Barriers to marriage
Marriage in family law. Conclusion
Marriage and its recognition as invalid.
Question 1. Concept and history of marriage
Question 2. Conditions for marriage and circumstances preventing marriage
Question 3. Procedure for registering a marriage
Question. 4 Annulment of marriage
Question 1. Concept and history of marriage
In the history of the development of family law, there have been and still are many different points of view on the legal nature of marriage.
Thus, Roman law evolved from an understanding of marriage as the unconditional power of the husband over his wife, where the husband was the subject of this power, and the wife the object, to the idea of complete marital equality and independence.
In foreign legislation, marriage is considered as a transaction, as a status and as an institution of a special kind. For example, in Syrian, Iraqi and Jordanian legislation, marriage is considered as a contract between a man and a woman who is legally capable of being his wife, concluded for the purpose of living together and procreating the family. Proponents of the position of considering marriage as a transaction are based on the fact that certain requirements are imposed on the procedure for concluding a marriage, the conditions for its validity, and the termination of a marriage. Some relationships in marriage can be regulated on the basis of an agreement: property relations during marriage and after its dissolution.
The second point of view on marriage as “a status that is acquired by a subject in
as a result of performing actions prescribed by law. Possession of this status allows the subject to be classified as married people.”
Supporters of the position that marriage is a special kind of institution refer to the fact that marriage has, first of all, the goal not of creating property consequences, but of moral and spiritual content. Most legal relations that arise in marriage are not regulated by law.
Russian legislation does not define the concept of marriage. However, based on an analysis of the norms governing marriage, the following definition can be derived.
Marriage is a voluntary union of a man and a woman, registered with the civil registry office, aimed at creating a family and giving rise to mutual personal non-property and property rights and obligations.
In the Russian Federation, marriage is concluded without specifying a period. In some countries, for example Muslim countries, temporary marriages are common. Their appearance was explained by the fact that “many men participated in the caravan trade; they acquired temporary wives in populated areas, where the caravans sometimes made quite long halts. Subsequently, temporary marriage was legalized.” In Muslim countries, for such a marriage to be valid, a period must be specified in the marriage contract and the issue of dowry must be stipulated. At the end of the marriage, the dowry is returned to the wife.
Question 2. Marriage conditions and circumstances,
preventing marriage
Conditions for marriage are circumstances the presence of which is necessary for marriage (Article 12 of the RF IC). Marriage should not be concluded if there are circumstances that prevent marriage, provided for in Art. 14 IC RF.
To get married you must:
1) mutual voluntary consent of a man and a woman to marry
. Same-sex marriage is not allowed in the Russian Federation. The will of persons entering into marriage must be expressed personally and freely, without any coercion (threats, violence, both physical and mental, not only from persons entering into marriage, but also from other persons). Criminal law provides for liability for forcing a woman into marriage;
2) marriageable age
. Until the beginning of the 18th century. in Russia, the marriageable age for girls was 12 years old, and for boys - 15. Moreover, the tradition was to marry children at 8 - 10 years old, and sometimes
and earlier, as a rule, in order to more profitably marry a daughter into a certain family
or become related to a famous family. At the beginning of the 18th century. Peter I established a new marriage
age: for boys – 20 years, for girls – 18.
Currently, the general marriageable age in the Russian Federation is
coincides with the age of full civil capacity - 18 years. Reaching marriageable age is required at the time of marriage registration. Due to the fact that actual marital relations develop at an earlier age, in accordance with paragraph 2 of Art. 13 of the RF IC, if there are valid reasons, local government bodies have the right to allow persons over 16 years of age to marry at their request. The marriageable age is lowered by local administration authorities at the place of residence of persons entering into marriage. Refusal to reduce the age of consent may be appealed in court. In France, permission to marry minors is given by the prosecutor, and in Spain - by the Ministry of Justice.
Reducing the age of marriage below 16 years is possible only in those subjects of the Federation where a law has been adopted establishing the procedure and conditions under which marriage, as an exception, may be permitted before reaching the age of 16. Such laws have been adopted in various subjects of the Federation: Kaluga, Moscow, Murmansk, Novgorod, Oryol, Rostov, Ryazan, Tver regions and other subjects of the Federation. For example, in the Moscow region, these issues are regulated by the Law of the Moscow Region of April 30, 2008 No. 61/2008-OZ “On the procedure and conditions for marriage in the territory of the Moscow region of persons under the age of sixteen.”
For residents of the Moscow region who have not reached 16 years of age, the age of marriage can be reduced to 14 years in the presence of one of the following circumstances: pregnancy, the birth of a common child (children) among citizens wishing to get married, an immediate threat to the life of one of the parties. The latter circumstance is extremely rare in practice. For example, a young man is about to undergo surgery in a hospital, the outcome of which is unknown.
