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1.1. A parity of concepts "family" and "marriage"

It is known, that in a life of each person, a society and the state the huge role is played by a family. In the modern legal literature there is no conventional definition of a family. A family, according to A.M.nechaevoj, - a basis of material and psychological support of the person, normal development of children.

Such overdue and obvious symbol was the family which provides continuity of a cultural heritage, in its bowels are pawned and original public values, norms of behaviour [2 [3] [4] are practically realised. In the pre-revolutionary literature, the family was considered «as the union of the persons connected by marriage, and persons, from them occurring.... At the heart of a family the physiological moment, aspiration to satisfaction of sexual requirement lays. It defines the elementary structure of a family assuming connection of the man and the woman. Children are a natural consequence of co-habitation. The physical and moral warehouse of a family is created besides the right. The legal element is necessary and expedient in the field of the property

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Relations of members of a family ».

«The family for the person always was a concentration of all its moral and economic activities, sense of existence, a support not only statehood, but also a world order. Almost all ethical

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And aesthetic values develop in a family ».

Traditionally it is considered, that to the basic functions of a family concern demographic (life preservation, a child-bearing), economic (creation and maintenance of certain material resources for satisfaction of material requirements of the person) and sotsialnokulturnaja (transfer of the saved up social experience and culture from generation generation) [5].

In turn, during Soviet time it is understanding it has been changed. For example, G.K.Matveev considered a family «as based on marriage or relationship association of the persons connected among themselves mutual personal both property rights and duties, a mutual moral both material generality and support, a birth and posterity education, conducting the general economy» [6 [7].

M.V.Antokolskaja approves, that traditional sociological definition of a family is "uncertain", it «should be expanded now. The family in sociological sense can be based as well on actual marital relationships between same-gender persons who receive now the increasing legal

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Recognition in the various countries ».

We consider, that in this case a position of the author, it is represented not quite well-founded for modern Russia. We believe, that, considering ethical, ethical standards and mentality of Russians, legalisation of unisex marriages in the country it is impossible. Now the negative spirit of the Russian society to unisex marriages is observed. Besides, we consider, that it is impossible to consider the union of same-gender persons as a family as it is established, that one of the reasons of creation of a family is a birth and education of children.

Along with sociological definition exists also special legal concept of a family. The family is a communication legal.

More defensible and rational O.J.Kosovoj's position that "union" of same-gender persons to consider as a family is represented it is impossible. It would mean a distortion of essence and the social mission of a family developing throughout millenia of institute, allowing mankind to reproduce itself in new generations.

Occurrence and existence of such "unions", as

The history testifies, accompanied development of a human society (however unequivocally they were considered as social anomaly, defect). Normally developing matrimonial sphere and its laws objectively exclude finding by unisex "unions" of value of social norm. From the point of view of physical human nature and laws of development of a society, it is anomaly, so, and its de jure recognition - only a legal nonsense. Therefore hardly there is an objective necessity to expand a subject of the family law at the expense of "pseudo-family" relations,

About

Developing between the persons belonging to one floor.

«The normal family assumes a generality of a spiritual and material life of spouses. The generality of a material life is embodied in conducting the general economy by them» [8 [9]. It is necessary to notice, that spouses not always lead the general economy and not always live in common, their law to it does not oblige. It confirms and ch. 4 items 38 SK the Russian Federation [10] in which to be said that the property acquired by each of spouses in separation at the termination of family relations, it is possible to recognise as the property of that spouse which has got a thing.

The family is considered by S.A.Muratovoj as «association, as a rule, in common living persons connected by the mutual rights and duties, arising of marriage, relationship, adoption or other form of acceptance of children on education in a family» [11].

It is necessary to agree with the definition given by A.N.Levushkinym which considers, that it is necessary to understand a circle of persons as a family, connected by the mutual rights and duties in sphere personal non-property and the property relations arising on the basis of relationship, a marriage, adoption and other juridical facts underlying family legal relations [12 [13].

