Signs of kinship
Kinship presupposes a blood connection between two people. One object may be born from another, or they may both come from a common parent. Depending on this relationship, kinship is already divided into species. It becomes clear that there are supposed to be two people connected by blood. A large number of other relatives is no longer the scope of definition of kinship. This specificity is important specifically for family law, since it helps to distinguish between specific subjects of such relationships, and also determines the degree of closeness between them.
Already taking into account this definition, a general concept is formed - kinship, property and their legal meaning.
What is needed to confirm relationship?
In addition to the papers that must be attached to the application to the notary, you must provide the basis for the relationship between the heir and the testator. Typically, these documents include:
- Birth certificate;
- Certificate of marriage or divorce;
- Information about change of surname;
- Paternity information.
Case in practice:
Mother and daughter lived in a two-room apartment, which they purchased in equal shares. Mother is dying. Since she married twice, her surname changed throughout her life. In addition, she first lived in the Republic of Kyrgyzstan, and then moved to live in St. Petersburg.
After the death of her mother, the daughter turned to a notary with an application to issue a certificate of inheritance. The notary issued a decision to refuse to perform a notarial act, where he indicated that the applicant must certify her family relationship with the deceased. To do this, she should file a claim in court to recognize a fact of legal significance.
The daughter followed the notary's recommendation and used the help of an inheritance lawyer to draw up an application and collect the necessary documents.
In her statement of claim, she indicated that the deceased was her mother. To support her claims, she presented a birth certificate, where the mother's last name was completely different from what was indicated in the passport.
In order to prove the fact of a change of surname due to marriage, it was necessary to make a request to the archives of the Republic of Kyrgyzstan.
The court also requested a secondary marriage certificate indicating the change in the previous surname.
After receiving the archival document, it was examined in the process, then it was given a legal assessment. Given this assessment, the court concluded that the information contained in the plaintiff's birth certificate, marriage certificate and passport of the deceased proved that the deceased was the mother of the plaintiff. The change of surname took place legally.
After the court assessed this fact, it made a decision to satisfy the plaintiff’s demands.
When the court decision entered into legal force, the plaintiff turned to a notary, after which he received a certificate of inheritance, since the surname on the birth certificate and other data are indicated for the same person.
Types of kinship
Kinship is divided into two main types - direct and lateral. Already the first concept has its ramifications in the form of descending and ascending kinship. The lateral includes partial and full.
Before learning more about kinship and property in family law, it is important to define each type of kinship separately.
We talked about lateral and direct in the previous paragraph. Such relationships in the first case presuppose a relationship, for example, of two sons, and in the second - a mother and a child.
Ascending implies a relationship that begins with descendants and ends with ancestors. Descending, on the contrary, from ancestors to descendants.
Accordingly, consanguineous kinship implies the presence of one father and mother. Incomplete - the existence of only one common relative, father or mother.
There is a special subgroup in lateral kinship - these are half-brothers or sisters. The children of the spouses are not common; they were born during the previous union or marriage. In this case, they will not be important subjects of family law, since they are not related by blood.
Degrees of relationship
In addition to this division, kinship is also determined by degrees. The concept is formed due to the number of births, which are the connecting link between two loved ones. It is important that recording the ancestor of these relatives is not necessary for family law. For example, a situation when a father has a son. There was only one birth for this event, so the degree will be first. If the birth of a child is already associated with his grandfather, then a second degree is formed between them, because it took not one, but two births.
Such relationships can expand greatly, making it sometimes difficult to calculate the degree of relationship. For this reason, relationships of this type are of interest to family law when a close relationship is formed. Thus, the bias is made only on the first or second degree of relationship. These, as already mentioned, are grandmothers and grandchildren, brothers and sisters, fathers and children. Before learning about the relationship between the concepts of kinship and properties, it is necessary to study the legal meaning of the first concept.
VI. Property
Marriage produces a rapprochement not only between spouses, but also between their relatives, and this connection between famous persons, based on the marriage of two persons belonging to different clans, is called property.Concept of property
borrowed from Roman law; from Roman law it passed into the canon law of the Greek Church, and from here, together with the Christian faith, to us. Of course, the concept of property could have been born independently of Roman law, for marriage naturally brings the relatives of the spouses closer together, but Roman law elevated this natural rapprochement to the level of a legal institution, connected it with practical consequences, and these legal definitions were borrowed from Roman law.
