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History of development and the modern doctrine about marriage conditions

Joint mutual desire (will) of the man and the woman to give to personal relations and joint home life lawful character by a marriage, is their conventional democratic right guaranteed both regulated by the international and interstate regulatory legal acts.

The right to a marriage as legally issued free and voluntary matrimony of the husband and the wife, generating for them mutual personal (non-property) both property rights and duties, can be realised at observance of the conditions established family legislation of the Russian Federation.

One of the priority measures specified in the Concept of the state family policy in the Russian Federation for the period to 2025 [15], is the further perfection of the family legislation. Legal regulation of marriage and family relations by means of the legal marriage conclusion in the bodies the REGISTRY OFFICE developing between the man and the woman, is the major problem of the state directed on preservation and maintenance of stability of institute of a family and marriage in our country.

It is necessary to recognise, that presently Europe and America have faced not only family crisis, but also with loneliness "epidemic". In Russia half of women - lonely, and the number of brides exceeds number of grooms on 10 million [16].

It is necessary to notice, that the concept and essence of marriage of domestic jurisprudence since olden days bear in itself the certain legal beginning and the maintenance. The tradition to connect marriage with observance of certain procedure of its registration, characteristic for the Russian right, ascends, as it is considered to be, to the right of Byzantium, when in the end of IX century (about 893) the emperor the Lion Wise has published the law, ordering to marry not differently as by means of church wedding. Only such marriage got the state support, non-observance of the form ordered by the state and canons of the state religion, led to a recognition of the concluded union illegal [17].

Now the right of citizens to a marriage is provided and item 12 of the Convention on protection of human rights and fundamental freedoms [18] according to which men and the women who have reached of age of consent, have the right to marry and create a family according to the national legislation regulating realisation of this right is guaranteed. Also item 23 of the International pact from December, 16th, 1966 «About the civil and political rights» for men and the women who have reached of age of consent, is fixed the right to the introduction into marriage and the right to base a family [19].

It is necessary to agree with stated in a science of the family law opinion, that «actualisation of the concept of the family law as independent branch of law is caused also by necessity of the new approach to studying of its structure» [20]. It to the full concerns to podotrasli the brachno-matrimonial right which is allocated with the above-stated author and, in particular, as is believed, to reforming of institute of marriage within the limits of the family law, necessity of modification of legal regulation of an order of a marriage and the relations connected with it.

It is obvious, that in itself marriage, relationship and acceptance of children on education do not lead to family formation as a generality: it is possible not to have any communications with lineals or to conclude marriage «without the purpose of creation of a family» (item 27 SK the Russian Federation) etc.

Thus, it is necessary to establish the additional "not legal" component transferring unique essence and an office role of a family. There are no bases to duplicate in definition of a family of property, let and inherent in it, but being smysloobrazujushchimi in the adjacent categories specially intended for reflexion of these properties. So, presence of the mutual rights and duties is an element of a design of legal relation, and the information on an origin is concluded in a category of relationship [21].

Having married, registered in a statutory order in bodies the REGISTRY OFFICE, the man and the woman form a lawful family. Thus, the new is social-legal generality is created, realising, thereby, the requirement for love, care, personal aspirations and requirements that is needs of nature of each person and an ability to live basis in any developed society. As to regulation of conditions and a marriage order the family legislation contains the norms traditional enough for the family law which observance provides a marriage validity as presence of conditions and absence of obstacles for a marriage provides its lawful character in this part and generates brachno-matrimonial legal relation.

As to Russia as a whole, it is necessary to pay attention to the negative moment shown now: sharp growth of quantity of divorces in relation to number of the concluded marriages is fixed. And there was it not because of increase in quantity of divorces — their number in 2016 has constituted 608,3 thousand, that actually corresponded to level of 2015 and even little bit more low (in 2015 it is fixed 611,6 thousand divorces). Thus, it agree to data Rosstata, in 2016 in Russia sharp decrease in quantity of concluded marriages — from 1161,0 thousand in 2015 to 985,8 thousand — in 2016 that has constituted only 84,8 % from previous year [22] is fixed.

It is natural, that such statistics has essentially worsened indicators of so-called "safety" of marriages — according to 2016 the quantity of divorces has constituted 61,7 % from total of the concluded marriages. Though in 2015 this indicator of divorces in Russia constituted 52,7 %. It is necessary to recognise, that as a whole the quantity of divorces in Russia remains high, but the situation has a little improved in comparison with most demograficheski crisis 2000 years. Nabolshee the quantity of divorces then has been fixed by statistics in 2002 — 853,6 thousand or 5,9 divorces on 1 thousand population [23].

