating the duration of their actual life together. If such registration turned out to be impossible, since one of the de facto spouses died or went missing at the front during the Great Patriotic War, then by the Decree of the Presidium of the Supreme Soviet of the USSR dated November 10, 1944, the other de facto spouse was given the right to apply to the court for recognition his (her) spouse who died or disappeared on the basis of previously existing legislation.

The fact of being in a de facto marital relationship could be established by the court in accordance with Article 247 of the Code of Civil Procedure of the RSFSR only in the presence of the following set of circumstances:

• only in the event of the death of one or both spouses;
• only if the actual marriage relationship arose in the period from 1926 to July 8, 1944;
• only if the actual marital relationship continued until the death of one of the persons in it;
• none of the persons who were in a de facto marital relationship was in another marriage before their death.

Marriage and cohabitation: similarities and differences

Having figured out whether the concepts of actual marriage and civil marriage are identical and having answered the question why this happens, we will figure out what is common and what is special about them.

If we discard the legal component and focus exclusively on the moral aspects of the issue, then these concepts have no differences. Each union is based on the principle of voluntary union between the parties, each in theory provides for family relationships, running a common household, having children, and so on.

However, the legal meaning of the concept of “marriage” neutralizes all their similarities, and the differences come to the fore. Thus, the main difference between marriage and cohabitation is the registration of the former with government agencies. It gives rise to all the legal consequences inherent in marriage under the law, which is impossible with cohabitation.

Marriage and cohabitation: advantages and disadvantages

Over the past two decades, people are increasingly arguing about what is better - cohabitation or official marriage. We propose to consider the pros and cons of both of these statuses.

Thus, the main argument of the followers of “free relationships” is this very freedom. When living in cohabitation, a couple is not burdened with many legal formalities: changing the surname, the need for the spouse’s consent when conducting transactions, indicating the spouse in the income statement, and so on.

At the same time, the lack of recognition deprives cohabitants of conjugal rights, including the right to maintenance, common property, inheritance, automatic recognition of the father as the child’s parent, and so on, which is perceived by opponents of cohabitation as a complete insecurity of status.

As for official marriage, its pros and cons are directly opposite to the pros and cons of cohabitation. Yes, a registered marriage union does guarantee spouses some legal protection of their status, giving rise to a lot of rights, responsibilities and consequences. But at the same time, there is a need to comply with many formalities that are excluded in the case of cohabitation. In favor of what to choose in this case, everyone will have to decide individually.

What to choose

Now it is clear what actual marriage is. Its pros and cons are obvious. In addition, its differences from a civil union are also no longer some kind of secret. Some couples don't know what exactly to choose. Which relationship option is most beneficial? Civil marriage with official registration is the union that is preferred. Such a scheme for running a joint household protects spouses as much as possible from deception and injustice. Yes, getting married will be a rather serious step with increased responsibility. But in such relationships there are more pros than cons.

The actual union cannot be crossed out either. This is a normal stage in the development of relationships. The main thing is not to stay in such an alliance for too long. For example, you can submit an application to the registry office, then move in together and live in a de facto union until the official registration. It is this decision that becomes the most logical.

It is noted that long-term residence without a registered relationship in Russia is most often welcomed by men. The stronger half of society considers their cohabitants to be ordinary girls, while women believe that they have the status of wives, but without a stamp in their passport. It is noted that people who live for a long time without painting either live like this all the time, or sooner or later separate. Having a wedding in this situation is not so easy - it is not always possible to prove the need for action.