Termination of marriage in private law. Thesis: Marriage in Private International Law
Introduction
Chapter 1. General characteristics of the legal regulation of marriage and family relations in private international law
1.1 The concept of marriage and family relations in private international law
2.1 Order of marriage
2.2 Termination of marriage
Conclusion
Introduction
The question of the rights of a Muslim woman is a great difficulty for objective consideration, which is primarily due to the historical position of women in Muslim society; the different status of Muslim women in the countries where they live; the remoteness of the settlements of these countries from local administrative-territorial centers.
Family issues and the position of a Muslim woman in the family and society is a complex of problems, each of which is a complex interweaving of a wide variety of issues, such as polygamy, early marriages, marriage gifts, and many others.
Modern science deeply and comprehensively studies the problems of marriage and family. The family, its role in the life of an individual, society as a whole, in our time is the focus of many studies. It is considered as the main cell in which the reproductive attitudes of citizens are formed and implemented. The family is a necessary element in the development of society, which ensures population growth, the physical and spiritual education of the younger generation, and the satisfaction of a person's natural needs for love and communication. It has been noted that the psychophysical state of the members of society depends mainly on the family. The family is a great blessing and joy for a person. The lifestyle of the family to a certain extent predetermines the family lifestyle of the child in the future.
The lifestyle of a Muslim has not changed for centuries. Naturally, the attitude towards a woman, established by traditions over such a long period, cannot change with the adoption of any legal acts. In addition, given the relatively recent emergence of legislative acts in the field of Muslim family law (if we compare it in time with the emergence of customs in the field of family relations, as well as with the adoption of the Muslim faith), it can be reasonably assumed that such acts, not only could not be assimilated by the consciousness of a Muslim, but he could simply not hear about them, and therefore not fulfill them, especially since the system of supervision over the implementation of normative acts is not sufficiently developed.
Muslim law, unlike other legal systems, pays great attention to the regulation of family and marriage legal relations, and the legal status of women, in particular. At the same time, it should be noted that in the Muslim society, religion was, and in some countries of the Muslim world still remains the basis for regulating these legal relations.
The relevance of the research topic is due to the following circumstances:
1. The culture of the Arab countries, including family and marriage relations, has left a deep mark on world civilization.
2. Starting from the second half of the last century, the Islamization of public life is experiencing a kind of renaissance, observed in a number of countries in the Middle and Near East.
3. The process of Islamization leaves its mark on the family and legal status of women in Muslim countries, which has become especially relevant in connection with the involvement of Muslim women in public life and ensuring their true equality.
4. Interest in comparative legal studies of the family and legal status of women in various countries is not only not weakening, but is increasing, covering a wide range of previously unstudied issues in this area.
5. Of great scientific interest is the study of the ideological and social concepts and foundations of Islam on the family and legal status of women. For the Russian Federation, such a study and scientific analysis are of practical importance, since family relations among the peoples of Tatarstan, Bashkartostan, Ingushetia, Dagestan and the Chechen Republic are practically regulated not only by the relevant norms of Russian legislation, but also by the norms of Islamic law.
The degree of scientific development of the research topic. In modern literature, it is recognized that comprehensive studies of the theory and practice of Islamic law in the legal sense are rare. In separate editions of A. Masse, L. Syukiyainen, G. Kerimov, questions of the history and theory of Muslim law, as well as the topic of family law, are touched upon.
Issues of proper Muslim family law are devoted to the "Statements of the Principles of Muslim Jurisprudence", compiled by N. Tornau and published back in 1850 (reprinted reprinted in 1991). Three years later, the brochure "Nikah. Some clarifications on marriage according to Sharia" was published. This topic is devoted to the "Fundamentals of Muslim Family Law" by M.V. Vagabov and N.M. Vagabova, "The law of the life of Muslims" G.N. Kerimov. Several thematic articles on Sharia family law can be found in the book "Islam: An Encyclopedic Dictionary" (1991). Important information on the topic under consideration is contained in the translated works of Muslims, for example, Yousef Al-Qaradawi "Halal and Haram in Islam" (translated from Arabic), in various comments on the suras of the Koran devoted to family legal relations.
During the study, the following research methods were used:
1. analysis of the existing source base on the issues under consideration (method of scientific analysis).
2. generalization and synthesis of points of view presented in the source base (method of scientific synthesis and generalization).
3. modeling based on the obtained data of the author's vision in the disclosure of the problematics (modeling method).
The object of the work is the regulation of marriage and family relations in private international law.
The subject of the research is particular issues of regulation of marriage and family relations in private international law.
The purpose of the work is to study the legal regulation of marriage and family relations in private international law.
The goal set defines the objectives of the study:
1. Analyze the main sources of legal regulation of marriage and family relations in private international law;
2. Show the procedure for concluding and terminating marriage in private international law;
3. To identify the features of the legal status of children in marriages complicated by a foreign element;
4. Consider legal conflicts and ways to resolve them that arise in the marriage and family relations of Russian citizens with citizens of Muslim countries.
The work consists of an introduction, three chapters of the main part, a conclusion and a list of references.
Chapter 1. General characteristics of the legal regulation of marriage and family relations in PIL
1.1 The concept of marriage and family relations in PIL
Marriage and family relations are complex relations of a personal non-property and property nature, based on family ties and regulated by the norms of civil (in the broad sense of the word) law. In many countries, there is no family law as an independent branch of law, and family relations are regulated by civil law (Germany, Switzerland). In France, the first Family Code was adopted only in 1998. In most modern states, family law is separated from civil law, codified and is an independent branch of law (Russian Federation, Algeria, countries of Eastern Europe and Latin America).
The legal regulation of marriage and family relations has a significant public law component. The doctrine defines family law as a conglomeration of private and public norms. Of course, family law is included in the system of private law branches of national law, but state regulation is manifested here much more clearly than in civil law.
This is due to the fact that any state pursues a certain demographic policy, tries to control the reproduction of the population and provide appropriate conditions for the development of a new generation.
In the normative acts of most states there is no legislative definition of marriage, and its legal problems are not fully resolved either in laws or in doctrine. It is practically generally accepted that marriage is a legally formalized voluntary union of a man and a woman, aimed at creating a family and presuming joint cohabitation with a common household.
Immediately, it should be noted that such a definition of marriage does not correspond to the law of all states (for example, those states whose legislation allows same-sex or polygamous marriages). In the modern doctrine of law and jurisprudence, marriage is defined as a marriage-contract, marriage-status or marriage-partnership. The most common point of view is that marriage is a contract, a civil law transaction that gives rise to personal and property rights and obligations of spouses. Family relations with a foreign element are an integral part of international civil relations.
The foreign element in marriage and family relations can manifest itself in all its variants. In the legislation of some states, "foreign" (between foreigners) and "mixed" (between foreigners and their own citizens) marriages are specifically distinguished. Family relations are connected to the maximum extent with national traditions, religion, everyday and ethnic customs, and therefore the family law of different countries is fundamentally different and practically cannot be unified.
All this causes serious conflicts of laws in the field of marriage and family law. Numerous conflict problems arise primarily because the relevant substantive norms of different states differ significantly from each other.
For example, the concept of "marriage" in German substantive law means an officially concluded, subject to certain formalities, union between a man and a woman for living together and creating a family. From the point of view of German conflict law, this concept includes cohabitation, which is not formalized and is of a temporary nature. The German legislator takes into account that foreign law (the statute of the place of marriage or the statute of the consequences of marriage) may decide this issue differently and include in the concept of "marriage" temporary cohabitation, which is not a marriage from the point of view of German substantive law. The question of what form of living together is recognized as marriage is decided on the basis of the law of the essence of the relationship (the statute of the place of marriage).
As a result, we can come to an unambiguous conclusion: the conflict-legal framework for regulating marriage and family relations should be wider than substantive ones.
The main conflict-of-law problems of marriage and family are as follows:
1) the form and conditions of marriage;
2) racial and religious restrictions;
4) the need for permission (diplomatic, parents or guardians) to enter into marriage;
5) personal law (supremacy) of the husband;
6) marriage by proxy and through a representative;
7) polygamy and monogamy;
8) same-sex marriages;
9) legal responsibility for refusing to enter into a promised marriage;
The doctrine and judicial practice of some states, when resolving disputes in the field of family relations with a foreign element, widely use the theory of statutes: a single family (marriage) statute, the statute of the general consequences of marriage, the statute of the right to a name (change of surname due to marriage), the statute of marriage, the statute of divorce, the statute of property relations of spouses, etc. The application of the theory of statutes allows more detailed regulation of all issues of marriage and family relations.
It is in the sphere of marriage and family relations with a foreign element that the need most often arises to resolve a preliminary conflict issue (for example, the question of the validity of marriage to resolve the issue of the fate of the child in the event of termination of marriage), the problems of adapting conflict rules, the plurality of conflict bindings, "lame" relations and interpersonal conflicts, using public policy clauses. Almost all aspects of marriage and family relations are regulated through a "chain" of conflict rules.
The doctrine of law, with the help of comparative analysis, has identified the most common conflict-of-law bindings for establishing the applicable law:
1) the law of the place of marriage;
2) the personal law of both spouses;
3) the law of the country of permanent residence of the child;
4) the personal law of the adopter;
5) the law of competence of the institution;
6) the law of the court;
7) the law of the country of joint residence of the spouses;
8) the law of the last joint place of residence;
9) the law of the location of common family property.
All these bindings should be applied as uniformly as possible in the regulation of marriage and family relations (“family law statute”). The law of the court, as a rule, acts as an auxiliary means if the binding to foreign law does not allow to achieve the proper legal consequences aimed at establishing the “most favored nation principle” for the “weaker” party.
Attempts to unify marriage and family relations with a foreign element have been made since the beginning of the 20th century. At the universal level, a whole set of Hague conventions on family law has been developed: on the settlement of conflicts of laws and jurisdiction in the field of divorce and judicial separation of spouses of 1902; on the law applicable to maintenance obligations, 1972; on cooperation in the field of foreign adoption, 1993; on the settlement of conflicts of laws in the field of marriage in 1995, etc. (about 50 in total). These conventions contain mostly unified conflict of laws rules. The main disadvantage of the Hague Conventions is the limited circle of their participants. Many of them never entered into force because they did not receive the required number of ratifications. At the regional level, the conventions of the European Union of 1970 should be noted; on the legal status of children born out of wedlock, 1975, etc.; CIS Convention on Legal Assistance in Civil, Family and Criminal Matters, 1993
The presence of a whole range of universal and regional international agreements governing marriage and family relations has given rise to the term "international family law", which, however, is not yet widely used.
The Family Code of the Russian Federation codifies the legal norms relating to marriage and family relations with the participation of foreigners and stateless persons (Section VII). Such relations may be subject to both Russian and foreign law. In the event that a conflict issue is resolved in favor of foreign law, the procedure for establishing the content of foreign family law is determined (Article 166). This is the duty of the court and other competent authorities of the Russian Federation. The content of foreign family law is established taking into account its official interpretation, application practice and doctrine in the relevant foreign state. The court has the right to apply to the Ministry of Justice of the Russian Federation, other competent authorities and to involve experts in order to establish the content of foreign legal norms.
The parties also have the right to take actions provided for in the legislation in order to assist the court in establishing the content of foreign family law. The Family Code contains a clause on public order (Article 167) - the norms of foreign family law do not apply if their application is contrary to the fundamentals of law and order (public order) in Russia. In such cases, the rules of Russian law apply.
It is generally accepted that the area of marriage and family relations is not completely, but only partially included in the object of regulation of private international law. This is explained by the fact that marriage and family relations have not only a civil law, but also an administrative law nature. And the position prevailing in the doctrine of private international law today is that only civil law relations of an international character can be the object of private international law. It follows from this that relations that go beyond civil law will no longer be regulated by international private law, but by the norms of other branches of law. Such relations include the procedure for state registration of acts of civil status, the procedure and terms for storing state registration books and similar relations that are of an administrative and legal nature and are regulated exclusively by the norms of national law, although they are traditionally considered when studying family law issues.
In the Russian Federation, the regulation of these relations is provided for by the Federal Law "On acts of civil status" of 1997.
So, international private law regulates only those relations from the field of marriage and family, which are of a civil law nature. It should immediately be noted that there is no clear differentiation of institutions into those of a public law and private law nature in family law. It is possible to indicate the criteria by which in the law there is a division of relations into private and public, acceptable and in the characterization of marriage and family relations. When allocating relations of a private law (civil law) nature, they are guided by the following criteria: the presence of a property or personal non-property nature, optionality, equality of the parties.
In the case when the relations of various institutions of family law satisfy the above criteria, we can talk about the object of regulation of private international law. In addition, in addition to the presence of a civil law nature, it is necessary that the relations be complicated by a foreign element, which makes it possible to characterize them as international.
Marriage and family relations in private international law include issues of concluding and dissolving a marriage, recognizing a marriage as invalid, determining the regime of property between spouses, regulating maintenance obligations, adoption and other issues related to them (for example, relationships in a foster family), provided that these relations are international. At the same time, it must be remembered that the international character is manifested not only when foreigners marry on the territory of Russia.
Relations can also be international when their participants are only Russian citizens. This happens in a situation where relations develop outside the Russian Federation. For example, the birth of a Russian child in the territory of a foreign state and the issues arising in connection with the protection of his property rights (in particular, the right to receive alimony) mean the inclusion of these relations in the object of regulation of private international law. In order to be able to speak of an international character, it is enough that any element in a legal relationship (subject, object or legal fact) has a foreign characteristic.
Describing the field of marriage and family relations, one cannot fail to note such a distinguishing feature as the predominance in each state of legal norms that have their own long historical and religious roots, the presence of customs, traditions, rules of politeness, moral, moral and everyday norms, in a word, everything those social regulators that reflect the specifics of each nationality and a certain community of people.
It is this circumstance that is an obstacle to the unification of substantive and even (although to a much lesser extent) conflict of laws rules in family law.
Collisions in the legal regulation of various family and marriage relations are manifested not only in the legal systems of states where different religions dominate, but also in states with the same religion and legal systems of the same “family” (for example, in the countries of Romano-Germanic law).
Differences are manifested in almost all institutions of family law, while the set of institutions itself largely coincides. Thus, the legislation of most states provides for norms that determine the material conditions for persons entering into marriage, but the content of these conditions in the legislation of each state has its own characteristics. For example, in Russian legislation, the conditions for concluding a marriage are the mutual voluntary consent of a man and a woman and the achievement of marriageable age by them, which is established as a general rule from 18 years of age. In other states, a lower or, on the contrary, a higher age limit may be established, while being determined individually for women and men.
In the legislation of some states, predominantly Muslim, one can generally meet conditions that are unusual for the mentality of a Russian person: the expiration of a certain period after the death of a spouse for registering a new marriage (the so-called “vow of fidelity”), taking into account the age difference between the bride and groom, the possibility of registering a marriage with condition of the financial security of the groom, etc.
As for Russian legislation, in addition to the conditions listed above, the UK has a special article that fixes the circumstances that prevent marriage. Among them, there is no need to obtain parental consent, which is a necessary condition for registering a marriage in France if those wishing to marry have not reached the age of 21. Compliance with material conditions ensures the validity of marriage in the future, and each state closely monitors the implementation of its citizens by established legal norms.
1.2 Sources of legal regulation of marriage and family relations in private international law
The lack of uniformity in the content of the concept of material conditions subsequently gives rise to "lame marriages" - marriages recognized in one state and not recognized in another.