At the moment time in the domestic theory of the family law and the Russian legislation does not exist the standard and legal concept of marriage, uniform interpretation of its essence. Explanation of legal nature of the given is social-legal phenomenon is defined by specificity of this or that branch of law: civil, family, housing, the social security rights. Absence of the uniform conventional concept of the marriage entirely defining versatile essence of the given legal phenomenon and completely satisfying all its aspects, it is possible to connect with constant evoljutsionirovaniem marriage as is social-legal phenomenon during the different historical periods, accumulating in itself various economic, moral, sotsiokulturnye and other tendencies in the Russian society.

From the most ancient times and till the end of X century marriage and family relations were regulated exclusively by conventional rules. The concept of marriage has been formulated in «Kormchej to the book»: «Marriage is muzhevi and the wife a combination, sbytie in all life, bozhestvennyja and chelovecheskija truths dialogue» [24].

From the moment of the Christening of Russia (988) the family passes under full protection of Church which showed the special influence to a universal establishment of canons of Christian marriage. The given circumstances with inevitability attracted necessity to recognise only those marriages which have been concluded according to norms of the ecclesiastical law. With XII century marriage fulfilment should occur in the form of a church ceremony of wedding and delivery of wedding memory which confirmed legality of the fact of marriage. Thus, the Church has acquired the right of registration of all certificates of registration, than confirmed the validity of the given union, its social recognition and legal protection [25].

The wedding ceremony gets value of sacrament and line of the Byzantian right that is represented quite natural phenomenon for that period. The orthodox Church has established limits of cancellation of conjugal ties, has forbidden polygamy, has defined the church form of fulfilment of marriage.

As fairly it is underlined in the literature if to address to history of a question on a marriage, it is necessary to notice, that for the conclusion of Christian marriage observance of variety of requirements was necessary.

Major of them was achievement by the groom and the bride of the age of consent which is giving the chance to them on lawful basises to create own family [26].

In the course of the forward development, intrafamily relations began to be regulated "Domostroem" [27], constituted in XVI century Both "Stoglav", and "Domostroj" fixed the power of the husband over the wife and the father over children. Community property was established, but the law forbade the husband to dispose of a dowry of the wife without its consent [28].

In Ancient Russia the age of consent was defined proceeding from norms of the Byzantian right fixed in collections of laws the Eclogue and prohiron, extended on Russia. But in these kodifitsirovannyh certificates there was no unity of opinions on the given question. The eclogue established age of consent for young men from 15 years, for girls - with 13. According to norms prohirona, young men could marry on reaching 14 years, the girl - 12 [29]. As during the subsequent period of our history 15 years for grooms and 13 for brides an error will not approve, that in Ancient Russia clergy, at the permission of similar questions were considered as age of consent, leant mainly against norms of the Eclogue [30].

In Ancient Russia early marriages have been extended enough. As it is marked in a science, «early princely marriages pursued exclusively political ends: to harden peace agreements with neighbours or to expand the international contacts as Yaroslav Mudryj, for example, arrived, giving out the daughters for representatives of influential houses of Europe» [31].

Joint life of such children-spouses, in D.N.Dubakina's fair opinion, it is impossible to name matrimonial in full sense of this word. Their relations were settled by the relation to parents or the senior members of that family in which they lived after the introduction into marriage [32]. Similar early marriages remained in Russia long time. Even in the beginning of XV century metropolitan Foty in the message to Novgorod insistently ordered, that «did not crown maids menttti dvunatsati years, but crown, as on tretenatsatoe the summer to arrive» [33].

It is established, that with development of Christian values in Ancient Russia, it is quite natural, that the church aspired to introduction in a society of the Christian marriage based on strict observance of all conditions and requirements, necessary for its conclusion. At the same time, only with increase of a role of Christianity in Russia marriage conditions began to be observed, however not everywhere. For the majority of representatives of an Old Russian society they seemed strict enough and not clear, that led to their infringement [34].

The principle of voluntariness of the introduction into marriage receives legal fastening in a number of the standard legal acts published in board of Peter I. Item 12 of Laws civil specified: «... Marriage cannot be lawfully made without the voluntary and easy consent of combined persons» [35]. The consent of parents, however absence of such consent was a condition of the introduction into marriage did not attract annulment of marriage [36].

The decree from April, 6th, 1722 «About survey of fools» it was forbidden to marry insane persons persons because of their inability to independent will. Together with it, the same year the Senate and the Synod have acquired the right to terminate the marriages concluded violently, and it is ordered to return «in the world» postrizhennyh in the nun of women. Gradually there was a process of alignment of the status of spouses, that subsequently has found reflexion in "Tables of ranks" where it has been specified in item 7, that «married wives arrive in ranks on ranks of their husbands» [37].