But canon law did not stop with the concept of property
, which Roman law had, but expanded it; while Roman law understood the connection between one spouse and the relatives of the other spouse as property (affinitas), the canon law of the Greek Church, and after it ours, began to understand by property the connection not only between one spouse and the relatives of the other, but also between the relatives of the spouses , even the connection between the relatives of one spouse and the relatives of the other.
Thus, the property appears to be bi- or tri-genus: bi-gender is the property that brings together members of two clans through one marriage, therefore, the property between one spouse and the relatives of the other and the property between the relatives of the spouses; tripartite is a property that brings together members of three clans” through two marriages, therefore, a property between one spouse and the relatives of the other spouse and a property between the relatives of one and the relatives of the other spouse. It is clear that it is possible to admit a four-gender property - between the relatives of one spouse and the relatives of the other, and in the same way one could admit a property of five, six, etc.; but a property beyond the trigender, not being associated with any practical consequences, no longer has legal significance.
Like kinship, property is measured in degrees
. But the question is, how to determine the degree of property between given persons? If we are talking about the property of one spouse with the relatives of another - about property, as Roman law understood it, then measuring the property does not present any difficulty: according to the definition of Roman law, which passed into our Pilot's Book, the spouse is in the same degree of property with a relative of his spouse , to what extent his spouse is related to that relative. Thus, son-in-law and father-in-law are in the first degree of property, because the father-in-law is in the first degree of kinship with his daughter - the son-in-law's wife. But if we are talking about the degree of property between relatives of spouses, then the calculation is somewhat difficult. It seems to us that it should be done this way: count the degree of relationship in which a relative of one spouse is with one spouse, then count the degree of relationship of the spouse with a relative of the other spouse and add these two degrees; the amount will show the degree of property between the relatives of the spouses.
This is how the relationship between the father-in-law and the brother-in-law of the third degree is determined. The same calculation must be made to determine the property of a tripartite: the degree of the property of a spouse with the relatives of the other spouse will be determined by the degree of the property of this second spouse, only the type of the property will be different - it will be tripartite. So, if A and B are in the fourth degree of the property of two-generation, then spouse A is with B in the fourth degree of the property of three-generation. To determine the degree of relationship between the spouse’s relatives and the other spouse’s relatives, you need to add the degree of relationship with the spouse with the degree of relationship between him and the other spouse’s relatives; the amount will show the degree of relationship between these persons - a relative of one spouse and a relative of the other. So, A is in the second degree of kinship with Div in the fourth degree of the trigender property with C, which means B and C are in the sixth degree of the trigender property.
Legal meaning of the property
manifests itself primarily in the prohibition of marriage between persons belonging to certain degrees of property, although the prohibition here does not extend as far as the prohibition of marriages by kinship: marriages between relatives are prohibited only up to the fourth degree of property inclusive. But, in addition, the property has an impact on the legal relations of individuals in some other individual cases; for example, it serves as a basis for challenging judges, witnesses,” etc.
Finally, the question arises: should not the relationship between spouses also be considered a property if their marriage produces a property between their relatives? But the connection between spouses is an independent marital relationship, and is not considered a property. According to the idea of marriage and the view of the Christian religion, marriage produces unity between spouses, so that, one might say, the marital relationship produces a merging of the personalities of the spouses, although, however, this merging, according to our legislation, does not concern the sphere of property rights.
In any case, legal definitions of property do not concern spouses: thus, property has an impact on marriage; but there can be no talk of marriage between spouses: the removal of relatives from the certificate still does not apply to the spouses, although, of course, they are removed, but not because they are considered in property, but for the same reason that relatives are removed from the certificate and relatives - as persons close to each other and hardly impartial; Likewise, in other relationships there are special definitions for spouses. The connection between relatives does not end even after the marriage ends. But, of course, this connection has legal significance only if the marriage that served as its basis is valid. As for inheritance, the law directly says that property does not give the right to inherit by law
What type of relationship has legal significance?
Very often you can come across the question of what kind of relationship has legal significance - biological or legal?
Despite the fact that relationships between relatives exist only for biological reasons, their existence is determined by the relevant certificates or documents. Thus, it is fair to say that blood ties do not play a decisive role in jurisprudence unless they are supported by documentation. Only in such a case can such kinship be considered from the point of view of law, and not for the simple reason of its existence as such. For example, if the child’s father is not biological, but the documents state that he is the de facto parent, then that means he will be treated as such. No one will take into account the fact that there are no blood ties.