It turns out that when registering a marriage between a French citizen and a Russian citizen, a French citizen under the age of 21 must obtain parental consent (as required by French law), and for a citizen of the Russian Federation, such a requirement is not provided for in the RF IC.
The existence of “limping relations” in the marriage and family area is inextricably linked and conditioned by the conflict problem, which, unlike other civil law areas, is very difficult to solve in this case. However, even in family law, states have made and are making attempts to unify individual institutions. One of these attempts was the adoption in 1902-905. series of the Hague Conventions: on marriage, divorce and judicial separation of spouses, on personal and property relations between spouses, on guardianship of minors, guardianship of adults.
The very fact of the emergence of international conventions at the beginning of the 20th century was of great importance. Such unification showed the real possibilities of states in reaching a compromise in this, it would seem, sphere inaccessible to uniform regulation. Following the conventions of 1902-905, which, unfortunately, did not receive wide recognition, other Hague conventions appeared: on the law applicable to maintenance obligations in favor of children, 1956; on the recognition and enforcement of decisions in cases of maintenance obligations in respect of children, 1958; on Jurisdiction and Applicable Law Relating to the Protection of Minors, 1961; on the Recognition of Divorces and Decisions on Judicial Separation of Spouses, 1970; on the law applicable to maintenance obligations, 1973; on the law applicable to matrimonial property regimes, 1978
Universal unification, unfortunately, did not become an effective regulator of marriage and family relations of an international nature. Regional unification, carried out on different continents, turned out to be much more effective. One of the first was the unification of the countries of Latin America, culminating in the adoption in 1928 of the Bustamante Code (known as the Convention on Private International Law). The Bustamante Code is primarily a unification of conflict of laws. Special chapters are devoted to family law issues: “On Marriage and Divorce”, “Paternity and Establishment of Paternity”, “Maintenance Obligations of Relatives”, “Paternal Power”, “Adoption”, “Guardianship”, “Emancipation and Adulthood”, “Registration acts of civil status.
Between the CIS member states, the unification of the conflict of laws rules of family law was carried out as a result of the adoption in 1993 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (known as the 1993 CIS Convention). Like the Bustamante Code, the 1993 Convention has a special part on Family Matters.
It formulates the norms that fix the principles of choice of law in the regulation of the following relations:
¾ material conditions of marriage;
¾ divorce;
¾ recognition of marriage as invalid;
¾ relations between spouses, between parents and children;
¾ establishing or contesting paternity (maternity);
¾ establishment or cancellation of adoption, guardianship and guardianship.
Particular attention in the Convention is paid to determining the competence of the judicial institutions of the member states that consider disputes in the field of marriage and family relations. Thus, in cases of legal relations between parents and children, the court of the state whose legislation is subject to application is competent; in matters of divorce, the competent institutions of the state of which the spouses are citizens at the time of filing the application, if the spouses have different citizenship - the institutions of the state in whose territory the spouses live (if one of the spouses lives in the territory of one state, and the second - in the territory of another, institutions of both states will be competent).
It is unnecessary to compare the number of international substantive and international conflict rules adopted in the field of marriage and family relations. The unification of family law is limited mainly to the creation of conflict rules. There are very few material international norms in the field of marriage and family relations.
It is also necessary to pay attention to such a circumstance as the regulation of many relations directly related to marriage and family or related to them by conventions traditionally considered in the course of public international law. For example, in 1980-90s. A number of "children's" conventions have been adopted: the 1980 Convention on the Civil Aspects of International Child Abduction, the 1989 Convention on the Rights of the Child, and the 1993 Convention on the Protection of Children and Cooperation with regard to Foreign Adoption.
The first two of these are always considered when studying the sub-branch of public international law "Human Rights". Again, this circumstance once again confirms the fact that due to the close interweaving of public and private relations, there is no clear differentiation of conventions into sources of international public and international private law. An analysis of traditional “public” family conventions shows that, along with international standards related to public law prescriptions, they contain rules governing civil legal relations. For example, the 1989 Convention on the Rights of the Child contains norms relating to personal non-property relations: provisions securing the right of a child to a name from the moment of his birth, the non-property right to know his parents, norms on foreign adoption.
With regard to the participation of the Russian Federation in the unification of family law, in addition to the Convention of the CIS countries of 1993, as well as the adopted Protocol to this Convention of 1997, Russia is a party to about 20 bilateral international treaties on legal assistance, in which, in addition to sections devoted to general civil issues, there are sections regulating marriage and family relations of an international nature.
Chapter 2. Legal regulation of relationships in the family
The conflict-of-law regulation of marriage and family relations of an international nature in the Russian Federation acquired a qualitatively new content with the adoption of the Family Code of 1995. Instead of the previously existing unilateral conflict-of-law bindings, which provided for the application of exclusively Soviet legislation, the current UK contains bilateral conflict of laws rules that fix such attachment formulas , as the law of nationality and the law of the domicile of spouses, known to the legislation of most states. In the key regarding the conflict regulation of marriage and family relations of an international nature, Sec. VII SC a large number of norms are devoted to the issues of conclusion and dissolution of marriage.
Marriage. When concluding a marriage, both on the territory of Russia and abroad, two options for the “presence” of a foreign element are possible. In Russia, marriage can be concluded: 1) between citizens of foreign states - the so-called "foreign" marriage, and 2) between persons, one of whom has Russian citizenship, and the other - the citizenship of a foreign state, the so-called mixed marriage.
A similar situation is possible when registering a marriage on the territory of a foreign state:
1) marriage can only be concluded between Russian citizens;
2) marriage can be concluded between persons having Russian and foreign citizenship.
In all these cases, it is important to determine the applicable legal system that regulates the procedure, form and material conditions for marriage. As for the first two issues - order and form, in essence they relate to public law relations and are resolved by each state by adopting appropriate laws or legal norms governing these relations, regardless of who - domestic citizens or foreigners - are the subjects of these legal relations. . However, in sect. VII RF IC of 1995 there is a rule (similar rules were contained in the Code of Civil Procedure of 1969), which is considered by international affairs as a unilateral conflict of laws rule. According to this norm, the form and procedure for concluding a marriage on the territory of the Russian Federation are determined by legislation.
The choice of law, which determines the material conditions, is of great importance in regulating the conclusion of marriage. When entering into a marriage on the territory of Russia, the following conflict of laws rule applies: the conditions for entering into a marriage are determined for each of the persons entering into marriage by the legislation of the state of which the person is a citizen (clause 2, article 156 of the UK).
This rule is a novelty; for the first time in Russian family law, it allows the application of foreign law in determining material conditions. For both persons entering into marriage, it is also important to comply with the requirements of Russian legislation on obstacles to marriage: according to Art. 14 of the UK, marriage is not allowed between persons, of which at least one is already married to another, close relatives, adoptive parents and adopted children, persons of whom one is recognized as incapacitated due to a mental disorder.
The UK provides for a situation where a person entering into marriage is a bipatride, i.e. has two citizenships. In the event that one of the citizenships is Russian, Russian legislation will apply to the conditions for concluding a marriage. If a person is a citizen of two foreign states, then the conditions for concluding a marriage will be determined by the legislation of one of the states of citizenship at the choice of the person himself. As for persons without citizenship, the conditions for concluding a marriage in the territory of Russia are established by the legislation of the state in which these persons have a permanent place of residence.
Russian citizens have the right to register marriage not only in the Russian Federation, but also on the territory of foreign states. Conventionally, "consular" and "common civil" marriages are distinguished: "consular" refers to marriages entered into in diplomatic and consular institutions, and civil - registered in the competent state bodies of a foreign state. Russian citizens may enter into both consular and civil marriages in a foreign state. A similar right is granted to foreigners registering marriages on the territory of the Russian Federation.
The situation is slightly different with the registration of "mixed" marriages in consular offices. As a rule, this possibility is stipulated by the relevant international treaty.
To recognize a marriage concluded in the territory of a foreign state, certain conditions must be met. If we are talking about marriage between Russian citizens or between persons, one of whom is a Russian citizen, it is necessary:
1) compliance with Russian legislation in relation to the material conditions of marriage (Article 14 of the RF IC);
2) compliance with the laws of the state in whose territory the marriage takes place.
For the recognition of marriages concluded between foreigners, it is sufficient only to comply with the laws of the state in whose territory they were concluded.
With regard to marriages registered between Russian citizens or with the participation of Russian citizens outside the Russian Federation, the legal literature suggests that a marriage entered into by a minor citizen of the Russian Federation (aged, for example, 12-16 years old) or a minor citizen of the Russian Federation, in accordance with the legislation of the state where the marriage is registered, it will then be recognized in the Russian Federation, since the 1995 UK, in contrast to the previously existing Code of Civil Procedure of 1969, contains only one requirement - that citizens of the Russian Federation comply with Art. 14 SC. As for the requirement that Russian citizens observe the age of marriage, it is no longer fixed in this article and, accordingly, may not be fulfilled.
However, due to public order, which represents imperative principles in the field of marriage and family relations on many issues, the legal norms on the mutual consent of persons entering into marriage, reaching the marriageable age cannot be ignored by the spouses.
A novelty in Russian legislation is the conflict of law rule on the invalidity of marriage. It is enshrined in Art. 159 of the UK and provides that the invalidity of a marriage, regardless of where it was registered, is determined by the legislation that was applied at the conclusion of the marriage.
Similar rules are contained in international treaties, in particular in the 1993 Convention of the CIS countries and bilateral treaties on legal assistance with the participation of the Russian Federation.
Divorce. In contrast to marriage, the conflict regulation of divorce has undergone significantly fewer changes. Like the previous Art. 163 KoBSv p. 1 art. 160 of the UK formulated the rule that the dissolution of marriage between citizens of the Russian Federation and foreign citizens on the territory of Russia is carried out in accordance with Russian law. In the event that, under Russian law, a marriage can be dissolved in the registry office (for example, with the mutual consent of spouses who do not have minor children), then on the territory of a foreign state this can be done at the appropriate diplomatic mission or consular office of the Russian Federation.
Divorce outside Russia between citizens of the Russian Federation, citizens of the Russian Federation and foreign citizens or stateless persons will be recognized as valid if the following condition is met: compliance with the legislation of the relevant foreign state on the competence of the bodies that made the decision to dissolve the marriage, and the law to be applied. It should be noted that the conflict bindings that mediate the choice of law in the legislation of foreign states determine the legal order to be applied in different ways.
The dissolution of a marriage may be subject to either the law of the country of citizenship or the law of the place of residence of the spouses or one of them.
Russian family law provides for a provision that allows Russian citizens living abroad to dissolve a marriage in a court of the Russian Federation, regardless of the citizenship of their spouse. The only problem that arises in practice in such situations is the question of the choice of territorial jurisdiction. This issue is currently not resolved by law. It is necessary to include an appropriate provision on jurisdiction in the civil procedural legislation so that the possibility of considering a claim for divorce for Russian citizens living outside the Russian Federation can be put into practice.
The recognition in Russia of foreign decisions on divorce means that foreign decisions have the same legal force as similar decisions issued by the competent authorities of the Russian Federation. The presence of a foreign decision on the dissolution of a marriage, which has entered into legal force, is sufficient grounds to consider the spouses divorced, and does not require “duplication” by the relevant Russian authorities. A person who has a decision of a foreign court on divorce can register a new marriage in Russia.
Russian legislation does not contain rules regulating the "implementation" of the recognition of a foreign decision. Therefore, there is no special procedure related to recognition. If the interested person objects to the recognition, the issue is resolved at the court session on the basis of the submitted application (Article 413 of the Code of Civil Procedure of the Russian Federation) and in accordance with Ch. 45 Code of Civil Procedure of the Russian Federation recognition and enforcement of decisions of foreign courts and foreign arbitration courts (arbitrations). Decree of the Presidium of the Supreme Soviet of the USSR of June 21, 1988 No. "On the recognition and enforcement in the USSR of decisions of foreign courts and arbitrations". In addition, separate provisions on the recognition of court decisions on the dissolution of marriage, as well as on the choice of law in the dissolution of marriage, are contained in legal aid agreements. So, in accordance with Art. 52 of the Convention of the CIS countries of 1993, the decision to dissolve a marriage is recognized subject to the following conditions:
1) the institutions of justice of the requested state have not previously made a decision;
2) the case, in accordance with the norms of the Convention, as well as the legislation of the state in whose territory the decision must be recognized, does not fall within the exclusive competence of the institutions of justice of this state.
2.1 Order of marriage
The procedure for concluding marriage and its main forms in terms of the occurrence of legal consequences in different countries are defined fundamentally differently:
¾ only civil form of marriage (Russian Federation, Switzerland, France, Germany, Japan);
¾ only religious (Israel, Iraq, Iran, certain states of the USA and provinces of Canada);
¾ alternatively either one or the other (Great Britain, Spain, Denmark, Italy);
¾ both civil and religious (Latin American states, states of the Middle East and Southeast Asia).
Certain civil law consequences are also generated by illegal cohabitation with the conduct of a common household. In some US states, simple cohabitation after a certain period of cohabitation allows the court to establish a precedent for the presumption of a legal marriage.
The conditions for concluding marriage in national laws are also fundamentally different, but a number of common features can be distinguished:
¾ reaching the legal age of marriage;
¾ responsibility for concealing circumstances that prevent marriage;
¾ prohibition of marriages between close relatives, adoptive parents and adopted children, guardians and wards;
¾ prohibition of marriage with partially or completely incapacitated persons;
¾ the need for the explicit consent of the bride and groom.
In most developed countries, a set of medical documents (presence of contagious diseases, sexually transmitted diseases, mental disorders, alcoholism, drug addiction, HIV infection) must be submitted for marriage. The presence of such diseases is not an obstacle to marriage, but their concealment gives rise to the responsibility of the guilty person and leads to the recognition of the marriage as invalid (Articles 15, 28 of the RF IC).
The legislation of almost all countries provides for a special form of marriage - consular marriages. Such marriages are concluded in consulates or consular departments of embassies between citizens of the state of accreditation located in the territory of this foreign state.
Consular marriages are concluded on the basis of consular conventions; such marriages shall be subject to the laws of the state of accreditation. Some consular conventions provide for the requirement to take into account the right of the host state (Consular Convention between Russia and the United States).
The most acute problem of marriage and family relations with a foreign element is a large number of "limping" marriages, i.e. marriages that give rise to legal consequences in one state and are considered invalid in another. This problem is generated by the fact that many countries do not recognize the form and procedure for marriage if they differ from their national regulations.
For example, in Israel, "mixed" marriages performed abroad are recognized only if the wedding took place in a synagogue. Limping marriages are a serious destabilizing phenomenon in international life, give rise to legal uncertainty and entail negative consequences.
Not so long ago, an attempt was made to eliminate this phenomenon - the Hague Convention on the Settlement of Conflicts of Laws in the Field of Marriage of 1995 was adopted. However, this Convention has not yet entered into force, it has a limited circle of participants, states that do not recognize marriages concluded abroad, to the Convention did not join.
French jurisprudence deduced from Art. 170 FCC, according to which the material conditions of marriage of a Frenchman abroad are subject to French law, a bilateral conflict of laws rule that the material conditions of marriage are subject to the national law of each of their spouses. In France, in matters of "mixed" marriages, the public policy clause is widely used, especially if it is not about recognizing marriages contracted abroad, but about the conclusion of such marriages in France.