So, Peter I in the beginning of XVIII century reformed the family law, having fixed voluntariness of marriage; a marriage with the consent of parents, the heads (for military men), owners (for serfs); obligatory examination for the noblemen marrying. The age of consent - 21 year (men), 17 years (woman) has raised. Since 1721 marriages orthodox and not orthodox Christians (mezhkonfessionalnye marriages have been forbidden) [38] were supposed. Marriage consisted at personal presence of the groom and the bride to that "shows" and making agreement about a marriage preceded. Nevertheless, customs have not up to the end lost the influence on formation of norms of the family law. For example, it was expressed in tradition to give in marriage daughters in strict sequence depending on their age and if the younger daughter married before senior that, most likely, remained «the old maiden». Position of the woman, and not married, was the heaviest, from the legal point of view it was on full maintenance of parents, and subsequently other relatives, getting in socially not protected category. Even judiciary practice of volost vessels showed, that the insult of the married woman was punished more religiously, than the girl who are not married [39].

The Synod decree, in 1744 marriages with persons who are more senior 80 years began to be forbidden. It spoke so: «... Marriage from the God is established for human race continuation that from having for 80 to hope rather desperately» [40].

Despite the carried out reforms by Peter I, socially-legal status woman in a society nevertheless has not undergone serious changes. As it was already specified before to conclude marriage shows where health of the future bride first of all was estimated, as a rule, were arranged, after all its duties included housekeeping and a birth of children [41]. The separate mode of property of spouses in marriage has remained also, and the husband has lost the right individually to use property of the wife. The age of consent since 1830 has raised till 18 years for men and 16 years for women. At preservation of the personal power of the husband in a family, it has got more civilised forms. So, since 1845 the husband had not the right to inflict upon the wife to physical punishment as it was allowed to do it earlier. However the wife has been still obliged to carry a surname of the husband and to follow its condition. Its separate residing was not supposed, accordingly, the wife has been obliged to follow the husband [42]. Otherwise it could be installed in the house of the husband compulsorily.

In the course of the state reforming of the family law of the norm, concerning regulations of marriage and family relations, began to collect in various standard documents. It generated unsystematic character of the right, a various sort of a collision and blanks, that negative impact on system of the Russian right as a whole made. Therefore in first half XIX centuries M.M.Speranskim has been prepared the Code of laws of Russian empire. It is quite natural, that brachno-family legal regulation was included into the maintenance given kodifitsirovannogo the certificate.

In Russia the pre-revolutionary period in the sources of law directed on legal regulation of sphere of marriage and family relations the legal nature of marriage it has not been reflected in full though definition of took place that it is necessary to understand as marriage since the questions connected with a marriage and conducting of certificates of registration, were podvedomstvenny churches.

The new stage of development of the family legislation, begun changes of legal regulation in brachno-family sphere, has begun after revolution of 1917 with a decree exit «About a civil marriage, children and about introduction of books of certificates of registration» [43] according to which, the civil marriage conclusion in the state bodies became the unique form of marriage for all Russians irrespective of creed. The marriage concluded on religious practice after acceptance of the decree, did not generate legal effects, and is unique lawful the civil marriage registered in the state bodies admitted.

P.A.Mullov, with reference to possibility of existence of not registered unions of the man and the woman, marked: «Such marriage not only was not supposed in the Russian empire, but also Russia even never formally recognised the civil marriages concluded in the countries where they existed» [44].

During the pre-revolutionary period, up to 1917, there were restrictions concerning marriages between representatives of different creeds though process of branch of the family law from the church was rather notable.

It is necessary to notice, that in connection with merging of the state and church structures of Russian empire serious changes in family legal relations and global democratisation of the family legislation have not occurred [45].

The first acts of the Soviet period concerning a family and marriage became Decree VTSIK, SNK RSFSR from 18.12.1917"About a civil marriage, children and about conducting books of certificates of registration» and Decree VTSIK, SNK RSFSR from 19.12.1917"About divorce» according to which only civil marriages now admitted; the secular and popular established divorce procedure. Decrees have completely debarred church from civil registration.

With reference to the Soviet period of development of marriage and family relations, it is necessary to notice, that as a result of October revolution there was a transition to new public relations. With a view of settlement of the legal relations following from marriage, a family and guardianship on the basis of a new revolutionary life, for maintenance of interests of mother and especially children and the equation of spouses in the property relation and concerning education of children since January, 1st, 1927 the Code of laws on marriage, a family and guardianship of RSFSR has been installed 1926 which positions extended on the persons consisting in not registered actual marital relationships.

The Code of Laws on Marriage and Family of RSFSR proclaimed strengthening of the Soviet family, all-round protection and motherhood encouragement, maintenance of the happy childhood 1969.

It is necessary to join O.J.Kosovoj's opinion which believes, that «... The Soviet right only a stage of centuries-old history of the domestic law, and the Russian state has arisen not in 1917 the Valid culture which has been not imposed from the outside, and defined historical by people development, including, legal, is impossible without continuity and preservation of cultural traditions. As the family institute on which the society is under construction, in interests of stable social development should not be exposed« revolutionary "(" counterrevolutionary ») to changes, obvious deformations to please to someone's radical scientific views or political interests» [46].