A.M.nechaeva offers with a view of an effective right protection of a family family-legal definition of a family as to a generality in common

The living persons consolidated by the rights and duties,

Provided by the family legislation. The special attention turns thus on such important component of concept "family", as a generality of in common living persons which «serves as the original base of existence of a family, its kernel for the sake of which creation steps to its formation» were made.

It is necessary to pay attention to definitions of a family which are provided in Constitutions of the foreign states. For example, in the Constitution of Italy the family is defined as the natural union based on marriage. The constitution of Greece considers a family as a basis of preservation and nation development. In the Constitution of Ireland it is told, that the state recognises a family as the natural primary source and consolidating basis of a society, and also the moral institute possessing integral and the inalienable rights,

Previous any positive law and the higher in relation to

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To it.

R.P.Manankovoj's offer on development of definition of concept of a family, the general for all areas of knowledge which can be fixed in the following definition deserves support and approval: «the Family is a small social group (association, the union of persons), based on marriage, relationship, adoption and other forms of acceptance of children on the education, connected by a life generality, and also family laws and duties» [14 [15]. This opinion is divided also by sociologist V.V. Solodovnikov, considering, that the family - is social group [16 [17] [18]. And at definition of concept "family" sociologists usually place emphasis that it carries out in a function society

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Reproduction and education of new generations.

Necessity of development of uniform concept of a family for the right has ripened for a long time. By A.M.nechaevoj's fair estimation, «uniform definition of a family is not present even in the family-legal literature that promoted by absence of definition of signs characterising it in the family legislation, even in SK the Russian Federation that it is easy to explain. First, we do not have such tradition, and secondly, any definition involuntarily is author's, differs own vision which can be erroneous». In the legal literature on this question two polar positions are expressed. Supporters of the first consider necessary to fix legislatively definition of concept of a family, but thus pay attention to complexity of development of universal concept of the family comprehensible to all branches of law as various branches of law regulate relations different in the maintenance with participation of members of a family. The Item And. Sedugin more 10 years ago paid attention to necessity of legislative fastening of concept "family" which would have obshcheotraslevoe value [19]. Supporters of other position deny necessity of legislative definition of concept of a family, proving its variety of the criteria characterising a family, and distinctions in the conditions of existence of families. According to O.J.Ilinoj, the family is defined as concepts different in the maintenance as a social category and as a legal category. Such approach to understanding of a family became a basis for a conclusion formulation «about impossibility of existence and standard definition of uniform concept which would be equally applicable both in the family law, and in other branches of law» [20 [21].

It is necessary to notice, that the Chairman of committee of the State Duma on affairs of a family Elena Mizulina namerena to fix concept of a "traditional" family in the Family code. An essence of concept the deputy namerena to take from religious representations. About preparing amendments to Family code Mizulina has told in interview to the "News" newspaper. As she said, the document accepted in 1995, will be seriously processed. In particular, prelozheno legislatively to fix concept of a traditional family.

«In the Family code of the Russian Federation there is no term« a traditional family »with the explanatory, that this such. Meanwhile all over the world in the developed countries definition is made of such concept. The traditional family is in many respects connected with religious culture. The large family - those key traditional values of Orthodoxy, Islam and a Judaism - the basic religions confessing in our country», - has declared Mizulina.

In this case, completely we share E.B.Mizulinoj's position as, really, now there is no legislative definition of concept "family". The family - is one of bases of the Russian statehood. We consider, that absence of uniform concept "family" in the legal literature and in regulatory legal acts is a blank of the Russian legislation with which it is necessary to fill.