The form of marriage is subject to the law of the place where it takes place, but when a Frenchman marries abroad, prior publication of this in France is required. The material conditions of marriage under German law are subject to the law of citizenship of each of the spouses using references of the first and second degrees (Articles 13, 27 of the Introductory Law to the GGU).
Marriages entered into abroad are recognized as valid in terms of form if it complies with the law of the nationality of one of the spouses or the law of the place of marriage. Marriage between foreigners entered into abroad is valid in terms of form if it is performed by an authorized official of the state of which one of the spouses is a citizen, and in a form consistent with the laws of that state.
English case law regarding the material conditions of marriage applies two theories:
¾ the marriage must be valid in terms of the law of domicile of both spouses;
¾ the marriage must be valid under the law of the state in which the spouses intend to have their domicile.
There is a presumption that the domicile of the family will be the domicile of the groom at the time of the marriage.
In the United States, the question of the validity of marriage (both its material conditions and form) is subject to the law of the place of its conclusion. There is also another approach:
¾ the marriage is recognized as valid (if it does not contradict the public policy of the country of the court) with alternative observance of the law of the place of its commission;
¾ of the law of domicile of at least one of the spouses at the time of marriage;
¾ of the law of domicile of both spouses at the time of initiation of legal proceedings on the validity of marriage.
In connection with the conflict problems of marriage, the question often arises as to what law should be applied in a dispute about the validity of marriage if one or both spouses have foreign citizenship.
As a rule, issues of invalidity of marriage are resolved on the basis of the law applicable in matters of marriage (in terms of the material conditions for entering into marriage):
¾ if both spouses have the same foreign citizenship, the law of the state of citizenship applies;
¾ in case of different foreign citizenship of the spouses, the concurring prescriptions of the laws of citizenship of both spouses are taken into account;
¾ in the absence of matching prescriptions, the law providing for the condition of invalidity is applied;
¾ if one of the spouses has local citizenship, the law of the court applies.
The solution of the issue of the invalidity of marriage in terms of form involves the application of the law of the place of marriage (legislation of Bulgaria and Poland).
A fundamentally different solution to conflict issues of invalidity of marriage is provided for in the Law on Private International Law and Procedure of the Czech Republic: when a marriage is recognized as invalid, the same criteria apply as in matters of divorce, i.e. the decisive law is the law in force at the time of filing the claim.
In Albania, a marriage is declared null and void if it is considered as such both under the divorce statute and under the law applicable to the marriage. General conflict bindings for resolving the issue of marriage but the law of most states are the personal law of both spouses (it is subject to the internal conditions of marriage) and the law of the place of marriage (determines the form and procedure for marriage).
These bindings are provided for both in national legislation and in the Hague Convention on the Settlement of Conflicts of Laws in the Field of Marriage of 1995. In some states, when concluding “mixed” marriages, public policy clauses are widely used (France).
The legislation of many states establishes the need to obtain a special permit for marriage with a foreigner (Hungary, India, Iran, Italy, Norway, Poland, Sweden).
In modern international law, it is determined that a change in the citizenship of one of the spouses does not automatically entail a change in the citizenship of the other, but presumes a facilitated procedure for changing citizenship.
When concluding “mixed” and foreign marriages on the territory of Russia, their procedure and form are subject to Russian law (clause 1, article 156 of the RF IC).
The legislator has provided for the cumulation of the conflict of laws binding: the conditions for concluding a marriage are determined by the personal law of each of the spouses (that is, it is possible to apply simultaneously the decisions of two legal systems).
At the same time, it is necessary to take into account the provisions of Russian law regarding the circumstances preventing entry into marriage (clause 2, article 156 of the RF IC).
Regulation of the procedure for entering into marriage of dual nationals and stateless persons is carried out in a special manner. If a bipatride also has Russian citizenship, the conditions for his marriage are determined by Russian law. For persons with multiple citizenship, the conditions for entering into marriage are determined by the legislation of the state at the choice of the person himself (clause 3, article 156 of the RF IC).
When determining the conditions for marriage for stateless persons, the law of the state of their permanent place of residence is applied (clause 4, article 156). Thus, in Art. 156 of the IC of the Russian Federation, a “chain” of conflict of laws rules is established, which regulates the procedure for entering into marriage in different ways for different categories of individuals.
Marriages between foreigners concluded in consular and diplomatic missions of foreign states on the territory of the Russian Federation are recognized as valid on the basis of reciprocity (clause 2, article 157 of the RF IC).
The conclusion of marriages outside the territory of the Russian Federation is regulated by Art. paragraph 1 of Art. 157 and Art. 158 RF IC. The norm of paragraph 1 of Art. 157 SC immediately raises many questions: what character does it have - imperative or dispositive; what exactly it establishes - the right or obligation for citizens of the Russian Federation to marry abroad in diplomatic or consular institutions of Russia; Do Russian citizens have the right to marry each other outside of Russia not in diplomatic or consular institutions of the Russian Federation, but in local marriage registration authorities?
Marriages entered into between Russian and foreign citizens outside the Russian Federation are recognized as valid in Russia if their form and the procedure for concluding them comply with the law of the place of marriage and the provisions of Art. 14 IC of the Russian Federation.
In connection with some specific trends in the development of family law abroad (the Netherlands, Sweden, Germany, Denmark, the USA), there is a problem of recognition in Russia of same-sex marriages concluded between Russian and foreign citizens outside Russia, since the legislation of the Russian Federation does not directly prohibit same-sex marriages . Marriages between foreigners concluded outside Russia are recognized as valid subject to the laws of the place of marriage.
The invalidity of marriages with a foreign element is determined by the legislation that was applied at the conclusion of the marriage (Article 159 of the RF IC).
2.2 Termination of marriage
Until the 70s of the XX century. practically all over the world, divorce was considered as a sanction for the guilty behavior of the spouses, for violation of the marriage contract with the recovery of losses and compensation for moral harm.
In the mid 70s of the XX century. Divorce reform was carried out in most European countries. The main trend of the reform is the rejection of the concept of divorce as a sanction and the transition to the concept: divorce is a statement of an unsuccessful marriage.
The modern legislation of most countries provides for both judicial and non-judicial divorce procedures. At the international universal level, these issues are regulated in the Hague Convention on the Recognition of Divorce and Judicial Separation of Spouses of 1970.
Special rules for the dissolution of marriages are established in the international bilateral agreements of the Russian Federation on legal assistance (with Bulgaria, Hungary, Vietnam, Poland, the Czech Republic):
1. divorce is carried out by the authorities of the state of which the spouses are citizens;
2. Citizens of another state residing in one state may initiate a divorce case in the court of the place of residence;
3. upon dissolution of marriage, the law of the citizenship of the spouses shall be applied;
4. If the spouses do not have the same nationality and live in different countries, a divorce case can be initiated in the court of any state, and each court will apply its own law.
The Convention on Legal Assistance of the CIS Countries of 1993 establishes that in cases of divorce, the law of the country of which the spouses are citizens at the time of divorce is applied. In case of different citizenship of the spouses, the law of the state of the place of dissolution of the marriage shall apply.
The procedure for the dissolution of foreign and "mixed" marriages is defined in consular conventions and national legislation. Most states recognize divorces that take place abroad. The dissolution of a marriage is governed by the law, which determines the general consequences of marriage at the time of initiation of divorce proceedings. In principle, the statute of divorce (dissolution of marriage) follows the statute of the general effects of marriage.
The main conflict binding in resolving divorce issues is the law of the place of divorce, subsidiary - the personal law of the spouses and the law of the court.
The legislation of European states does not recognize the validity of "private divorces within the country" (divorces but a deal, especially divorces "talaq" according to Islamic law).
French jurisprudence adheres to the rule that in cases of divorce, if the spouses have a common domicile, this law is applied, the absence of a common domicile implies taking into account the laws of citizenship of both spouses. French courts also make extensive use of the public policy clause in divorce proceedings, but France often recognizes divorces made abroad on grounds of divorce unknown to French law. In this case, the general doctrine applies that in the recognition of foreign judgments, public policy has a “mitigated” effect compared to its application to cases of recognition of the operation of foreign law.
The basis for resolving conflict issues of divorce under German law is the following basic principles:
¾ the general conflict binding is the personal law of the husband at the time of the dissolution of the marriage (using references of both degrees);
¾ in Germany, a divorce on the basis of a foreign law can be carried out if in this case it is permissible not only under the relevant foreign, but also under German law;
¾ A German court may decide to dissolve a marriage if at the time of the dissolution at least one of the spouses has either German citizenship or a German domicile.
Anglo-American law proceeds from the fact that in the matter of divorce, it is only necessary to determine the jurisdiction of the case to an English or American court. If the issue of jurisdiction is resolved, then the conflict issue is resolved: the law of the country of the court is applied. Questions of jurisdiction in divorce cases are decided primarily on the basis of the domicile of the spouses. English Domicile and Matrimonial Affairs Act 1973 Establishes an independent domicile for a married woman. This Act eliminated the difficulties that previously existed for the "abandoned" wife: she did not have access to the British courts to dissolve the marriage if the husband went abroad and lost British domicile (for a long time in England, the wife was considered domiciled in the same place as the husband).
In the United States, some state courts require that the person filing the divorce proceeding actually resides in the state where the suit is brought for a certain period of time (from a few weeks to three years). Since the practice of circumventing divorce laws is extremely common in the United States due to interlocal conflicts, American courts are making various attempts to combat this phenomenon:
¾ the requirement of "good faith" domicile in the state where the divorce was made;
¾ non-recognition of divorces issued by courts outside the state where the spouses were domiciled at the time the divorce suit was filed.
In Poland and the Czech Republic, the dissolution of a marriage is governed by the law of the state of which the spouses are citizens at the time the claim is filed. In case of different citizenship of the spouses, the law of the court (Czech Republic), the law of the joint place of residence of the spouses, and in its absence - the law of the court (Poland) are applied. The law of the court applies in most states if the law of the country of the spouses' nationality prohibits or makes divorce extremely difficult.
In order to apply the law of the court in this case, it is necessary that the spouses, or at least one of them, reside in the country of the court (Czech Republic) for a certain time.
The Hungarian court in divorce proceedings between foreigners applies its own law. However, if the facts underlying the divorce suit took place in the country of the spouses' nationality and could not serve as a basis for divorce there, then divorce is not possible in Hungary. If there are certain obstacles in the law of the nationality of the spouses for filing a divorce request (for example, a prohibition for a husband to file for divorce while his wife is pregnant), then the Hungarian court will also refuse to accept a claim for divorce.
The statute of divorce (the law of the place of divorce) is subject to the main consequences of divorce, however, certain issues (for example, the right to a name) have independent conflict regulation. In particular, the issue of the division of household items and the common apartment (which during marriage was subject to the statute of general effects of marriage) in connection with divorce is qualified as a consequence of it and involves the application of the statute of divorce.
The problem of equalizing property shares of spouses also provides for the application of the statute of divorce (the so-called legal equalization of shares). However, this rule applies only if it is known to the legal order of the citizenship of one of the spouses (Article 17 of the Introductory Law to the GGU). This manifests the "restrictive" function of the application of the law of citizenship - the law of such a state should contain the concepts of "full compensation", "equalizing compensation", "the right to expect equalization of shares", "partial compensation".
In European states, there is a similar to divorce, but a legally different way to terminate marriage and family relations - at the request of the parties, the court makes a decision on the separation (judicial separation) of the spouses. The marriage does not end, but the spouses receive the right to separate residence. The main difference from divorce is that in the event of the death of one of the spouses, the other retains hereditary rights.
The procedure for dissolution of marriages with a foreign element under Russian law is established in Art. 160 of the IC of the Russian Federation, containing a "chain" of conflict of laws rules. Only Russian law applies to the dissolution of any marriages on the territory of the Russian Federation, i.e. court law.
The right of Russian citizens to dissolve marriages with foreigners residing outside Russia is legislated in Russian courts or in diplomatic and consular missions of the Russian Federation. The dissolution of any marriages outside of Russia is recognized as valid in the Russian Federation, subject to the law of the relevant foreign state. The main requirements are compliance with the prescriptions of foreign law on the competence of bodies and legislation on the dissolution of marriages.
2.3 Legal status of children in private international law
The conflict regulation of the legal status of children is based on the application of the law of the child's citizenship. The citizenship of children is established by the citizenship of the parents, by agreement between them (if the parents have different citizenship), by the principle of soil (Resolution of the EU Committee of Ministers "On the citizenship of children born in wedlock").
The main problems of legal relations between parents and children are the establishment and contestation of paternity (maternity), deprivation of parental rights, maintenance obligations of parents and children, protection of the rights of the child, the institution of parental authority. The regulation of these relations is carried out primarily on the basis of the personal law of children and parents (the rights of the country of citizenship or domicile).
The law of the child's country of habitual residence, the law of the competent institution and the law of the court shall also apply. The law of the court is a subsidiary binding and applies provided it is most favorable to the child.
Questions of the origin of the child are a prerequisite for resolving the problem of the relationship between parents and children; these questions, as a rule, have an independent conflict binding.
In France, the origin of the child is determined by the national law of the mother. On issues of legalization and voluntary recognition of paternity (maternity), alternative bindings are provided: legalization by subsequent marriage must comply with either the marriage statute, or the national law of the spouses, or the personal law of the child. Judicial paternity is determined by the national law of either the applicant or the child.
In many countries, the law of nationality of the husband of the mother of the child (Germany, Portugal, Italy, Japan) is decisive for the birth of a child. In case of different citizenship of the spouses, the law of the common place of residence is applied, and in its absence, the personal law of the husband.
Under English law, the question of the "legitimate" birth is generally decided on the basis of the law of the husband's domicile. The legal status of a child born in a lawful marriage, his "marital origin", is regulated by the statute of general conditions of marriage. An alternative link (applied in the interests of children) is the law of nationality of each parent if they have different nationalities. Relations between "legitimate" parents and children are basically subject to the personal law of the father: the right of his citizenship (Germany, France, Italy) or the right of his domicile (England). It is possible to apply the national law of the parents, the law of the place of their joint residence (Portugal).
Contestation of the fact of the child's marital origin is carried out on the basis of the law of the child's usual place of residence or according to the law of his citizenship by birth (Poland, Czech Republic). The child's domicile law also regulates the relationship between parents and children in the event of a divorce.
The parentage of a child born out of wedlock is determined based on the law of its mother's nationality. The conflict regulation of establishing (disputing) paternity is subject to the law of the child's citizenship by birth (Czech Republic, Poland). An alternative link in establishing (disputing) paternity can be the law of the father's citizenship and the law of the permanent place of residence of the child. Such an alternative is established in the interests of the child, since far from all states it is possible to establish paternity in court. In the Czech Republic, the establishment (disputing) of paternity in relation to children living in its territory is subject to Czech law, if this is in the interests of the child; the validity of recognition of paternity is determined on the basis of the law of the state where such recognition is carried out.
Under German law, the relationship between an illegitimate child and his parents is subject to the law of the mother's nationality; under the law of other states (Switzerland, Denmark, Greece, Spain) - the personal law of the father or the personal law of the child (Czech Republic, Hungary, Poland). The issue of the obligation of the father to support an illegitimate child is resolved on the same conflict of laws grounds.
In Finland, when it comes to payments for the maintenance of a child conceived in Finland, Finnish law applies. In Hungary, children with foreign citizenship are subject to the personal law of the father at the time of the child's birth; if the child lives in Hungary, Hungarian law applies, provided that it is more favorable to the child.