Unlike modern SK the Russian Federation in the fourth chapter of the book of the Russian empire first the Code of laws «About the matrimony","About the rights and duties, from a matrimony arising» [47] in item 106, 107 is established », that spouses should love each other.

We believe, what exactly the love of the husband to the wife and wives to the husband generates marriage, is a basis of the concluded matrimony that is especially actual for the today's Russian validity. The love should act and actually become legal qualification of marriage, from it to follow, on its basis and should develops matrimonial relations in marriage.

Marriage as public and socially significant certificate of registration was one of the most difficult not only sotsiokulturnyh, but also the istoriko-legal phenomena. Being, on the one hand, sotsialnoekonomicheskim the phenomenon, marriage, as a rule, was authorised by a society, with another - was the legal institution thanks to which there were mutual rights and duties at spouses, guarantees of their realisation, a special legal regime at property both in common acquired, and brought in the form of a dowry, and from the third party, it was rather rigidly supervised and regulated by orthodox church that gave it lines

Religious institute [48]. With given judgement it is necessary to agree to the full.

K.P.pobedonostsev fairly specified, that «semejstvennye relations constitute a basic element of public, state relations and keep this property for ever. In other legal civil relations we see the relation of the person to a thing or the relation to the person concerning a thing - property, the property.... These relations incomparably to a lesser degree, than all others, give in and come under to legal definitions: on the integrity just because in them it is a lot of elements which cannot and should not embrace legal definition as it cannot go down in depth of conscience and moral feeling» [49].

In the current legislation the subject of legal regulation of marriage and family relations is designated by the family law, in particular, SK the Russian Federation in item 2 defines: the family legislation establishes an order of the introduction into marriage, the terminations of marriage and its recognition void, regulates personal non-property and property relations between members of a family: spouses, parents and children (adoptive fathers and adopted), and in cases and in the limits provided by the family legislation, between other relatives and other persons, and also defines forms and an order of revealing, the device in a family of children who have remained without care of parents. As professor A.M.nechaeva, «fairly marks a designation of a subject of regulation in this or that code having a different branch accessory, urged to order the existing relations subject to the law. Otherwise there will be a chaos observed now» [50].

We believe what to speak about full chaos in regulation brachnosemejnyh relations it is not necessary. At the same time, inconsistency of norms of the family legislation, absence legal regulation in separate spheres of family relations takes place.

There are all bases to believe, that for today one of the cores in legal regulation of marriage and family relations is the direction which mentions the various aspects, concerning regulations of such major social institute as marriage which can be considered from the different points of view: as social institute, as a legal category and in others ipostasjah.

In this connection, the great value within the limits of the present research gets marriage studying in legal aspect, as the fact generating matrimonial laws and duties, and also creating certain legal consequences for spouses. During various historical epoch varied, both the relation to marriage, and its forms. Thus the recognition of necessity and importance of the given is social-legal institute remains invariable.

Marriage is a legitimate recognition of relations of co-habitation between the man and the woman the birth of children in this connection becomes which result, as a rule, in the theory of the family law marriage institute family occurrence as parts of ability to live of the person in a society is considered as the major basis.

The legal analysis of activity of the Constitutional Court of the Russian Federation, gives the basis for a conclusion that finds a place in its activity konstitutsionno-judicial protection of family laws, as a whole, the rights of spouses, fathers, mothers and children, separately. The constitutional Court of the Russian Federation acts as the keeper of a family and marriage as constitutional value, steadily following such interpretation of the Constitution of the Russian Federation and laws which are to the full adequate to progressive understanding of humanistic essence of the state serving to the person, the right protecting it and freedom. The court repeatedly considered references of citizens concerning legal regulation of a marriage, its recognition void, maintenance obligations [51].

In SK the Russian Federation is not present concept of a family and marriage, but necessity of their legislative fastening as it is represented, has ripened for a long time already, that will allow to avoid ambiguous application of norms of the family legislation in pravoprimenitelnoj activity.

As rather-legal research, we will notice, that in some kodifitsirovannyh certificates of the family legislation of the state-participants CIS concepts of marriage and a family contain.

As is known, the marriage purpose is family creation, however, quite often in judiciary practice there are affairs on annulment of marriage in view of absence of the given purpose, fictitiousness of the matrimony.

Let's consider such example from practice according to which the Full court on civil cases of the Ryazan provincial court has considered in open session of the court case under reclaiming petition A on the decision of Rybnovsky regional court of the Ryazan area from August, 05th, 2013 by which it is enacted: claims of the public prosecutor of Rybnovsky area of the Ryazan area operating in interests of the Russian Federation to satisfy.

To cancel record of a territorial department on Rybnovsky area of Central administrative board the REGISTRY OFFICE of the Ryazan area of the certificate about divorce for № from February, 16th, 2010 between A, year of a birth, and K, year of a birth from the date of registration of the certificate of registration.