In Russian legislation, unfortunately, there are no rules defining
This is interesting: Article 46 part 1 paragraph 4
unified approaches to the conditions for early marriages. Thus, in three subjects of the Federation (the Republic of Bashkortostan, Novgorod and Oryol regions) there are no age restrictions at all, i.e. Marriage may also be permitted to a person under 14 years of age. In other regions of the Federation, the age can be reduced to 14 or 15 years. In some regions of the Federation, marriage under the age of 16 is possible only if there is a pregnancy of 22 weeks or more, the termination of which is contraindicated by the conclusion of a medical commission. In a number of regions, it is possible to lower the age of marriage if there is an immediate threat to the life of one of the parties.
There is no upper limit for marriageable age in the Russian Federation. A large age difference is also not an obstacle to marriage;
3) marriage is not allowed between persons of whom at least one is
in another registered marriage.
This condition corresponds to the principle of monogamy
marriage. When registering a marriage, previously married persons must present a document confirming the termination of the marriage (divorce certificate, death certificate of the spouse, etc.). In accordance with paragraph. 3 p. 2 art. 25 of the RF IC, spouses do not have the right to enter into a new marriage until they receive a certificate of divorce from the civil registry office at the place of residence of either of them.
In Muslim countries, polygamy is allowed. A man can have up to four wives. In this case, the spouse has the right to divorce the spouses. If a spouse divorces his wife three times, he will not be able to marry her again until she marries someone else. In Tunisia, under no circumstances can you marry your ex-wife for the fourth time;
4) marriage between close relatives is not allowed.
These include relatives in a direct ascending and descending line: parents and children, grandparents and grandchildren; as well as full and half brothers and sisters. In this case, the relationship can also be extramarital. This is explained by the inadmissibility of incest and the high number of diseases and malformations in the offspring of such marriages. Cousins (cousins) and more distant kinship, as well as property relations (marriages between half-brothers and sisters are not prohibited) are not an obstacle to marriage;
In practice, sometimes disputes arise over which persons can be considered close relatives. So, citizen I. and citizen A. decided to register their marriage. A. was I.’s brother on his father’s side. A.’s mother was not married, but after A.’s birth a joint application was submitted to the civil registry office for recognition of paternity. Father I. recognized A. as his son, although, according to him, he was not the actual father. I. and A. turned to the civil registry office with a question whether they could register the marriage, despite the fact that legally they have a common father, but he is not the actual father of A.
A representative of the civil registry office responded that this was unacceptable, citing paragraph. 3 tbsp. 14 of the RF IC, according to which marriage is not allowed between close relatives, including half-brothers and sisters, which legally are I. and A. Since the father of I. and A. was ready to renounce paternity for the sake of the children, I. brought to the civil registry office a statement from her father renouncing paternity in relation to A. However, they explained that renunciation of paternity is not allowed by Russian law. According to paragraph 1 of Art. 52 of the RF IC, the entry of parents in the birth register can only be challenged in court at the request of the person recorded as the father or mother of the child, as well as the child himself upon reaching the age of majority, the guardian (curator) of the child, or the guardian of the parent declared incompetent by the court. In addition, according to paragraph 2 of Art. 52 of the RF IC, the request of a person registered as the child’s father to challenge paternity cannot be satisfied if at the time of recording this person knew that he was not in fact the father of the child. Thus, A. can apply to the court to challenge paternity.
5) marriages between adoptive parents and adopted children are prohibited,
which is justified by ethical considerations, since the legal relationship between these persons is legally equivalent to the relationship between parents and children;
6) it is not permitted to enter into marriage between persons, at least one of whom has been declared incompetent by the court
due to mental disorder. This is due to
medical considerations, as well as the inability of an incapacitated person to give informed consent to marriage, which leads to non-compliance with the principle of voluntariness of a marriage. This provision does not apply to persons with limited civil capacity.
Our legislation does not provide for any other restrictions other than those mentioned above, although in some countries there are other restrictions. Thus, in some states of the United States, it is prohibited for mentally ill people or those suffering from certain types of sexually transmitted diseases to marry. In Great Britain, marriages between in-laws are prohibited. In Bulgaria, marriages between relatives in the descending and ascending lines up to the fourth degree of kinship are not allowed. Some countries require that a certain amount of time must pass after the dissolution of a marriage or the death of a spouse before the spouse can remarry.
There was a period in the history of Russian development when marriage could be entered into only with a certain level of education. Peter I, in order to attract young people to study, forbade children of the nobility, children of clerks and clerks to marry without a document of education - a “certified letter”. Currently, the level of education has no significance for the possibility of registering a marriage.
In the Russian Federation there are no obstacles to marriage based on religious beliefs, as, for example, in some Muslim countries, where a Muslim woman cannot marry a non-Muslim man.