Current views
Thus, we can say that there are only two points of view (regarding the right) to kinship. For example, in the first case, the connection between people serves as the reason for the emergence of accompanying rights and responsibilities that all participants in the relationship must fulfill. Some, in fact, perform them differently, depending on the degree of intimacy. In another version, kinship exists as a reason to prohibit the emergence of family relationships (marriage) between subjects. Let's say a brother and sister cannot subsequently become husband and wife. And this is legally enshrined in Article 14 of the Family Code of the Russian Federation.
Important information is that closely related relatives cannot become husband and wife. In other cases, such as when an uncle wants to marry his niece, it is acceptable. This happens because the degree of proximity is quite extensive. And legally they will be presented not as relatives, but as spouses.
Kinship, property and their legal meaning
Property is not a particularly significant concept for family law, since this definition is not considered there. They talk about him only in general terms. Despite this, property has a number of its own definitions, which make it a unit of family law. For this reason, the concept of kinship, properties and their legal meaning arises. Both of these concepts are quite important in jurisprudence under certain circumstances.
The first definition assumes that the spouse and the immediate family of the other spouse create properties in the process of relationship. In the second case, the property is considered to be the connection between the relatives of both spouses. In this case, the subjects are called in-laws. It is important that they do not have blood ties with each other, since a special relationship has arisen between them that would not have appeared without marriage.
When the marital relationship ends, that relationship comes to an end. The properties no longer exist in a particular situation. This is also stated in the Family Code of the Russian Federation.
The only lasting relationships occur when properties arise between stepsons and stepmothers or stepdaughters and stepfathers. In this case, it has legal significance, since at any time a stepson or stepdaughter can apply for alimony (Article 97 of the Family Code).
persons belonging to the property
When qualifying beatings under Art. 116 of the Criminal Code of the Russian Federation and the differentiation of this crime from a related administrative offense, the correct determination of the content of the sign “close persons” is crucial. The legislator in the Note to Art. 116 of the Criminal Code of the Russian Federation proposed a definition of this characteristic. At the same time, law enforcers experience serious difficulties in interpreting it.
The concepts of “persons in property” and “persons running a joint household” do not have legal definitions.
The concept of “relations of property” includes relations arising in connection with marriage between a spouse and the relatives of the other spouse, as well as between the relatives of the spouses themselves.
Relatives are the parents, children, brothers, sisters of the spouse, as well as the specified relatives among themselves.
The fundamental difference between in-laws and relatives is the presence or absence of consanguinity. Kinship presupposes a blood connection, but property does not. Relationships of property arise exclusively from marriage, and from an active marriage. Divorce of marriage ends the property relationship.
The following persons cannot be recognized as belonging to the property:
– cohabitants, since they are not in a registered marriage;
– relatives of one of the cohabitants in relation to the other cohabitant (for the same reason);
– relatives of former spouses (after divorce).
In relation to Art. 116 of the Criminal Code of the Russian Federation is recognized as a close person, regardless of whether he maintains any relationship with the guilty person, whether he has a common household with him or not.
Who should be considered as “persons running a common household”? Maintaining a common household is recognized if there is a joint budget, common expenses for the purchase of food, property for joint use, maintenance of housing, etc.
To persons running a common household, judicial practice in cases of crime under Art. 116 of the Criminal Code of the Russian Federation, as already noted, includes cohabitants if the specified signs are present (joint budget, common expenses, etc.). Former cohabitants are excluded from the category of close persons.
The problem of interpretation of the concept of “close persons” is associated with the use in the Note to Art. 116 of the Criminal Code of the Russian Federation, terms that do not have legislative definitions often give rise to contradictions in judicial practice on the issue of distinguishing between criminal battery and battery entailing administrative liability.
An equally important issue is the advisability of establishing criminal liability for beatings of loved ones.
Since criminal legislation does not know examples of differentiation of responsibility for violent attacks and attacks against bodily integrity on the basis of “in relation to persons close to the perpetrator,” and judicial practice under Art. 116 of the Criminal Code of the Russian Federation in its old version does not indicate a more stringent punishability of beatings against loved ones, it is unlikely that the difference in the social danger of beatings of close persons and persons who are not such really exists.
We believe that sectoral differentiation of liability for battery on the basis of “in relation to close persons” is unfounded and should be excluded. If the legislator does not consider beatings (in the absence of hooligan and extremist motives) to be a socially dangerous act, then the most correct solution to the problem would be to decriminalize beatings against close people, in the absence of administrative prejudice for a similar act.