To recognise the marriage concluded on July, 04th, 2008 by the Tsaritsynsky department the REGISTRY OFFICE of Management the REGISTRY OFFICE of Moscow between A, year of a birth, the citizen of Republic Azerbaijan, and K, year of a birth, the citizen of the Russian Federation, void from the date of its conclusion.

The full court has established, that the Public prosecutor has addressed in court with the claim to A, K, TS to a department the REGISTRY OFFICE of Management the REGISTRY OFFICE of Moscow, to the Rybnovsky department of Central administrative board the REGISTRY OFFICE of the Ryazan area, and asks to cancel taking into account specification of requirements certificate record about divorce for № from February, 16th, 2010 between A, year of a birth, and K, year of a birth from the date of registration of the certificate of registration to recognise the marriage concluded on July, 04th, 2008 by the Tsaritsynsky department the REGISTRY OFFICE of Management the REGISTRY OFFICE of Moscow between A, year of a birth, the citizen of Republic Azerbaijan, and K, year of a birth, the citizen of the Russian Federation, void from the date of its conclusion. The public prosecutor motivates claims with that on July, 04th, 2008 the REGISTRY OFFICE of Management the REGISTRY OFFICE of Moscow is registered by the Tsaritsynsky department marriage between A and To. 16.02.2010 years in the Rybnovsky department of Management the REGISTRY OFFICE on the Ryazan area the given marriage have been terminated. On March, 25th, 2013 during public prosecutor's check it has been established, that marriage has been concluded fictitiously for the purpose of reception K of money at a rate of roubles. From the moment of a marriage and before its cancellation A and K in common did not live, the general economy did not lead. The public prosecutor refers to position of item 27 of the Family code of the Russian Federation according to which marriage is nullified in case of the simulated marriage conclusion, that is without intention to create a family. According to the public prosecutor, void marriage does not generate the rights and the duties provided by the Family code of the Russian Federation. The simulated marriage conclusion between A and K breaks the legitimate interests of the Russian Federation fixed in 7, 15, 38 Constitutions of the Russian Federation.

Claims are satisfied by the decree.

In reclaiming petition A asks the decree to cancel, as illegal and unreasonable, in connection with discrepancy of conclusions of the court stated in the decree, to circumstances of business, and infringement of norms material and the law of procedure.

Having checked up legality and validity of the decision enacted by court, the full court believes, that the bases for its cancellation or change are not available.

Resolving the declared requirements the trial court has correctly applied norms of the substantive law and was guided by norms of the Family code of the Russian Federation, regulating legal relations on annulment of marriage.

According to ch. 1 item 6 FZ «About certificates of registration» ³2 143 FZ from 15.11.1997 the state civil registration is established with a view of protection of the property and personal non-property rights of citizens, and also in interests of the state.

According to Law item 75, cancellation of the primary or restored record of the certificate of registration is made by civil registration body in a place of storage of record of the certificate of registration which is coming under to cancellation, on the basis of the decree which have entered validity.

Also the court obosnovanno has taken into consideration the explanations containing in item 24 of the decision of Plenum of the Supreme Court of the Russian Federation from 05.11.1998 years № 15 «About application by legislation vessels at disposal of legal proceeding about divorce» according to which if marriage will terminate in civil registration bodies, and demands about record cancellation about divorce and about its recognition void subsequently are made, the court has the right to consider these requirements in one manufacture.

Resolving the declared requirements about cancellation of assembly record about registration of divorce and annulment of marriage, the trial court on the basis of explanations of the persons participating in business, the careful analysis of the presented proofs, indications of the witnesses interrogated during proceeding, obosnovanno recognised, that the circumstances resulted as the cause of action, testifying that both respondents have concluded marriage without intention to create a family, are objectively confirmed during a legal investigation by the collected proofs.

So, from explanations of respondent K follows, that with A she has concluded marriage for the purpose of reception from the last money resources, without intention to create a family. Witnesses ФИО1 and ФИО2 in the trial court have confirmed K.Krome's explanatories of that ФИО1 has explained, that A she never saw, to them home where she lives together with daughter K, it did not come.

Any indisputable proofs confirming the fact of registration of marriage with K for the purpose of creation of a family, A in court has not presented.

Thus, the full court considers proved a court conclusion about fictitiousness of the marriage concluded between A and To.

Taking into account stated the court has legally satisfied requirements of the public prosecutor of Rybnovsky area of the Ryazan area about cancellation of assembly record about divorce and annulment of marriage [52].

It is necessary to remember, that with the requirement about annulment of marriage because of its fictitiousness separate categories of persons can address only. From the maintenance of article 28 SK the Russian Federation follows, that with the claim in court about annulment of marriage on corresponding basis the persons specified in the law can address only. Hence, in each separate case depending on the bases of annulment of marriage the person is defined, having the right to make about it the claim in court.