The legitimation of a child born out of wedlock through the subsequent marriage of his parents is governed by the statute of general effects of marriage. In the case of different citizenship of the parents, an alternative binding is the law of citizenship of one of them. If legitimation is effected in some other form (and not by subsequent marriage), then the law of nationality of the person whose child is to be legitimized is competent.
On the issue of maintenance obligations in favor of children, the main conflict criterion is the law of the child's usual place of residence, which determines the right to alimony, their amount and the circle of obligated persons (Austria, Belgium, Switzerland, France, Germany, Turkey). The problem of mutual maintenance of children and parents is resolved on the basis of the law of the state whose citizenship the person applying for alimony has (Czech Republic, Poland).
The establishment of a set of alternative conflict-of-law links and a whole “chain” of conflict-of-law rules used in resolving issues of the legal status of children is carried out in the interests of children and is aimed at achieving their maximum protection.
Most of these issues are settled in international law (both at the universal and at the regional level):
¾ in the Hague Convention on the Law Applicable to Maintenance Obligations in Respect of Children, 1956;
¾ in the 1961 Hague Convention on Competence and Applicable Law in Respect of Minors;
¾ in the 1989 Convention on the Rights of the Child;
¾ in the European Convention on the Legal Status of Children Born Out of Wedlock, 1975;
The law applicable to the issues of establishing and contesting paternity and maternity is defined in Art. 162 SK of the Russian Federation. The main conflict binding is the law of the child's citizenship by birth.
Establishing (challenging) paternity (maternity) on the territory of the Russian Federation involves the application of Russian law. The legislator secured the right of Russian citizens outside the Russian Federation to apply to the diplomatic and consular missions of Russia regarding the resolution of these issues.
The rights and obligations of parents and children are regulated by Art. 163 SK of the Russian Federation. The main conflict binding is the law of the joint place of residence of parents and children. In the absence of a joint place of residence, the law of the child's nationality applies. Alimony obligations and other relations involve the subsidiary application of the law of the place of permanent residence of the child.
Alimony obligations of adult children and other family members are determined by the law of joint residence (Article 164 of the UK). In the absence of a joint place of residence, the law of the state of which the person applying for alimony is a citizen shall apply.
The institution of adoption (adoption) is one of the most ancient legal institutions (known since the ancient world). Adoption is a complex legal and ethical issue because it requires a strong belief in the best interests of the child. When adopting, the legal relationship between people who are not related by blood is similar to the legal relationship between parents and children. As a result of adoption, serious legal consequences occur: some persons lose the rights and obligations of parents, others acquire them. Most states provide for a judicial procedure for adoption (in the Russian Federation these are cases of special proceedings). At the international level, the main issues of adoption are resolved in the European Convention on the Adoption of Children of 1967.
In recent years, adoption (adoption) by foreign citizens and adoption abroad has become extremely common. Therefore, modern international law sets a higher standard for adoption requirements. The adoption system enshrined in the 1989 UN Convention on the Rights of the Child provides guarantees for the rights and interests of the child in the event of adoption. The Recommendation of the Committee of Ministers of the EU of 1987 “On raising families” and the Convention on the Protection of Children and Cooperation with regard to Foreign Adoption of 1993 are also devoted to the legal regulation of these issues.
Conflict issues of adoption arise in connection with the differences in the relevant provisions of substantive law in the legislation of different states: the possibility of adopting adults, the consent of the adoptee and his blood relatives, the preservation of the legal connection of the adopted person with his blood relatives, etc.
As a rule, the statute of adoption is either the personal law of the adopter or the personal law of the adoptee (their cumulative application is also possible). The statute of general effects of marriage applies to adoption by one or both spouses.
To determine the list of requirements for expressing the consent of the child and his relatives (guardians or custodians), it is necessary to take into account the law of the child's citizenship for the entire range of adoption issues. The law of the court is applied subsidiarily, especially in cases where the consent requirements under the law of nationality are impracticable or difficult to comply with.
French jurisprudence mainly applies the personal law of the adoptee. German law proceeds (with some restrictions) from the personal law of the adopter. The law of citizenship of the adoptive parent applies in the Czech Republic and Poland. In case of different citizenship of the adopter and the adoptee, the provisions of both legal orders must be taken into account. In England, adoption is subject only to English law; here the main problem is the question of the limits of the court's jurisdiction. Rule of thumb (with exceptions): the adopter must be domiciled in the UK and the adopter and the adoptee must be domiciled in England.
Foreign adoptions are recognized if the adopter is domiciled in the respective foreign country.
In the legislation of some states there are special rules in case of different citizenship of the adoptive spouses: cumulative compliance with the requirements of the laws of both states is required (Czech Republic). As an exception, adoption can be made on the basis of Czech law, if foreign law does not allow adoption or makes it extremely difficult (provided that the adoptive parents or at least one of them has been living in the Czech Republic for a long time).
According to the legislation of most states, the issue of the consent of a child, his relatives or any official bodies for adoption is resolved by the right of citizenship of the adoptee (Czech Republic, Poland, France).
The statute of adoption also determines the consequences of this act. When deciding whether the adoption is in accordance with the law of the state whose court is considering a dispute related to adoption, the question of "substitution" arises. This question primarily arises in relation to hereditary legal consequences. If the statute of adoption provides for less than the statute of inheritance, the hereditary rights of the adopted child (“weak adoption” - takes place, in particular, in English law), then substitution should not be made in the interests of the child, even if there is an “equivalence of laws”.
Conflict issues of adoption (adoption) in Russian legislation are resolved on the basis of a "chain" of conflict rules. The main conflict binding is the personal law of the adopter (citizenship or domicile) in the case of adoption (adoption) on the territory of the Russian Federation of a child who is a citizen of the Russian Federation. At the same time, the need to comply with the family legislation of the Russian Federation and international treaties of Russia (Part 2, Clause 1, Article 165 of the RF IC) is fixed. Adoption (adoption) by foreigners married to Russian citizens of children - Russian citizens on the territory of their state presumes the application of Russian law, taking into account Russia's international obligations. The legislator also established the application of the law of the competent institution in the event of adoption (adoption) on the territory of the Russian Federation of a foreign citizen. A list of cases has also been established when adoption requires the consent of the competent institution of Russia, the legal representatives of the child and the child himself.
In the event of a possible violation of the rights of the child, it is necessary to refuse adoption (adoption) or cancel the adoption in court. The consular offices of the Russian Federation are entrusted with the obligation to protect the rights and interests of children - citizens of the Russian Federation, adopted (adopted) by foreign citizens outside Russia. When adopting (adopting) children - citizens of the Russian Federation outside Russia, the law of the competent institution of the state of which the adoptive parent is a citizen is applied.
For the production of such an adoption, it is necessary to obtain prior permission from the competent authority of the Russian Federation. There is a serious gap in the Family Code of Russia - the complete absence of regulation of adoption (adoption) by Russian citizens outside of Russia.
The civil law institution of guardianship and guardianship is a set of measures aimed at protecting the personal and property rights of incapacitated and partially incapacitated persons. For family law, these institutions are important if guardianship is established over a minor or guardianship over a minor.
In family law, guardianship and guardianship are a set of separate rules aimed at protecting the personal and property rights and interests of minors; in the law of continental European countries, guardianship is assigned to minors who have lost their parents; if parents are deprived of parental rights or legal capacity in court (Germany, Switzerland). In Anglo-American law, guardianship is closely related to the protection of the child, since his parents are legal guardians from birth (in the same way this issue is resolved in France). In the event of the death of parents or deprivation of their legal capacity or parental rights, persons capable of performing these duties shall be appointed guardians of minors.
Only a capable person can be a guardian. The circle of persons who can be entrusted with the duties of guardians is almost everywhere limited:
1. Persons who are themselves under guardianship cannot be guardians.
2. Persons who have trustees or who have been deprived of honorary rights and advantages in court cannot be guardians.
3. Persons leading an immoral lifestyle cannot be guardians.
4. Persons whose interests are to a large extent in conflict with the interests of the ward may not be guardians.
5. Persons who have been declared insolvent or in respect of whom bankruptcy proceedings have not been completed cannot be guardians.
6. Persons in respect of whom a ban was established by the parents of a minor when they were alive cannot be guardians.
In France, the guardian is appointed by the family council, in Germany and Switzerland - by the guardianship court, in the UK and the USA - by the court.
The duties of the guardian include taking care of the development of the personality of the ward, his representation in civil matters. The guardian is obliged to conduct the affairs of the ward as a "caring master"; he shall be liable for the losses incurred by the ward as a result of the negligent conduct of his affairs.
In the UK and the US, a trustee acquires the status of a trustee. The activity of the guardian is controlled by the court of guardians and the family council. In continental European countries, a minor whose parents or guardians are temporarily unable to perform their duties of representation are appointed guardians.
One of the forms of guardianship is the foster family. Foster parents in relation to foster children have the rights and obligations of guardians (or trustees - depending on the age of the child). The agreement on the transfer of a child to a foster family must provide for the period of stay in this family; conditions of maintenance, upbringing and education of the child; rights and obligations of adoptive parents; duties of guardianship and guardianship authorities; conditions and consequences of termination of the contract. Foster parents are the legal representatives of the adopted child, protect his legal rights and interests without special powers.
The agreement on the transfer of a child to a foster family may be terminated early at the initiative of the adoptive parents if there are good reasons (illness, conflict with the child, etc.); at the initiative of the body of guardianship and guardianship; in the case of the return of the child to the parents or his adoption. All property and financial issues arising as a result of early termination of the contract are resolved by agreement of the parties, and in the event of a dispute - in court.
Certain issues of guardianship and guardianship of minors are resolved in the Hague Conventions on the regulation of guardianship of minors of 1902 and ensuring the legal capacity of adults and guardianship over them of 1905. These conventions contain unified conflict of laws rules. The institution of guardianship and guardianship is determined in accordance with the national law of the ward. Guardianship or guardianship in respect of an alien who is in the territory of this state may be established only if the law of the country whose citizenship the minor foreigner has does not retain the exclusive nature of the institution of guardianship and guardianship over its citizens. The legal relationship between a guardian and a trustee is governed by the national law of the ward.
The Convention on Competent Bodies and the Law Applied in Cases for the Protection of Minors, 1961, is currently in force. This Convention replaced the 1902 Convention for relations between its participants (France, Germany, Switzerland, Portugal, etc. participate in the 1961 Convention. ). In accordance with the 1961 Convention, in matters of guardianship and guardianship in relation to minors, the authorities of the state of the minor's habitual residence are mainly competent, which, when resolving relevant cases, apply their own law.
In Russian law, this problem is solved in a civil law manner with the help of a “chain” of conflict of laws rules. The main conflict binding is the personal law of the ward and ward. The legislator provided for a combination of several types of conflict bindings (the principle of splitting the conflict binding) - the application of the law of the country of competence of the institution, the personal law of the guardian (custodian), the law of the country of registration of the act, Russian law (if it is most favorable for the ward (ward).
Chapter 3. Legal regulation of marriage and family relations on the example of Muslim countries
3.1 General provisions on Muslim marriage
The basis of the norms governing the issues of marriage in all countries of the West and North America is the principle of monogamy. An indispensable condition for concluding a valid marriage in accordance with the laws of these countries is the absence of another registered marriage.
Polygamous marriages are widespread in the Muslim world.
In Muslim countries, state registration of marriage, although it exists formally, is not mandatory. Having a duly registered marriage is not an obstacle to getting married in a mosque.
The legal basis of Muslim marriage, unfortunately, is not sufficiently regulated at the legislative level. It is based on the Koran and the Sunnah - the fundamental sources of law. The subject of this area is family and inheritance relations, guardianship and trusteeship, mutual obligations of spouses, parents and children, and other relatives. As for polygamous marriage, this is expressly provided for in position 4:3 of the Koran: "... marry those that are pleasing to you, women - and two, and three, and four."
A Muslim has the right to marry any woman, except for an atheist. This is explained by the norms of Sharia, according to which a man with his unlimited power in the family will be able to convert his wife to his faith. However, a prerequisite for Muslim marriage is the ability of a man to financially provide for his wives and children.
Marriages of Muslim women with representatives of other faiths are not allowed. For the marriage of a Muslim woman with a representative of another faith, the legislation of some Muslim countries provides for criminal liability in the form of imprisonment.
In a Muslim divorce, the initiative almost always comes from the husband, who enjoys unlimited rights. For men, the divorce procedure is simplified: for him, as the head of the family, an oral application is enough. A divorce is considered valid if a man publicly declares three times: "You are not my wife." However, even with the formal equality of men in Islam, divorces among the poor are less common, due to the high cost of the legal procedure in property matters, issues, in matters of alimony, upbringing and maintenance of children, and other related issues.
It can be noted that divorces are quite rare in families where women come from Central Asia and the Caucasus, while divorces with Slavic wives are a fairly common phenomenon.
Brought up in the spirit of gender equality, Slav women often negatively perceive the legislative consolidation of the supremacy of the spouse, subordination to him as the head of the family. The consequences of such a divorce in most cases negatively affect the fate of a woman who remains completely powerless in a foreign country, cannot take her child home, cannot provide herself financially, and competently defend her rights in court.
As for the fate of children in marriages where this is not stipulated in advance by the contract, the legislation of most Muslim countries has a rule in accordance with which the court considers the case on determining the place of residence of the child in accordance with the "interests of the child." In practice, this means that preference is given to the parent who proves his ability to take full responsibility for the child: his health, upbringing, education, development, the ability to support him and satisfy all his vital needs. Not surprisingly, men usually win in such processes. The exception is a small percentage of women who have acquired citizenship, have a profession, real estate or the possibility of acquiring it, and have an impeccable command of the language. With regard to the fate of children left after the death of a parent, the legislation of most countries gives preference to the second parent.
Property issues during the dissolution of the marriage of a foreigner are also resolved on the basis of Sharia - that is, also not in favor of the woman. However, in some Sharia countries, the possibility of compensating a woman for moral and material damage during the dissolution of a marriage is legally fixed. The amount of the payment is determined taking into account the usual standard of living for a particular family. This can be either a lump-sum payment of capital, or the so-called "life annuity".
In the rarest cases, a woman can initiate a divorce: the apostasy of the spouse, his prolonged absence, the concealment of the physical defects of the spouse at the time of marriage, and some others. In the absence of good reasons for divorce, a woman often resorts to cunning, declaring that she hid that she is an atheist: as already discussed above, marriage to an atheist is not allowed in Islam.
Therefore, when registering a marriage, they need to attend not only to the execution of a marriage contract, but also to conclude other types of agreements provided for by law, fixing in them such rights as the free choice of profession and place of residence, the right to dispose of property belonging to her, and most importantly, determining the place of residence of children, and maintenance obligations in the event of a divorce. In recent years, the trend towards the conclusion of such contracts and agreements has been growing, and our women are trying to insure themselves in advance against the possible tyranny of their husband. The modern legislation of the Russian Federation on citizenship also comes to the rescue, allowing a woman to issue Russian citizenship to her child in a consular office abroad.
Despite the trend of legislative regulation of the legal status of a woman in an Islamic family, one cannot but pay attention to the difficulties in solving these problems in practice, which largely depends on the position, personal qualities, and upbringing of the spouse. And not a single legislator with a stroke of a pen is able to change the foundations of the patriarchal Muslim society that have developed over the centuries.