Let's give an example, proceeding from which, the Full court on civil cases of the Moscow provincial court, having considered in open session of the court from July, 30th, 2014 private complaint O on definition of the judge of Himkinsky city court of the Moscow area from May, 23rd, 2014 about refusal in acceptance of statement of claim O to R about annulment of marriage, has established, that O has addressed in court with the claim to R about annulment of marriage L and the River

In a claim substantiation has specified, that the marriage concluded between its cousin L, died on June, 12th, 2013, and respondent R, is void as has been concluded, in its opinion, without the purpose of creation of a family, and, hence, is fictitious.

By definition of the judge of Himkinsky city court of the Moscow area from May, 23rd, 2014 in acceptance of statement of claim O - it is given up.

In private complaint O asks definition of the judge to cancel, referring to its illegality and not validity. Having checked up business materials, having discussed private complaint arguments, the full court of the bases for cancellation of definition of the judge on arguments of the private complaint does not find.

According to paragraph 5 of item 1 of item 28 SK the Russian Federation to demand annulment of marriage the public prosecutor, and also not knowing about fictitiousness of marriage of spouses in case of the simulated marriage conclusion has the right.

Owing to item 1 ch. 1 item 134 GPK the Russian Federation the judge refuses in acceptance of the statement of claim in case: the statement is shown in protection of the rights, freedom or legitimate interests of other person the state body, local government, the organisation or the citizen, which present Code or other federal acts such right is not given.

O has addressed in court with the claim about a marriage recognition between L, died on June, 12th, 2013, and respondent R the void.

In point 1 of article 28 of the Family code of the Russian Federation the circle of persons is defined, having the right to demand annulment of marriage. Certainly, that granting by the law to concrete persons of the incorporeal right of annulment of marriage is caused by their interests as personal character (spouses, the former spouse, the minor spouse, his parents or persons, their replacing), and following of functions of state and other bodies (the public prosecutor, guardianship body).

In point 22 of the Decision of Plenum of the Supreme Court of the Russian Federation № 15 from November, 5th, 1998 «About application by legislation vessels at disposal of legal proceeding about divorce» it is explained, that at acceptance of the statement of claim about annulment of marriage it is necessary for judge to find out, on what basis the marriage validity (point 1 of article 27 SK the Russian Federation) is challenged and whether the claimant concerns a category of persons which articles 28 owing to point 1 of the Family code of the Russian Federation have the right to raise the question about annulment of marriage on this basis. In a case if the applicant does not concern such persons, the judge refuses to it in acceptance of the statement of claim on the basis of point 1 of a part of 1 article 134 GPK the Russian Federation.

Refusing in acceptance of the statement of claim to manufacture, the judge recognised that O to a circle of persons, specified in item 28 SK the Russian Federation and having the right to demand annulment of marriage does not concern, that according to the explanations, containing in item 22 of the Decision of Plenum of the Supreme Court of the Russian Federation № 15 from 05.11.1998 years «About application by legislation vessels at disposal of legal proceeding about divorce» is the basis to refusal in statement acceptance.

Under such circumstances, definition is lawful and proved, the bases for its cancellation are not available, private complaint arguments are based on subjective interpretation of norms of the remedial legislation and do not contain the legal grounds attracting cancellation obzhaluemogo of definition.

Under such circumstances, the full court believes, that the first instance court ruling is lawful and to cancellation on private complaint arguments does not come under [53].

Marriage is the family basis, which main mission - joint ability to live, education of children and care of their future that should infringe on interests of a society and the state [54]. Marriage generates, including, and the maintenance obligations having important sotsialnojuridicheskoe the value, however, which family-legal regulation far is not perfect. So, the family legislation guarantees to each child the right to the maintenance (alimony) irrespective of, on whose care it is - both parents, one of them or other persons, parents replacing to it, - the trustee, the trustee, reception parents, the adoptive father, educational, etc. establishments [55]. However at realisation of the given guarantees in practice, there is a number of stubborn questions [56].

SK the Russian Federation considers the traditions which have developed by centuries and approaches to family values of all multinational people of eight-ten five subjects of the Russian Federation, fixing equality of the rights of spouses in a family, defining voluntariness of the matrimony as union of the man and woman, giving a priority to education of children in a family and establishing various forms of the device of children who have remained without care [57].

The constitutional Court of the Russian Federation has noted the important social value of interests of a family and marriage, minors and necessity of the state to take the measures directed on maintenance of intellectual, moral and mental safety of children, including in the form of an interdiction to make the public actions directed on propagation of homosexuality. The constitutional Court has explained, that «an interdiction of such propagation - as to activity on purposeful and uncontrolled distribution of the information, capable to harm to health, moral and spiritual development, including to generate the deformed representations about a social equivalence of traditional and nonconventional marital relationships, - among the persons deprived owing to age of possibility independently critically to estimate such information, cannot be considered as breaking constitutional laws of citizens» [58].