3.2 The situation of a Russian woman in a Muslim marriage
Russian women who are married to Muslims are told: “Forget everything you knew in Russia, you are now married women. Already say thank you that we do not urge you to cover your face. But in principle, in Egypt now, in recent years, the Galabeization of the female population has intensified. Considering female students, the following data can be cited: in 1991, approximately 60% of girls wore European clothes and somewhere between 30-40% of female students of higher educational institutions wore traditional Arab clothes. At the moment: 50 to 50% of female students wear traditional Arab clothing. That is, such retraditionalization is taking place at the household level.
According to the Department of Consular Service (DCS) of the Ministry of Foreign Affairs of the Russian Federation, the majority of women who enter into mixed marriages with citizens of African countries are Russians.
This is especially evident from the statistics of data on the place of birth of women permanently residing in the ARE: Moscow, Leningrad, Altai, Krasnodar, Primorsky, Stavropol, Khabarovsk Territories, Astrakhan, Belgorod, Voronezh, Kaluga, Magadan, Murmansk, Perm, Tambov, Rostov- on-Don, Chelyabinsk, Magnitogorsk, Chita, Yaroslavl and others.
As for the zones of their settlement on the African continent as a whole, according to the statistics of the same Ministry of Foreign Affairs of the Russian Federation, now Russian women live in 52 African states; almost 60% of them become wives of immigrants from North Africa - the main Islamic zone of the continent. And this, we emphasize, is only in the main Islamic zone of the continent. In reality, the total number of adherents of Islam in Africa at the beginning of the 90s was over 40% of the entire population of the continent; of which in North and Northeast Africa 46%, East Africa about 18%, West Africa 32%, South and Central Africa - about 3%. The largest Muslim communities today are concentrated in Egypt (over 90% of the country's population), Nigeria (about 46%, respectively), Algeria (99.6%), Morocco (99%), Tunisia (98.7%), Sudan (about 73 %), Ethiopia (28%), Guinea (over 80%), Senegal (80%), Tanzania (over a quarter of the country's population), Somalia (almost 100%), Libya (about 99%).
From the foregoing, it follows that it is necessary to familiarize yourself with some features of the social and legislative practices of the Maghreb countries in relation to foreign citizens entering into mixed marriages with the population of the region.
It is clear that in this context, we are primarily interested in the problem of acculturation through marriage in modern Islam. Without intending to dwell in detail on the legal components of the Sharia phenomenon itself, exhaustively analyzed in the works of modern Orientalists and Arabists, we note that in relation to the object of this study, this concept becomes an extremely important component of that stage in the life of Russian women that takes place in the culture of a Muslim husband (if not in sense of participation in the performance of religious rituals, then in the routine of secular everyday life, referred to as the “Muslim environment”), which, along with other factors, is the essence of the problem of adaptation of Russian women in the world of an African spouse.
Concerning this issue in its socio-cultural context, we note that according to Muslim concepts, a woman is not an independent creature, born in order to belong to a man. Moreover, discrimination (in the interpretation of that phenomenon by a European creation) begins already from the very birth of a girl - a fact in itself negative in Islamic perception. Subsequently, it manifests itself in a different approach to raising children of different sexes, as well as at all subsequent stages of a woman's life cycle. For her, the main life task is marriage, the birth and upbringing of children, and the life ideology is obedience and unconditional submission to her husband.
On the contrary, a consciousness of superiority is cultivated in boys from childhood, its future role as a master, a continuer of the family, who, over time, should not only provide for the material support of a woman, but also mediate in her interaction with the outside world.
Without undertaking the difficult task of giving specific - negative or positive - assessments of this phenomenon, let us refer to the observations of some scholars in the field of Islamic studies, who note that women themselves are often the most fanatical defenders of this order of things. It is mothers who, through various models of socialization of children, reproduce in the latter the tradition of separating roles based on gender, where boys are brought up in the unconditional recognition of their social and biological superiority, and girls - with a sense of humiliation, humility and submission.
One of the most conservative principles of the Muslim social doctrine in its "feminine dimension" is generally recognized as the institution of seclusion, the observance of which is a matter of honor for the whole family, and the outer symbolic attribute remains the veil - the subject of ongoing discussions between supporters of the preservation of traditional Islamic values and modernists, as well as scientists , public figures, politicians. To this day, securely hidden in the bowels of the family hearth, a woman in an Islamic marriage often becomes a kind of privatized object of private (harem) life, something forbidden, tightly controlled from the outside, even more dependent on the will of a man who almost completely owns her.
In the mid-1990s, there was a curious trend in Côte d'Ivoire between native black males and young Lebanese living in that country, which some local media considered racist. In the past few decades, immigrants from the Middle East have indeed settled in this country and neighboring states, but mixed marriages between Lebanese and Africans are rare. But not for reasons of racial hatred. Eastern traditions are too strong in the minds and daily practice of fathers and brothers of potential brides - daughters, sisters - who tightly control and jealously protect the last of the best intentions: to keep the recluse intact before marriage. The practices of marriage and sexual relations in Côte d'Ivoire, especially in the capital of the country, Abidjan, are very diverse (polygamy, levirate, premarital relations, etc.), so there have been cases of fisticuffs between relatives and the applicant, as well as direct imprisonment of women in the walls of dwellings .
The private life of a woman (including sex) in the Muslim interpretation rests on such Koranic postulates as honor, chastity, modesty, elevated to the rank of almost uncompromising requirements and laid the foundation for society's strict control over its members. Let us turn again to the interview of Irina Abramova and Russian women living in Cairo, since it illustrates attempts, albeit not intentionally, but still, by Russian wives to violate this Koranic thesis: “Relationships in the family worsened all the time. That is, they are still educated girls, from Moscow, well, they got used to absolutely different things, but in fact they had to stay at home all the time and do housework. They were not allowed to work. That is, in fact, they have the right, as I know, to work, but the consent of the husband is required. And the consent of her husband, of course, was not. And this life did not suit them at all. Then some scandals started there, screams, because they tried to protect their rights, and they were told that they were absolutely powerless. And they must obey their husband and mother-in-law.”
The system of traditional Muslim education requires a woman to comply with such obligatory norms of social behavior, such as lowering her eyes when meeting a man, hiding jewelry and her body (including her head) under her clothes, moving silently, not entering anyone but her own home, observe the technique of ritual ablutions and much more, recorded primarily by the sura "Women" of the Koran.
As for intimate relationships proper (no matter how diverse the customs and rituals adopted in various social spheres of the Islamic world as a whole), it is only in marriage that all issues related to sex are found, according to the Qur'anic statement and the official position of most societies of this cultural -religious zone, its legal and the only permission for a woman. It is natural in this regard that the Qur'anic prescriptions regulating sexual relations forbid adultery, adultery, and incest. In this regard, it is curious to note that the culture of "hijab" by itself does not at all instill sexual tranquility in men. On the contrary, the researchers emphasize here the direct effect of the psychological formula “forbidden fruit is sweet”: deprived of the opportunity to see the faces and bodies of women, Muslim men are in greater tension of aggressive sexuality than representatives of cultures with weak prohibitions against women.
Of course, the Maghreb researcher A. Bukhdiba points out, over the centuries, various social strata have developed their own, special attitude towards the traditional Islamic model of the ethics of gender relations. However, any society (and the Islamic world is no exception) in reality is always more diverse in terms of types of sex. The Maghreb tradition condemns this, society turns a blind eye, but almost always these issues are surrounded by a wall of social silence.
Finally, it is impossible not to recognize the obvious circumstance that the youth of the Islamic regions of Africa (as, indeed, of its other cultural and historical zones) are increasingly breaking out of the framework of this single and generally accepted model, more and more persistently orienting themselves to other world models of marriage and sexual relations, predominantly European. In this regard, the observations of Lyuba are very curious, who had the opportunity, and also (being a student at the Institute of Asian and African Countries at Moscow State University) appropriate professional training for a comparative analysis of the attitude towards Islam of various representatives of the younger generation who profess this religion.
As is known, the legislation in the field of family and marriage on the African continent is very diverse and was formed, on the one hand, under the influence of the local historical and cultural tradition and the system of customary law associated with it; on the other hand, they were (and in some cases continue to be) under the influence of the norms of continental law, thus constituting a bizarre (often internally conflicting or competing) interweaving of customary law, the religious marriage system and modern state legislation.
The norms of behavior and morality are often determined among the population by the traditional religious and legal system, which still plays an important role in regulating family and marriage relations, including those with non-Christians. This is very clearly manifested in the North African region, in countries with an Islamic tradition, where, as you know, the basis of views on marriage, family and family life is strict observance of the principles of Muslim dogma, law and ethics provided for in the Koran. At the same time, the almost universal ignorance of Africa is aggravated for Russian women who marry residents of the African countries of the Islamic zone, with almost complete ignorance of the Muslim legal culture in general and of Sharia as a universal set of norms for the behavior of a Muslim - confessional and secular - which is especially strict in the marriage system. -family relations and inheritance issues. Let's analyze this problem on the examples of two countries - Mauritania and Tunisia.
Thus, in Mauritania, although Sharia became the basis of legislation relatively recently (since the beginning of the 80s), its norms currently regulate almost all aspects of the public, family and personal life of citizens of this country. Along with this, customary law (adat) plays an important role in Mauritanian family relations. In itself, the marriage ceremony among the Muslims of Mauritania does not have the usual solemn character for a Russian compatriot. Here is how one of our respondents, who has lived in Nouakchott for over 14 years, describes and comments on this event: “This procedure here usually takes place very modestly. Marriage is formalized at home or in a mosque, in the presence of the closest relatives. Written assurance of marriage is not required at all; it is sufficient that two male witnesses or one male and two females are present at the ceremony. Their role at the conclusion of the marriage is essentially limited to the formal presence during this ritual, at the moment when the groom's parents pay the bride's father a ransom, and the clergyman reads certain chapters of the Koran and proclaims the terms of the contract three times ... If a religious marriage of a Muslim with a Christian is concluded, then their prenuptial agreement (or contract) includes a minimum ransom; or the contract may not be concluded at all ... By the way, when a marriage is concluded between a Muslim and a Muslim woman, only Muslims should be witnesses; Jews, Christians are allowed as witnesses only in exceptional cases, when a Muslim marries the daughter of the “receiver of the scripture”, i.e. a Christian or a Jew."
As for mixed marital unions, they occupy a special place in the legal system of Islam. The Koran and other fundamental Islamic documents specifically define the conditions under which marriages with representatives of other religions are permissible. Referring to numerous quotations from the Koran, directly and indirectly devoted to marriage, dividing humanity into faithful and unfaithful, and clarifying the boundaries between “clean” and “impure”, which separates Muslims and non-Muslims, M. Arkun notes that already at the time of the Koranic revelations, people knew that the legality of every marriage was related to the level of "purity" - in the religious sense. At the same time, it should be noted that the legal system has not always been dynamic in its approach to mixed marriages. The appearance of prohibitions and permits in it, as a rule, was associated with specific historical conditions. In some cases, Islam categorically forbids marriages between representatives of other faiths, in others, on the contrary, it supports. He is especially intolerant of marriages between Muslims and pagans.
The Koran and other theoretical sources of Islam approach marriages with persons professing Christianity and Judaism differently. When entering into marriage with representatives of these religions, a Muslim must comply with the same conditions as in a purely Muslim marriage union. At the same time, Muslim marriage with Christian or Jewish women is permissible only in one direction - between a Muslim man and a "woman of the Book." The marriage of a Muslim woman with a Christian or a Jew is excluded. In our case, there are practically no conflicts here, because the vast majority of mixed marriages are between an African Muslim and a Russian Christian (or an atheist, which will be discussed separately). If, nevertheless, a Muslim woman commits such an apostate act, then she may be subjected to imprisonment in order to "reflect on her delusions." This is because (according to local interpreters of Sharia norms) it is believed that a man with his unlimited power in the family will eventually be able to convert his wife to his faith. Such a "religious evolution" of the "infidel" Muslim morality encourages in every possible way and absolves sins for it.
For the same reason, Islam is completely intolerant of the marriages of a Muslim woman with a non-believer. Finally, marriages with atheists are generally forbidden. Thus, marriage unions of Mauritanians with Soviet/Russian citizens, concluded in the former USSR or the current Russian Federation, do not have legal force in the territory of Mauritania (even if they are executed in full accordance with Soviet/Russian law), are not officially registered and are considered as cohabitation . True, in terms of their national character in matters of religion, the Mauritanians are tolerant, therefore, public opinion, as a rule, recognizes Russian-Mauritanian mixed marriages de facto.
Many works are devoted to the specifics of the Muslim marriage union "from the inside", the history and traditions of the social behavior of men and women in the world of Islam, lifestyle, morality, and psychology, the rules of behavior of a married woman in a Muslim society, and a detailed coverage of this issue is not directly included in the author's intentions . Let us only recall that polygamy (polygamy) in its most common form - polygamy (polygyny) - is a characteristic feature of Muslim marriage. The Koran not only allows a Muslim to be married to four women at the same time (“... marry those that are pleasing to you, women - and two, and three and four.” Koran 4: 3) but also (if there are no opportunities worthy keep wives), take concubines. These provisions of the Koran are considered the sacred foundations of polygamous Muslim marriage, although in modern Mauritanian (and in general North African) reality, not all men use this Sharia benefit (as under the influence of democratic forces that condemn polygamy among employees, which include the bulk of specialists). who studied in Russia, and for economic reasons, which often do not allow a man to financially provide for several women at the same time).
A tangible imprint of traditional Muslim ideas and Koranic postulates are those areas of law that regulate marriage and family relations in Tunisia, although the problems of the legal status of women, the legislative consolidation of their equality (as well as the women's issue in general), unlike other Arab countries in North Africa, have developed quite noticeably. These features must be kept in mind when considering the legal status of Russian women married to Tunisians.
Adopted in 1956, the Code of Personal Status fixed, among other things, the basic principles of the emancipation of the Tunisian woman at the state level. The personal inviolability and human dignity proclaimed by him were reinforced for a woman by a number of measures, including: the abolition of polygamy (disagreement with this requirement was punished by law); the establishment of legal dissolution of marriage, given by the husband to his wife, and the official granting of the right to divorce to both spouses; permission for the mother of the right of custody of a minor child in the event of the death of the father, etc. The effect of the Code of Personal Status that has existed for almost half a century is not static and is constantly supplemented by amendments and changes made to the country's legislation.
Tunisian legislation governing the legal status of women considers six main civil states in which a woman can be at different periods of her life: a woman as a bride, as a wife, as a mother, as a divorced woman, a woman as a guardian and a woman worker. Let us dwell on those of the statuses of a woman that are related to a foreign woman who married a Tunisian.
Omitting the general provisions of the Tunisian norms of marriage (they are in many respects similar in form to those described above), we note only that, according to Muslim law, the groom is obliged to give the bride a "dowry". This provision is reproduced by the Personal Status Code (Article 12 in the new edition), although the size of the "dowry" is not specified (it can be purely symbolic), but always becomes the personal property of only the spouse (in the concept of "spouse's own property" Tunisian laws include also gifts and earnings from her work, which she retains in the event of a divorce).
As for the actual marital rights and obligations of a foreign woman, they are determined by Art. 23 of the Personal Status Code, and almost all provisions are taken from the Koran. Despite the fact that the new version of this article formally grants the wife equal rights with her husband (the old version of this article (§ 3) made it obligatory for the wife to obey her husband in almost everything), in the event of legal conflicts, for example, when a Muslim man marries a non-Muslim woman or when considering a case in court, Sharia still plays a significant role.