On working out of measures on maintenance of a regularity of payments of the alimony, sufficient children for the maintenance, for the purpose of reduction of a share of children who are not receiving the alimony in full, the attention in National strategy of actions in interests of children for 2012-2017, approved by the Decree of the President of the Russian Federation from June, 1st, 2012 № 761 [59] is paid.

However, in modern conditions the problem connected with payment of the alimony and, first of all, on minor children by the parent, living separately from children, remains actual [60]. As it is marked in the judiciary practice Review on the affairs connected with collecting of the alimony on minor children, and also on the invalid full age children, approved by Presidium of the Supreme Court of the Russian Federation on May, 13th, 2015 [61], such parents frequently give the maintenance to the children irregularly or not in the sufficient size or at all refuse maintenance granting in a voluntary order [62].

Harmonisation of marital relationships promotes bar of claim by lapse of time, and in case of occurrence - to prevention of negative displays in detskoroditelskih maintenance obligations.

Maintenance obligations proizvodny from matrimonial and detskoroditelskih relations, it «legal relations which arise on the basis of juridical facts: agreements of the parties or the decree in which force one members of a family are obliged to give the maintenance to its other members, a the last have the right to demand it» [63].

The essential changes which have occurred in the early nineties of the XX-th century in the social and economic device of the Soviet society, have directly affected property relations, including on property relations between spouses, on their possibilities to define the property rights on the basis of the contract. Instead of rigid imperative legal regulation of such relations on change by it the optional tools which display is the marriage contract supposing multi-variant approach concerning legal regulation of matrimonial property relations [64] have come.

In the Russian legal doctrine there are various sights at the legal nature of the marriage contract [65]. In any case in sights at the marriage contract it is necessary to make a start from the marriage. Marriage is the union of the man and the woman. And the marriage contract is an agreement of the property party of a matrimonial life. As a result of a marriage the man and the woman become spouses in summary contractings a marriage become participants of contractual relations. Thus any of noted circumstances is not obligatory in relation to another. Speaking in other words, the man and the woman can conclude marriage and not contract a marriage, and having contracted a marriage, will not be considered obliged to execution of its conditions, yet will not conclude marriage. Thus, marriage without the marriage contract is possible, and the marriage contract without marriage is considered impossible. Thus the marriage contract can be and will terminate spouses without divorce. At the same time on marriage contract conditions probably that its separate positions kept the force and for the period after divorce by spouses if it is specially reserved in the contract [66].

In practice of the Constitutional Court of the Russian Federation, the European Court under human rights (ESPCH) repeatedly there was a problem of a competition of the right to a family and others konstitutsionno significant values, and it had to overcome conflicts, to search for reasonable balance, optimum balance between the constitutional values that is not always simple and unequivocal [67].

So on one of affairs unjustified delays in delivery to the prisoner of the certificate on the divorce, demanded for the introduction into repeated marriage were appealed. The applicant complained in the European Court according to article 12 the Convention on protection of human rights and fundamental freedoms that in 2005 - interfered 2008 with it in the introduction into repeated marriage as it left 15-year-old term of imprisonment and had no permission to visiting of body of civil registration for reception of the certificate of divorce after cancellation of the former marriage. After acceptance of the new legislation the applicant has received the certificate on divorce in prison in February, 2009.

Concerning observance of article 12 of the Convention. The European Court has reminded, that the personal liberty is not the necessary precondition for realisation of the right to the introduction into marriage. That fact, that imprisonment deprives its person of freedom, and also inevitably or by default some civil rights and privileges, does not mean, that the persons held in custody, cannot or can carry out only as an exception their rights to the introduction into marriage. Besides, though the right to divorce cannot be deduced from Convention article 12 if the interstate legislation supposes divorce, it provides to the dissolved persons the right to the introduction into repeated marriage for lack of unreasonable restrictions.

The applicant could not marry the new partner from February, 2005 till October, 2008 as authorities could not finish registration of divorce and present it the corresponding certificate on divorce in prison. This restriction of the right of the applicant on repeated marriage was considerable long, having reached more than three years and seven months. It was in addition aggravated with that fact, that before registration of new marriage the applicant had no right to long private appointments, but only on short (four-hour) appointments in the presence of the supervisor. Under such circumstances restriction was unjustified and belittled the essence of the right of the applicant on the introduction into marriage and family creation.

On business infringement of requirements of article 12 of the Convention (it is accepted unanimously) is admitted.

As application of article 41 of the Convention. The European Court has awarded to pay to the applicant 3 000 euros as indemnification of moral harm [68].

It is necessary to notice especially, that at the constitutional level in the Russian Federation the church is separated from the state, obosnovanno secular character of marriage is proclaimed, accordingly, it is not necessary to mix civil and church forms of a matrimony of the man and the woman. The conclusion of religious marriage has no and should not get a validity and legitimacy of the state certificate (as legally significant action).