Brought up in the overwhelming majority in the spirit of socialist equality of the sexes, Russian women-wives of North Africans rather painfully perceive the legislative consolidation of the supremacy of the spouse, subordination to him as the head of the family, which inevitably leads to intra-family conflicts, often ending in divorce. However, as the practice of Russian consular offices in the field shows, there is a possibility to balance this situation in a certain way. Yes, Art. 11 of the Code of Personal Status provides that persons entering into marriage may conclude, along with a marriage contract, other types of agreements, where certain features of this marriage would be stipulated. Unfortunately, in practice this article is used rarely and incompetently. Although it is by no means unreasonable to fix in these documents (so significant from the point of view of the legal status of a foreign wife) such moments as employment, choice of residence, jointly acquired property, etc. For example, a Tunisian husband is the head of the family and he has the right forbid the wife to work. On the basis of the above article, it would be possible to fix her "right to work" in the marriage contract or additions to it. In addition, Tunisian legislation in the field of economic and social law has taken a step forward. The Code of Obligations and Contracts, regulating the property rights of women, gives them the full right to conclude contracts and agreements in the field of property relations, to buy, sell and dispose of their property. Marriage does not change these legal rights of women and does not affect their property rights, since, in accordance with Art. 24 of the Personal Status Code, the husband does not have the right to dispose of his wife's personal property.
The same applies to the place of residence, which in principle determines the husband. But again, a foreign spouse who does not want, for example, to follow her husband to Tunisia, can stipulate this right in advance or determine a specific place of residence in Tunisia itself. Thus, it is possible to fix at the legal level quite significant real obligations of the husband in relation to his wife.
Not being able to consider in detail here the issue of the property and non-property consequences of the termination of the marriage of a foreign woman with a Tunisian (both in the case of divorce and the death of a spouse), we note that in general, local legislation, regulating the legal rights of a divorced woman (by the way, there are practically no differences between a Tunisian and a citizen of another country), considers the latter in two statuses - the divorced woman herself and the divorced woman holder of the right of guardianship. In this regard, I would like to draw attention to several circumstances related to the fate of children after a divorce that took place in a mixed family.
Until 1966, the country had a provision that gave priority to the mother, regardless of whether she was Tunisian or foreign. Now in local legal practice there is a very vague wording "the interests of the child." So, in the event of a divorce, guardianship is given to one of the ex-spouses or a third party, while taking into account the interests of the child himself. But if the mother becomes the guardian, then the entire responsibility for the education of the child, his health, rest, travel is assigned to her, and financial costs also fall on her (this is stated in the new Article 67 of the Code of Personal Status, which now gives the mother possibility, depending on the state of the case, or some of the rights, or the entirety of guardianship).
Therefore, in a mixed marriage, where the legal and economic status of a woman, as a rule, is not very stable, the question of who the children will remain with in this case is decided, as a rule, in favor of the Tunisian father. The main argument of the latter is that the mother will take the child away, depriving him of guardianship, i.e. exercise of paternal rights and participation in the upbringing of the child. At the same time, in a number of cases, a divorce is marked with a positive decision in favor of foreign mothers (Soviet/Russian citizens) who had a Tunisian national passport. At the same time, a significant role was played by the woman’s personal qualities, the ability to hold on and control her actions, to talk in a foreign language, as well as her profession, housing, etc. In general, we note: when it comes to the ease of dissolution of marriage according to Sharia, this does not mean that it is widely used in all Muslim countries. There are many reasons for this, related both to the peculiarities of the historical and cultural tradition and the economic nature. And although Sharia formally puts all Muslim men legally on the same footing, divorces, for example, among the poor are still rare, because it is very expensive to turn a legal possibility into a reality.
As for the issue of children left after the death of a spouse, then under modern Tunisian legislation, the guardian of minor children with all the ensuing rights (Article 154 of the Code of Personal Status) becomes the one who survived, i.e. mother (both Tunisian and foreign). This article has been in effect since 1981. Prior to this, guardianship was entrusted to the nearest male heir. Also, under modern Tunisian law, since 1993, a divorced mother has received the right of custody of her child. Note that earlier guardianship, according to Muslim traditions, was a right granted exclusively to men (Article 5 of the Code of Personal Status).
Considering new laws and amendments designed to secure the legal status of a woman (including a foreigner) in the system of marriage and family relations, it should be noted that despite the efforts of the government, their implementation is accompanied by considerable difficulties. In general, the practical solution of these issues, although it has many specific features and nuances, still largely depends on the position taken by the spouse himself or his relatives along the husband's side.
Finally, it is useful to mention the changes in the attitude of Muslims themselves towards such marriages. Exploring the evolution of attitudes in Islamic society towards mixed marriages, as well as the social reasons and grounds for this kind of matrimonial behavior, Mohammed Arkun, a well-known French professor of Islam studies, notes that despite the attractiveness of European cultural models and lifestyles introduced to the countries of the Islamic belt , mixed marriages remained very rare until the fifties of the twentieth century. There are more of them during the wars of liberation, as well as in the era of independence, which provoked a powerful wave of labor emigration, the departure of students and a “brain drain” to industrialized countries.
Mixed couples who return to live in their husband's homeland, he notes, will for a long time face hostility, moral and psychological difficulties, which sometimes lead to divorce. Marriages among Muslim women to non-Muslims remain rare; and their integration into the society from which the husband comes is even more problematic than in the case of men who choose non-Muslim women as their wives. According to M. Arkun, mixed marriage not only leads to psychological and cultural upheavals. Based only on the family unit, represented only by the married couple themselves and their children, it destroys the patriarchal family as such, which is located in a wider framework of social solidarity, very effective, and which has not yet been replaced by any modern institutions of social security (in the West, such organisms more and more often they are exposed as unsuitable, for example, in providing for old age - there, more and more often, old people turn out to be useless, marginalized).
Thus, the modern rejection of mixed marriages is based not so much on religious or racial reasons, but, perhaps, even more significant moral, psychological and cultural justifications. As far as Islamic societies are concerned, it is precisely the understanding of the family in the broader sense of the word, the social group; in the context of the ideology of resistance, this can be interpreted as a kind of resistance to the threat to the preservation of the nation. With the return of Islam to political life, the scientist predicts, the rejection of such marriages risks multiplying.
3.3 Divorce in a Muslim marriage
The social doctrine of Islam, which regulates gender inequality in a Muslim family, also determined the dependent position of a woman from her husband during a divorce. It is here that male "autocracy" manifests itself in its true sense.
Perhaps the main feature of Sharia divorce is that the initiative of the latter almost always comes from the husband. According to the Qur'an, divorce is considered a one-sided act, which mainly proceeds and is initiated by the will of the man. And when the marriage is dissolved, he enjoys unlimited rights. For example, he can grant divorces to his wives at his own discretion, without declaring reasons, at any time. (According to the archival materials of the DCS of the Ministry of Foreign Affairs of the Russian Federation, such (though isolated) cases also took place in the colonies of our compatriots permanently residing in African countries). And the consequences of a Muslim divorce for a woman are extremely difficult, both morally and organizationally. The latter is very noticeable for our divorced compatriot, because according to Sharia law, she is obliged to leave children in her husband's blood family. And this is not to mention the difficulties that she has when creating a new family, especially if she is a foreigner. Divorce in Muslim society is a colossal moral humiliation for any woman. To this day, for the average Mauritanian, a divorced woman is immoral and unworthy. Once a man divorces his wife, without even announcing the reasons, the very fact of divorce is already enough to condemn a woman, from the point of view of Mauritanian public morality.
In the divorce procedure, again, the advantages are reserved for the man who needs, without any explanation, to say to his wife three times: “You are not my wife” (or say any other formula provided for by the Koran), and the divorce is already considered completed. In other words, a verbal statement is enough for a man to dissolve the marriage.
We cannot list in a given volume all the features of the Muslim divorce process, since there are many nuances (although almost all of them emphasize the anti-feminist nature of the procedure). We only note that Muslim legislation still recognizes certain reasons that allow a woman to take the initiative to dissolve a marriage. These include: the husband's apostasy (or his adoption of another faith); its prolonged absence (terms are different); the presence of some physical defects of the spouse, hidden by him before marriage. But even here (it should be noted that such cases are extremely rare), it is necessary to force the husband to pronounce the orthodox formula of Muslim divorce mentioned above before the judge. Only after that the woman will be considered divorced.
In this regard, I would like to draw attention to several interesting points that have entered the practice of Mauritanian Muslim law and are directly related to the case of Afro-Russian marriage under study.
Our compatriots, who have registered their union with the Mauritanians in their homeland, sometimes take advantage of the provision of Sharia, which prohibits a Muslim from marrying an atheist. In a situation where women themselves intend to divorce an IWW citizen, they declare in court that they concealed their atheistic beliefs during the marriage, after which the judge immediately declares the marriage invalid. (Even so, children born of this union most often stay with their fathers and are considered Mauritanian citizens.) Nevertheless, the Mauritanian still has a “loophole” here: he can apply to a secular court (in Mauritania there is still a kind of double legislation), which will make an appropriate decision, now guided by the laws of French law.
Property issues during the dissolution of the marriage of a foreign woman with a Mauritanian citizen are also resolved on the basis of Sharia. And again, the peculiarities of the status of a Russian woman who has entered into a marriage with a Mauritanian only in her homeland, which is legally invalid in Mauritania, gives the former, in the event of a divorce, certain advantages over a divorcing Muslim woman.
The fact is that when a Muslim marriage is terminated, a divorced woman cannot claim any part of the jointly acquired property, except for her personal belongings and gifts from her husband. If we are talking about the marriage of a Russian woman with a Mauritanian, concluded in Russia, then the Muslim court, not recognizing such a marriage and considering it a form of cohabitation by mutual agreement (partnership), recognizes the woman's right to jointly acquired property. The consideration in the Mauritanian court of the application for the termination of cohabitation does not have the nature of a divorce case, but takes place as a consideration of a civil property claim.
If a woman proves that she had her own income, which she transferred to her partner, or that any property was acquired with her funds, then in principle the court can decide to allocate some part of it to her or pay compensation. After a divorce, according to established practice, not reflected in official legal documents, foreign women can live in Mauritania for a long time on a national passport, which is stamped annually by the police. She can obtain Mauritanian citizenship no earlier than after 5 years of residence in the IWW.
Conclusion
In private international law, the qualification of such concepts as "marriage" is given through the prism of Russian family law. Just as a Russian law enforcement officer considers the actual circumstances related to marriage or family relations qualified as such under Russian law, a foreign law enforcement officer is guided, first of all, by his own national law.
A foreign element or other sign used to identify an object of private international law cannot change the very characteristics of legal relations: this is determined by the qualification rules enshrined in Article 1187 of the Civil Code of the Russian Federation. The foreign element emphasizes only the need to analyze the actual circumstances from the point of view of the possibility of their regulation by the norms of foreign law.
When analyzing the methods and means developed to regulate legal relations that arise during marriage, it is important to understand what arsenal of legal means can provide adequate and effective regulation of these relations. The main feature of marriage and family relations, which makes it possible to distinguish them from the entire range of civil law relations, is the "de jure" unaccounted for, but objectively existing moral component. On this occasion, L.M. Pchelintseva wrote that, taking into account the importance of marriage and family relations for each person and for society as a whole, they are regulated not only by moral norms, but also by legal norms, which form a separate sphere of legislation - family law. The role of legal norms in the regulation of marriage and family relations is similar to the role they play in the regulation of any other social relations: the state provides guarantees for the enforcement of legal prescriptions.
Noting that moral canons operate more prominently in the marriage and family sphere than in other areas, it should be recognized that the law, interfering in this area, can only outline the boundaries of permitted behavior, but not regulate the relations themselves that arise in family or between persons entering into marriage. A foreign element, falling into this sphere, can affect the change in the system of legal norms, since with its penetration, in addition to national family law, foreign law is also “involved”.
Information about the essence of legal relations arising from the conclusion of a cross-border marriage, revealed by domestic experts in the field of family law, is projected as much as possible onto the plane of the corresponding relations of an international nature. However, with one fundamental clarification: the international character makes it possible to regulate these relations by the norms of foreign law. As for foreign law, it can endow legal relations arising from the conclusion of a cross-border marriage with a different content than the content that is given to these relations by the Russian legislator. For example, registration of a union between a 15-year-old citizen of the Russian Federation and a 17-year-old citizen of France, carried out without the prior consent of the parents, will be qualified as a marriage under Russian law, and under French law will not be considered as a legal relationship at all. The attitude of the Russian legislator to the characterization of marital relations of an international nature does not change: marriage, regardless of whether foreigners or domestic citizens participate in it, will be considered under certain conditions as a marriage.
Well-known lawyers note that the concepts, institutions and classifications used in relation to marriage and family relations do not change their content even when the latter become international. Scientific discussions about the development of criteria that distinguish marriage and family relations from civil law relations continue to be relevant regardless of the additional question of the choice of applicable law. Marriage and family relations, which acquire an international character, go beyond the scope of national family law. Before they are regulated by substantive legal norms, it is first necessary to resolve the issue of choosing the competent law. "The layer of legal norms that mediate the choice of law is no longer in the sphere of family law, but in the sphere of such a phenomenon as international private law."
The qualification of private international law as an independent branch of the Russian legal system gives rise to numerous discussions provoked, among other things, by the inconsistent position of the legislator.
So, we should once again fix the thesis that the definition of "marriage and family relations of an international character", including legal relations arising from the conclusion of a cross-border marriage, is a symbiosis of the achievements of two sciences - family and international private law. This position complies with the qualification rules enshrined in Russian law: according to Article 1187 of the Civil Code of the Russian Federation, the qualification of legal terms at the stage of determining the applicable law is carried out in accordance with Russian law, except in cases where legal concepts are unknown to Russian law.
Further, the content of cross-border marriage and family relations, as well as the content of ordinary marriage and family relations, will be property and personal non-property relations arising from the conclusion and termination of marriage, as well as various types of property and personal non-property relations regulated by the Russian family law. legislation. Features of marriage and family relations, identified by domestic scientists, can be used to characterize marriage and family relations of an international nature. From the point of view of Russian law, the presence of a foreign element in marriage and family relations does not change their qualification as marriage and family relations and does not introduce any additional features into their content.
Thus, starting from the current state of national legislation in the sphere of regulation of private law relations complicated by a foreign element, the position of domestic scientists on considering private international law as an independent branch of Russian law seems to be the closest to reality. At the same time, section VII of the RF IC is the second largest source of private international law after section VI of the Civil Code of the Russian Federation, as a result, according to jurists, there are real prerequisites for formulating and developing in science the thesis about the formation of a sub-branch of private international law - international private family law. However, this thesis is still premature, because, in addition to the presence of special conflict of laws rules in force in the field of marriage and family relations, Section VII of the SC does not contain other tools that are different from the general PIL toolkit.
In the field of marriage and family today there is a rapid development of relations that have an international character. In the 21st century, many families in the legal aspect have long had a so-called "foreign element" in their composition. This is evidenced by the data cited by sociologists and psychologists investigating the problem of the spread of mixed marriages in Russia.
Also, in conclusion, I would like to suggest the following.
Based on the constitutional principle - every citizen has the right not only to profess, but also to live according to religion - I propose to initiate a change in Russian legislation that would allow a marriage concluded in a church to be considered valid in the registry office. This practice occurs in the US and some European countries.
List of sources and literature
1. Regulations and other official documents
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1.7 The Hague Convention "On the Law Applicable to Maintenance Obligations", 1972. Translation Bureau GLOBE GROUP LLC
1.8 The Hague Convention "On Cooperation in the Field of Foreign Adoption", 1993. Translation Bureau LLC "GLOBE-GROUP"
1.9 The Hague Convention "On the Settlement of Conflicts of Laws in the Sphere of Marriage", 1995. Translation Bureau GLOBE GROUP LLC
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2.17 Gozman L.Ya., Aleshina Yu.E. Socio-psychological studies of the family: problems and prospects // Vestnik Mosk. University. Ser. 14. Psychology. - 2005. - 4. - S. 10 - 20.
2.18 Gozman L.Ya. Processes of interpersonal perception in the family // Interpersonal perception in the group. - M.: MGU, 2006. - S. 294.
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2.20 Gilyazutdinova R.Kh. Legal nature of Muslim law // Sharia: theory and practice. Materials of the Interregional Scientific and Practical Conference. Ufa, 2000, p. 127.
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2.22 Druzhinin V.N. Family psychology. - 3rd ed., Rev. and ext. Ekaterinburg: Business book, 2005. - S. 208.
2.23 Dmitrenko A.K. Socio-psychological factors of marriage stability in the first years of married life: Diss. cand. psychol. Sciences. - Kyiv, 2004. - S. 177.
2.24 Erpyleva N.Yu., Butler W.E., Conflict regulation in private international law of Russia and Ukraine / "Legislation and Economics", 2006 No. 9
2.25 Erpyleva N.Yu., Private International Law of Russia / "Citizen and Law", 2002 No. 7
2.26 Elizarov A.N. On the problem of finding the main integrating factor of the family // Vestnik Mosk. University. Ser. 14. Psychology. - 2006. - 1. - S. 42-49.
2.27 Elizarov A.N. The role of spiritual value orientations in the process of family integration. Vestnik Mosk. University. Ser. 14. Psychology. - 2006. - 3. - S. 59-68.
2.28 Zhigalova I.V. Conflicts in a young family // Actual problems of family and childhood today: Sat. diploma. works of graduates of the Higher. school commerce and ex. PGU with special "Social work". - Petrozavodsk: PGU, 2004. - S. 25-37.
2.29 Zvekov V.P. International private law. Textbook. M., 2004. - S. 72.
2.30 Information from the USSR Embassy in Sudan dated April 6, 1987 addressed to Head. Department of the Consular Department of the USSR Ministry of Foreign Affairs; A package of documents from the Embassy of the USSR in the United Republic of Tanzania dated February 14, 1978 addressed to the Head of the Consular Department of the USSR Ministry of Foreign Affairs, to the Ministry of Foreign Affairs of the Ukrainian SSR, to the Personnel Department of the USSR Ministry of Defense, etc.
2.31 Kerig P.K. Family Context: Marriage Satisfaction, Parental Style and Speech Behavior with Children // Questions of Psychology. - 2006. - 1. - S. 158-164.
2.32 Kosacheva V.I. The problem of the stability of a young family: philosophical and socio-psychological analysis: (on the example of the Kuzbass region): Diss. cand. Phil. Sciences. - Minsk, 2006.- S. 227.
2.33 Koch H., Magnus W., Winkler von Mohrenfels P. International private law and comparative law. M., 2001. - S. 81.
2.34 Krindach A.D. Islam: Number of communities / Religions of the peoples of modern Russia: Dictionary. M.: Respublika, 1999. S. 612.
2.35 Krylova N. L., Prozhogina M. V. “Mixed marriages”. Experience of intercivilizational communication. M.: Institute for African Studies RAS, 2002. - P. 59.
2.36 Laletina A.S. Conflict rules governing the property relations of spouses in the legislation of foreign states // Moscow Journal of International Law. 2004. No. 1
2.37 Litvinova L.G. Conflict as a violation of the functioning of the family at various stages of its development // Actual problems of family and childhood today: Sat. diploma. works of graduates of the Higher. school commerce and ex. PGU with special "Social work". - Petrozavodsk: PGU, 2006. - S. 4-13.
2.38 Lunts L.A. Course of private international law in three volumes. T-1, M., 2002. - S. 151.
2.39 Manukyan Yu.K., Modern family law of the Russian Federation and Sharia - 2003, p. 6.
2.40 Makarov A.N. Basic principles of private international law. - Moscow, legal publishing house of the People's Commissariat of Justice of the RSFSR, 2004. - P. 101.
2.41 Mandelstam A.N. The Hague conferences on the codification of private international law. - St. Petersburg, printing house A. Benke, 2000. - P. 61.
2.42 Mehdi Niyazi. Muslim woman: the complex consequences of imposed restrictions // Gross Vita. Issue. one
2.43 Mustafaev M.B., Mustafaeva M.G. Muslim law. Makhachkala: GSA, 2001, p. 7.
2.44 International private law: Collection of teaching materials / Otv. ed. G.K. Dmitriev. - M.: MGYuA, 2003. - 47p.
2.45 Orlova NV Marriage and family in private international law. Abstract diss....doc. legal Sciences. M., 2006. - S. 29.
2.46 Pezeshkian N. Family psychotherapy through Russian legislation: the family as a therapist / Per. from English, German - M.: Meaning, 2003. - S. 332.
2.47 Paige S. Married life in the USA: The path to harmony / Per. from English. - M.: MIRT, 2005, - S. 416.
2.48 Pek M.S. Untraveled paths. New psychology of love, traditional values and spiritual growth / Per. from English. N.N.Mikhailova. - M: Avacenna, Unity, 2006. - S. 301.
2.49 Reznikov V.E. Socio-psychological typology of conflict interaction of spouses: Diss. cand. psychol. Sciences - Minsk, 2004. - S. 224.
2.50 Safronova S. S. International unification of the law governing the conclusion and termination of marriage. Abstract diss. …cand. legal Sciences. Saratov, 2003. - P. 19.
2.51 Sukiyainen L.R. Muslim law. Questions of theory and practice. M., 1986. S. 101.
2.52 Sivertseva T.F. Family in the developing countries of the East (socio-demographic analysis). M., 1985. S. 76.
2.53 Certificate of the Embassy of the USSR in Tunisia "On the organization of the registry office in Tunisia" dated March 13, 1990; Reference of the USSR Embassy in Tunisia "Some Aspects of the Legal Status of Foreign Citizens Married to Tunisians" dated May 21, 1991
2.54 Stolin V.V. Psychological foundations of family therapy // Questions of psychology. - 2005. - 4. S. 104-115.
2.55 Samoukina N.V. Paradoxes of love and marriage. Psychological notes about love, family, children and parents. - M.: Russian Business Literature, 2004. - S. 192.
2.56 Samoukina N.V. A man through the eyes of a woman, or about male psychology. - M.: Institute of Psychotherapy, 2001. - S. 192.
2.57 Fedoseeva G. Yu. The evolution of Russian conflict of laws regulation in the field of cross-border marriage and family relations // Lex Russica. 2006 No. 4
2.58 Fedoseeva G. Yu. Legal regulation of marriage and family relations in penitentiary institutions // Lex Russica (Scientific works of the Moscow State Law Academy). 2007. No. 4
2.59 Fedoseeva G. Yu. Private International Law: Textbook. 4th ed. - M.: Eksmo, 2005. - 180s.
2.60 Fedoseeva G. Yu. Marriage and family relations as an object of international private law of the Russian Federation. Monograph. - M.: Nauka, Flinta, 2006. - 71s.
2.61 Shvydak I.G. International unification of conflict rules of family law // Law and Economics. 1999. - S. 69.
2.62 Shebanova N.A. Family relations in private international law. M., 1995. - 86s.
Mustafaev M.B., Mustafaeva M.G. Muslim law. Makhachkala: GSA, 2001, p. 7.
Manukyan Yu.K., Modern family law of the Russian Federation and Sharia - 2003, p. 6.
Shvydak I.G. International unification of conflict rules of family law // Law and Economics. 1999. - S. 69.
Fedoseeva G. Yu. The evolution of Russian conflict of laws regulation in the field of cross-border marriage and family relations // Lex Russica. 2006 No. 4
Fedoseeva G. Yu. Legal regulation of marriage and family relations in penitentiary institutions // Lex Russica (Scientific works of the Moscow State Law Academy). 2007. No. 4
Orlova NV Marriage and family in private international law. Abstract diss. ... doc. legal Sciences. M., 2006. - S. 29.
Safronova S. S. International unification of the law governing the conclusion and termination of marriage. Abstract diss. …cand. legal Sciences. Saratov, 2003. - P. 19.
International private law: Collection of methodological materials / Ed. ed. G.K. Dmitriev. - M.: MGYuA, 2003. - 47p.
Alekseeva L.S. Representations of spouses about the family in the legally significant development of relations in marriage: Diss. cand. psychol. Sciences. - M., 2004. - S. 216.
Dmitrenko A.K. Socio-psychological factors of marriage stability in the first years of married life: Diss. cand. psychol. Sciences. - Kyiv, 2004. - S. 177.
Gozman L.Ya., Azhgikhina N.L. The psychology of sympathy. M.: Knowledge, 2003. - S. 94.
Litvinova L.G. Conflict as a violation of the functioning of the family at various stages of its development // Actual problems of family and childhood today: Sat. diploma. works of graduates of the Higher. school commerce and ex. PGU with special "Social work". - Petrozavodsk: PGU, 2006. - S. 4-13.
See: Anufrieva M.P. International private law. Special part. M.: BEK, 2000. T. 2. S. 566
Elizarov A.N. On the problem of finding the main integrating factor of the family // Vestnik Mosk. University. Ser. 14. Psychology. - 2006. - 1. - S. 42-49.
Zhigalova I.V. Conflicts in a young family // Topical
problems of family and childhood today: Sat. diploma. works of graduates of the Higher. school commerce and ex. PGU with special "Social work". - Petrozavodsk: PGU, 2004. - S. 25-37.
Kosacheva V.I. The problem of the stability of a young family: philosophical and socio-psychological analysis: (on the example of the Kuzbass region): Diss. cand. Phil. Sciences. - Minsk, 2006.- S. 227.
Aleshina Yu.E., Borisov I.Yu. Gender-role differentiation as an indicator of interpersonal relations of spouses. Vestnik Mosk. University. Ser. 14. Psychology. - 2004. - 2 - S. 44-53.
Kerig P.K. Family Context: Marriage Satisfaction, Parental Style and Speech Behavior with Children // Questions of Psychology. - 2006. - 1. - S. 158-164.
Druzhinin V.N. Family psychology. - 3rd ed., Rev. and ext. Ekaterinburg: Business book, 2005. - S. 208.
Dunkell S. Standing postures: nocturnal body language / Per. from English. L. Ostrovsky. - Nizhny Novgorod: Elen, Arnika, 2004. - S. 239.
Gurova R.G. The Spiritual World of Youth in the Changing Russia of the 20th Century (Longitudinal Sociological and Pedagogical Research in the 1960s-2000s) // World of Psychology. - 2006. - 4. S. 147-159.
Andreeva G.M. Social psychology: Textbook for higher. school - M.: Aspect-press, 2005. - S. 373.
Stolin V.V. Psychological foundations of family therapy // Questions of psychology. - 2005. - 4. S. 104-115.
Samoukina N.V. Paradoxes of love and marriage. Psychological notes about love, family, children and parents. - M.: Russian Business Literature, 2004. - S. 192.
Gozman L.Ya., Aleshina Yu.E. Socio-psychological studies of the family: problems and prospects // Vestnik Mosk. University. Ser. 14. Psychology. - 2005. - 4. - S. 10 - 20.
Gozman L.Ya. Processes of interpersonal perception in the family // Interpersonal perception in the group. - M.: MGU, 2006. - S. 294.
Aleshina Yu.E. Satisfaction with marriage and interpersonal perception in married couples with different years of marriage: Diss. cand. psychol. Sciences. - M., 2005. - S. 263.
Elizarov A.N. The role of spiritual value orientations in the process of family integration. Vestnik Mosk. University. Ser. 14. Psychology. - 2006. - 3. - S. 59-68.
Paige S. Married Life in the USA: A Path to Harmony / Per. from English. - M.: MIRT, 2005, - S. 416.
Vitek K. Problems of marital well-being / Per. from Czech. / Ed. M.S. Matskovsky. - M.: Progress, 2004. - S. 144.
Peck M.S. Untraveled paths. New psychology of love, traditional values and spiritual growth / Per. from English. N.N.Mikhailova. - M: Avacenna, Unity, 2006. - S. 301.
Samoukina N.V. A man through the eyes of a woman, or about male psychology. - M.: Institute of Psychotherapy, 2001. - S. 192.
Anastasi A., Urbina S. Psychological testing of marriage in international law. - St. Petersburg: Peter, 2001. - S. 688.
Achildieva E.F. Methodological aspects of marital stability research: Diss. cand. economy Sciences. - M., 2005. - S. 136.
Gurko T.A. Formation of a young family in a large city: (conditions and factors of stability): Diss. cand. philosophy Sciences. - M., 2003. - S. 141.
Aleshina Yu.E., Gozman L.Ya., Dubovskaya E.M. Socio-psychological methods for the study of marital relations: Special workshop on social psychology. - M.: MGU, 2004. - S. 120.
Reznikov V.E. Socio-psychological typology of conflict interaction of spouses: Diss. cand. psychol. Sciences - Minsk, 2004. - S. 224.
In the new edition of Art. 23 of the Code of Personal Status says that each of the spouses must treat their spouse with love, kindness and respect, in every possible way avoid negative influences on the other spouse and fulfill their marital duties in accordance with traditions and customs. The wife must jointly manage the household, raise children. The husband, as the head of the family, should support his wife and children in every possible way, and the wife, in turn, should also contribute to improving the welfare of the family, if she has the means to do so.
Certificate of the Embassy of the USSR in Tunisia "On the organization of the registry office in Tunisia" dated March 13, 1990; Reference of the USSR Embassy in Tunisia "Some Aspects of the Legal Status of Foreign Citizens Married to Tunisians" dated May 21, 1991
In 1995, the Tunisian government promulgated Law No. 65/93 and established a special Guarantee Fund to pay alimony and allowances to divorced wives and their children. The work of the Fund is regulated by a number of articles of this law.
Arkun M. Mixed marriage unions in the Muslim environment // Vostok. No. 6, 2001. P. 45.
Information from the Embassy of the USSR in Sudan dated April 6, 1987 addressed to Head. Department of the Consular Department of the USSR Ministry of Foreign Affairs; A package of documents from the Embassy of the USSR in the United Republic of Tanzania dated February 14, 1978 addressed to the Head of the Consular Department of the USSR Ministry of Foreign Affairs, to the Ministry of Foreign Affairs of the Ukrainian SSR, to the Personnel Department of the USSR Ministry of Defense, etc.
Divorce in private international law
· Divorce in the Russian Federation. Marriages between foreigners and citizens of the Russian Federation, as well as marriages between foreigners, are dissolved in accordance with Russian law. Thus, citizens of the Russian Federation who live outside of Russia have the right to dissolve a marriage with a foreign spouse, regardless of what nationality he has, in a Russian court.
Dissolution of marriage outside the Russian Federation. Divorce between citizens of the Russian Federation or between foreigners and citizens of the Russian Federation, which is committed outside the Russian Federation, is also recognized in Russia.
· Divorce in a consular or diplomatic office. Such a dissolution of a marriage is considered possible if the dissolution of the marriage itself is allowed out of court.