Let's consider one more example. On business dispatch of the man according to the Dublin convention after refusal in a recognition of its prospective marriage with chetyrnadtsatiletnej the bride was appealed. On business of the requirement of article 8 of the Convention on protection of human rights and fundamental freedoms have not been broken.

Applicants who are citizens of Afghanistan, asked about refuge granting in Switzerland after have been registered as refuge selectors in Switzerland. They were presented to migratory bodies of Switzerland as a married couple, approving, that have married by religious ceremony in Iran when the declarant was 14 years old, and to her husband, the applicant, 18. They have not given the marriage certficate. Their request for refuge granting has been dismissed. The applicant has been returned to Italy, however has managed illegally to return in three days, and it was authorised to it to remain. Within the limits of the refusal appeal interstate courts have established, in particular, that marriage of applicants has been incompatible with the bases of a public policy as, according to the legislation of Switzerland, sexual connection with the child who has not reached 16 years, admitted a crime. From here follows, that applicants could not refer to the right to respect of home life according to article 8 of the Convention the Convention on protection of human rights and fundamental freedoms. In the Russian Federation similar norms and, according to operating criminal law of our country, the introduction into sexual relations with the person who has not reached age of 16 years are applied, it is considered penal act - a crime provided by article 134 of the Criminal code of the Russian Federation [69]. The given norm is represented quite justified and is directed on preservation of traditional values of a family, strengthening of marriage and protection of the rights of minor persons.

In conventional trial applicants approved, that dispatch of the applicant to Italy in 2012 broke Convention article 8, and new dispatch will constitute additional infringement.

Concerning observance of article 8 of the Convention. The European Court has not seen the bases for a withdrawal from a conclusion of Federal administrative court of Switzerland that religious marriage of applicants was void according to the legislation of Afghanistan and in any case has been incompatible with the public policy of Switzerland in connection with infancy of the declarant. Convention article 8 could not be interpreted as assigning to the state-participant of the Convention of a duty to recognise marriage, religious or other, with the 14-year-old child. The given duty cannot follow and from Convention article 12. Convention article 12 directly provides marriage regulation by the interstate legislation and taking into account importance of a moral choice, value of protection of children and maintenance of the family environment the European Court should not aspire to replace conclusions of interstate bodies with the conclusions.

Therefore interstate bodies were believed is defensible, that by applicants who have not accepted measures for a recognition of their religious marriage in Switzerland, were not married.

In any case even if their relations should be qualified as "home life" according to Convention article 8, the applicant has come back to Switzerland. Thus, on business of the requirement of article 8 of the Convention have not been broken [70].

Let's formulate the basic conclusions.

1. Essential changes in the relation of a marriage, definition of conditions and obstacles to its fulfilment, have occurred during Peter I epoch owing to what the age of consent has been raised, marriages with mad and others are forbidden. In the book 10 Codes of laws of Russian empire «About the rights and duties family» are made various changes and restrictions concerning marriage conditions.

2. Research of genesis of legal regulation brachno-family

Relations in Ancient Russia and the period of Russian empire specifies in the tendency of transformation and transformation of rules of law,

Regulating the given public relations, which

Are characterised by a gradual withdrawal from religious canons (at first pagan, and then and Christian) and replacement by their secular lines that has inevitably affected a legal status of a family, marriage and family relations and members of a family. Despite it, to the beginning of XX century still in the family legislation the principle of equality of the rights of spouses has not been fixed. Position of the married woman was characterised by full dependence on the husband which defined its residence, was the owner of the house and the head of the family.

3. Marriage between the man and the woman by the legal nature is shown in various treatment: the transaction, legal relation, sacrament Is etc. believed to define defensible and legally marriage, including, and as the legal fact-action, attracting occurrence of brachno-family legal relations between the husband and the wife. The marriage, according to operating civil legislation, is the certificate of registration, i.e. the action influencing occurrence, change or the termination of the rights and duties of the spouses, characterising a legal condition of persons, and a subject of the state registration, admissible in the presence of conditions and absence of obstacles to a marriage, statutory.

4. The right to a family and marriage is the personal inalienable right which should have both the constitutional recognition, and the state warranting. At protection of the right for a family and a marriage, family protection as important public (vnepravovogo) the subject of relations or social value it is necessary to consider a principle of equality of the rights and freedom of citizens and the reason of creation of a family, maintenance or transformation family-legal status.

5. Legal questions of necessity of strengthening of institute of marriage, legality of its conclusion, observance of conditions should dare not only on legislative, but as it is represented, and at social level. On the basis of the analysis of norms of the legislation regarding institute of marriage and marriage subinstitute, carrying out of some legislative measures and the legal procedures promoting overcoming of negative tendencies in sphere of realisation of the right to creation of a family and a marriage is necessary.

1.2.

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A source: Naumov Yaroslav Vasilevich. CONDITIONS And the MARRIAGE ORDER In the RUSSIAN FAMILY LAW. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -. 2017

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