Personal property and non-property relations of both spouses. This issue of choosing the applicable law is decided on the basis of the territorial principle. In the event that the spouses had or have a common place of residence, the conflict binding is usually the so-called law of the state of the last common place of residence or place of residence.
International adoption or adoption of a child. When adopting within the Russian territory a child who is a citizen of the Russian Federation by foreign citizens, the applicable law is usually determined by the actual law of the adopter. In addition, the requirements of the law of the Russian Federation, as well as the necessary provisions of international treaties relating to this international adoption (adoption) with the participation of the Russian Federation, must be taken into account.
In such (international) adoption, where the actual nationality of the child and the adopter does not match, special consent may be required from the competent state authorities in the place of residence of the child. With this adoption within the Russian Federation by Russian citizens of a child - a foreigner, you must also obtain the consent of the competent authorities, but of the state of which the child is currently a citizen.
In addition to the problems associated with the concept of marriage, as well as the legal nuances of its conclusion, in private international law the situation with the issue of divorce is rather difficult. Sometimes problems arise not with issues related to the dissolution of marriage, such as the division of property, maintenance obligations, compensation for divorce, but with the possibility of dissolution of marriage in general. It may be quite difficult to imagine that in the 21st century it is far from always possible to dissolve a marriage based on the desire of the parties or certain reasons, but nevertheless, it happens.
Religion has had and has had a great influence on the understanding and value of marriage at all times. And it is through the absorption of the religious traditions of the family into the legal system of the state that laws are formed that regulate the issues of concluding and dissolving marriages. In the Christian religion, marriage is considered a sacred union, and, in theory, is for life. Hence the prohibition of divorce in Italy, Spain and a number of Latin American countries. However, one cannot fail to mention the possibility of dethroning spouses in the Christian church. There was a strict restriction on debunking and it was applied in extreme cases, hence the legislative consolidation of divorce issues, in which divorce was considered as a kind of sanction for not conscientious behavior in marriage of one of the spouses. Until the middle of the 20th century, the concept of divorce as a sanction existed in most countries of the world, and subsequently, with a smooth transition from it to the understanding of divorce, as the banal impossibility of two persons to form a full-fledged family, it gave rise to many incidents. Situations arose everywhere in which a marriage entered into in the church according to certain rites, recognized in one country (for example, Greece), was not considered valid in a number of states (for example, the USA), and, accordingly, persons who did not want to save their previous marriage simply entered into a new marriage under the laws of the state where their previous marriage was not considered valid. Compared to the Russian Federation, it is quite difficult to get a divorce in European countries, and sometimes almost impossible. In most European countries, a rather long period is provided for, which spouses who want to get a divorce live separately from each other, and, as they say, realize “how it is to live without a spouse.” In Italy, this is given as much as 3 years, in Germany - 1 year, in Spain - 1 year. Moreover, in Spain you cannot even file for divorce until 1 year has passed since the marriage.
It is also worth noting that in addition to the temporary restrictions on the dissolution of a marriage, the consequences of a dissolution of a marriage can be even more severe. Under Russian law, spouses do not bear any special responsibility for the initiative to divorce or the reason for the divorce, while in most European countries, as well as American countries, the reasons for divorce are given great attention, and depending on them, the court decides on imposing liability to any of the parties. It was said earlier that the concept of responsibility for the guilty behavior of spouses in marriage has been superseded by the failure of marriage in principle, and at the same time, at the moment we are dealing with essentially the same responsibility, only in addition to divorce, which used to be in itself sanction, additional liability is imposed on the guilty spouses. Therefore, it cannot be considered that countries have completely abandoned the sanctions concept of divorce. In Italy, a spouse is entitled to life maintenance after a divorce, unless she works and remarries. In the Netherlands, the maintenance of the former spouse lasts for the same period during which the marriage lasted, or for 12 years. And if we talk about marriages between foreigners, then the situation seems to be the most difficult for Italy, Finland, Germany and France. The hardest thing is for the citizens of our country, because in most cases, they are not familiar with the legal systems of other states, and do not assume what they can expect in the event of a divorce. Moreover, even the proposed marriage contracts are not taken seriously and consciously enough by Russians, while this could protect them in the future. Various international conventions and agreements serve as a way out of difficult situations regarding the dissolution of a marriage between foreigners. At the moment, various bilateral and multilateral agreements have the most common effect. While unified international instruments, such as the 1970 Hague Convention on the Recognition of Divorce and Judicial Separation of Spouses, the 1902 Hague Convention for the Resolution of Conflicts between Laws and Jurisdictions in the Field of Divorce and Separation, govern the recognition of divorces, and do not have a unified the basis concerning the reasons for the dissolution of a marriage, liability for the dissolution of a marriage and other procedural aspects of the dissolution itself. In this regard, there is great interest on the part of the European community in the creation of such an act, since national law in some cases has too many features and difficulties, and also puts foreigners in a deliberately losing state due to the excessive complexity of the divorce process, with which, quite obviously, few people get to know at the time of marriage. The non-involvement of the Russian Federation in the process of unifying the issues of marriage and divorce, at least in the European space, on the one hand, should be recognized as a negative fact, and on the other hand, completely logical, in the context of a sharp change in the European community towards family values and the concept of marriage, as well as the expansion ways of family formation by legalizing various kinds of partnerships. At the same time, it would be worth trying to conclude at least bilateral agreements with countries where Russians most often find families. This applies primarily to Germany, France, Italy, Spain. Of course, one cannot deny the positive side of the existing agreements with the CIS countries and a number of countries in Eastern Europe and Middle Asia (Moldova, Latvia, Iran, Turkmenistan), however, the most fierce disputes between the parties to the divorce process arise precisely with key EU countries. According to the current bilateral agreements of the Russian Federation, the following positive aspects can be distinguished:
Divorce is carried out by the authorities of the state of which the spouses are citizens;
Citizens of another state residing in one state may file a divorce case in the court of their place of residence;
When a marriage is dissolved, the law of the nationality of the spouses applies;
If the spouses do not have the same nationality and live in different countries, the divorce case can be brought in the court of any state, and each court will apply its own law.
The issue of dissolution of marriage according to Islamic law in the territory of a state of a different legal system becomes quite difficult to resolve. When marriages are dissolved between representatives of Islamic law in the territory of an Islamic state, the question of recognizing such divorces most often does not arise. However, in the context of the Islamization of the EU, divorces according to Islamic law take place on the territory of European law, most often performed orally. Such divorces under the law of the EU countries are not recognized as valid. However, we must not forget that in this case it is necessary to take into account the form of marriage. If the marriage was concluded according to French law, but is dissolved according to Islamic law, then, obviously, such divorces should not be recognized. At the same time, it should be noted that citizens of Islamic states constantly arriving in European countries have, in fact, already created their own system of law in certain areas, according to which they enter into marriages, dissolve marriages, and resolve issues about children. Thus, a situation is emerging in which the authorities partially lose control over the regulation of family and marriage relations of representatives of the Islamic faith on the territory of their state. They, of course, are free not to recognize marriages and divorces committed in this way, but at the same time, such states cannot change their system of law, regulating marriage issues for Islamic peoples with separate norms, since they are either already citizens of European states, or have permission to reside in these states, and in such a case must marry through consular offices if the purpose is to conclude and dissolve the marriage under the law of the country of origin or citizenship. It is necessary to take into account the fact that if there are conflict of law rules governing the rights of foreigners to divorce under the law of their country in the court of another state, it can always be difficult to clearly define the content of foreign law, which significantly delays the process of divorce. However, the law of the law of the court, the law of the place of residence, is most often applied, since such an order is most convenient for the court.
Issues of dissolution of marriage, regulated by the current conventions, should be considered rather outdated at this point in time, which means that a detailed study of new rules is required that will combine modern trends in the conclusion and dissolution of marriage.
Bibliography:
- Gozman L.Ya., Aleshina Yu.E. Socio-psychological studies of the family: problems and prospects // Vestnik Mosk. University. Ser. 14. Psychology. - 2005. - 4. - S. 10 - 20.
- Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993 (within the CIS) / / ATP "Consultant", 2016.
The issue of the possibility of dissolution of marriage in different states is solved in different ways, but three main approaches can be clearly traced. In some countries (Argentina, Colombia, Ireland) divorce is prohibited. In other states, divorce is allowed if there are certain grounds, the mutual consent of the spouses is not among the grounds (Italy). In the third, divorce is allowed if there are certain grounds, including by mutual agreement (Russian Federation, England, Belgium, Denmark, Germany, Norway).
In Italy, since 1970, there has been a law that allowed the dissolution of a marriage on a strict list of grounds (conviction of one of the spouses to a serious criminal penalty, separation of spouses for at least five years under the terms of separation, inability to marry, obtaining a divorce abroad), excluding mutual consent of the spouses. In France, since 1975, the mutual consent of the spouses has been recognized as the basis for divorce, while maintaining such a reason for divorce as the guilty behavior of one of the spouses. In England, since 1971, the mutual consent of spouses to divorce after two years of separation has also been recognized. The law of Germany and Japan allows the dissolution of marriage by mutual consent of the spouses in the event of "final and irreparable disorder of marital life." In Sweden, the court is not required to ascertain the reasons that prompted the parties to end the marriage.
In the United States, in a number of states, divorce is allowed for such a reason as “irreparable disintegration”, while in others, other grounds are required. Many states have established residency requirements ranging from a few hours to several years. In the states of Asia and Africa (where Muslim law prevails), the will of a man plays a decisive role. In non-Muslim countries in Asia and Africa, there are trends towards expanding the freedom of divorce along the European lines.
Differences in the legislation of states on the issue of divorce give rise to contradictions, legal difficulties and, as a result, “limping divorces”. The legislation of different countries also solves the issue of the procedure for dissolution of marriage in different ways. Most states recognize the judicial order (USA, France, England). In some countries, by mutual consent of the spouses, an out-of-court divorce procedure is allowed (Japan, the Russian Federation). In Denmark and Norway, a marriage is annulled by a decision of the king or an administrative authority; in Ireland, by a decision of Parliament.
There are a number of conflict problems of dissolution of marriage in PIL. The very first is the problem of the choice of law in resolving cases of termination of marriage. Many countries apply the national law for dissolution of marriage, others - the law of the place of residence of the spouses, and still others - the law of the country of the court. In England and the United States, the law of the domicile of the spouses is used, in France - the law of common domicile or the personal law of each spouse. In many states, these bindings complement each other.
Linking the divorce relationship to the law of citizenship of the divorcing spouses qualifies as a principle of conflict of law inherent in the "continental" system of law. In the countries of the Anglo-Saxon system, the action of the conflict formula of attachment to the law of the place of residence (lexdomicilii) and the law of the court (lexfori) is noted.
The main means of eliminating "limping divorces" is the recognition of the decision of the body that terminated the marriage in another state or states. There are states that do not recognize foreign decisions on the divorce of their citizens.
Recognition of an alien's rights based on the law of nationality may be denied under the rules of "public policy". The application of the public policy clause depends on the court hearing the case. Here we are talking about discrepancies between the law of another state, the application of which is indicated by the conflict of laws rule, and the law of the country of the court. In some states, the indissolubility of marriage is considered the basis of public order, and divorce is not allowed under the national law of spouses if it is prohibited in the country of the forum, while other countries do not include the principle of indissolubility of marriage as a basis of public order, although the personal law of spouses may not allow it.
Sometimes spouses try, bypassing their personal strict law, to get a divorce.
Difficulties caused by discrepancies in the substantive, conflict of laws and procedural laws of various countries in the field of divorce cause the search for options to overcome the current situation with “lame” divorces, non-recognition of the facts of divorce in a foreign state and their legal consequences. International treaties serve as a means of solving this problem. Since 1928, some of the Latin American countries have been uniformly resolving questions about the admissibility (inadmissibility of divorce), its grounds and the competence of the court. According to Art. 1 of the Bustamante Code, spouses may sue for divorce if divorce is permitted under both the law of the forum and the national law of the divorcing spouses.
Some states adopted in 1978 the Hague Convention on the Recognition of Divorce and Judicial Separation of Spouses. According to this convention, any form of divorce is recognized if it is legal in the country where the divorce took place. But any country may not recognize divorce between spouses if their national law at the time of the divorce did not allow it.
They also exist in legal aid treaties. The practice of such treaties proceeds from the principle of unconditional granting to the citizens of the contracting states of the same rights as to their own citizens.
The Family Code of the Russian Federation provides for the following procedures for dissolution of a marriage: in the absence of minor children and material claims to each other in the conditions of mutual consent of the spouses - through the civil registry office, in the absence of the consent of one of the spouses or in the presence of children under 18 years of age - through the court.
In Art. 160 of the Family Code of the Russian Federation establishes the following features of the dissolution of a marriage "with foreign characteristics":
- - dissolution of marriage between citizens of the Russian Federation and foreign citizens or stateless persons, as well as marriage between foreign citizens on the territory of the Russian Federation is carried out in accordance with the legislation of the Russian Federation;
- - a citizen of the Russian Federation residing outside the territory of the Russian Federation has the right to dissolve a marriage with a spouse residing outside the territory of the Russian Federation, regardless of his citizenship, in a court of the Russian Federation. If, in accordance with the legislation of the Russian Federation, the dissolution of a marriage is allowed in the civil registry offices, the marriage may be dissolved in diplomatic missions or consular offices of the Russian Federation;
- - dissolution of marriage between citizens of the Russian Federation or dissolution of marriage between citizens of the Russian Federation and foreign citizens or stateless persons, committed outside the territory of the Russian Federation in compliance with the legislation of the relevant foreign state on the competence of the bodies that made decisions on the dissolution of marriage, and the legislation to be applied in the dissolution of marriage, is recognized valid in the Russian Federation;
- - dissolution of marriage between foreign citizens, committed outside the territory of the Russian Federation in compliance with the legislation of the relevant foreign state on the competence of the bodies that made decisions on the dissolution of marriage, and the legislation to be applied in the dissolution of marriage, is recognized as valid in the Russian Federation.
So, if the marriage is dissolved on the territory of the Russian Federation, the legislation of Russia is applied. If an application for divorce is filed with a Russian court, regardless of the place of residence of the plaintiff and defendant, a citizen living abroad must be properly notified of all the circumstances of the case, the place and time of its consideration. To do this, copies of documents and a summons to appear in court are sent to him. The procedure for forwarding and handing over documents is regulated by applicable international agreements. Next, the consideration of the case begins according to the rules that are established for citizens of Russia. If the duly notified party fails to appear, the case may be considered in its absence. The legislation of the Russian Federation shall apply in the event of divorce, unless otherwise established by an international treaty.
In view of the fact that, except for the cases provided for by an international treaty, the application of a foreign law is actually excluded, the dissolution of a marriage carried out in the Russian Federation may, as noted above, not be recognized abroad.
There is no special list of grounds for divorce in the Russian Federation, so the court dissolves the marriage if it determines that the spouses cannot continue living together and preserve the family. However, special provisions on divorce are contained in agreements on legal assistance in civil, family and criminal cases concluded by Russia with other countries. Many bilateral agreements on legal assistance concluded between the Russian Federation and other states provide for general rules on the recognition of court decisions.
The law of the Russian Federation also knows the consular dissolution of marriage. The material conditions for the dissolution of a marriage in a consular office are similar to those that must be present when a divorce is carried out in the registry office. The consul has the right to dissolve a marriage between a citizen of his country and a foreigner only when it is provided for in the consular convention. At the same time, the Russian consul has the right to dissolve the marriage between spouses - citizens of the Russian Federation, if at least one of them permanently resides abroad.