It is remarkable, that in 2001 with inquiry about interpretation of concept the "family" containing in item 38 (ch. 1) Constitutions of the Russian Federation in the Constitutional Court of the Russian Federation the Kostroma regional Duma has addressed. According to the applicant, the given constitutional concept is uncertain as in various acts different definitions of a circle of members of a family of this or that person are given, and in the Family code of the Russian Federation definition of concept "family" is absent. According to the applicant, presence of the discrimination to definition of the one who can be carried to a circle of members of a family, restrains constitutional laws of citizens. The constitutional Court of the Russian Federation in Definition from July, 5th, 2001 № 135 has given up in inquiry taking cognizance, as the permission of the question put in it to the Constitutional Court of the Russian Federation nepodvedomstvenno. The attention to the question on the coordination has actually been brought the Constitutional Court of the Russian Federation of some federal acts with a view of uniform definition of the circle of persons, constituting a family. The decision of this problem would mean check of constitutionality of positions of the specified federal acts, and also would demand from the Constitutional Court of the Russian Federation - contrary to its konstitutsionno-legal nature and functions - creations of the new rule of law that would mean intrusion into the competence of the legislator [22 [23].

Summing up, to the aforesaid and generalising the various points of view of many authors on concept "family", it is possible to draw a conclusion that "family" is a special social institute with the variety and completeness of mutual relations between the persons, based on the marriage, connected personal non-property both property rights and duties, a birth of children and mutual care.

The constitution of the Russian Federation fixes, that in the Russian Federation the rights and freedom of the person and the citizen according to the conventional principles and norms of international law admit and guaranteed and according to the Constitution of the Russian Federation (article 17, a part 1), is provided the state protection and support of a family, motherhood, paternity and the childhood (article 7, a part 2; article 38, a part 1), and care of children and their education - the equal right and a duty of parents (article 38, a part 2).

The given positions are in system interrelation with norms of the international treaties obliging the state and a society to carry out family protection as natural and basic cell of a society, habitat for growth and well-being of all its members, especially children, including at family formation while on its responsibility the care of dependent children and of their education (point 3 of article 16 of the General Declaration of human rights, point 1 of article 10 of the International pact on the economic, social and cultural rights, a preamble of the Convention of the United Nations on the rights of the child from November, 20th, 1989, etc.) lays.

Let's notice, that agree ch. 1 item 38 of the Constitution of the Russian Federation 1993, motherhood and the childhood, a family is under state protection. To define, in what degree the constitutional principle of protection of a family is provided by the state, it is necessary to address to other normative acts containing questions of protection of a family. [24]

For example, it agree articles 1 SK the Russian Federation, the family legislation starts with necessity of strengthening of a family, construction of family relations on feelings of mutual love and respect, mutual aid and responsibility before a family of all its members, inadmissibility of any intervention someone in affairs of a family, maintenance of unobstructed realisation with members of a family of the rights, possibilities of judicial protection of these rights, regulation of family relations on the basis of a principle of voluntariness of the matrimony of the man and the woman, equality of the rights of spouses in a family, permissions of intrafamily questions by a mutual consent, a priority of family education of children, etc.

The criminal code of the Russian Federation [25] (further - UK the Russian Federation), in special chapter 20 provides crimes against a family and minors. Article 157 UK the Russian Federation carries to a number of crimes malicious evasion from payment of means for the maintenance of children or invalid parents. Maintenance of interests of the person obliged to receive the alimony is impossible without real collecting of the alimony on the maintenance. But, unfortunately, the party liable not always voluntary executes this obligation, the question on an order of enforcement of maintenance obligations therefore is very important. This norm of enforcement also has provided UK the Russian Federation it it is very actual and important for our time.

Besides, the Civil code of the Russian Federation [26] (further - GK the Russian Federation) has provided inviolability of family secret (item 150 GK the Russian Federation), an order of the state registration of the conclusion and divorce, adoption and udocherenija, etc.

Let's repeat, that in the Constitution of the Russian Federation the state protection and support of a family, motherhood, paternity and the childhood is fixed. In this connection, the primary goals and directions of a family policy of the Russian Federation for the period till 2025, positions which are fixed in the Concept of the state family policy of Russia for the period to 2025 are defined

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Year.

The purposes of a family policy of the Russian Federation for the period till 2025 are:

1) increase of level of family well-being;

2) strengthening of a social role of a family in a society life (the decision of nation-wide problems);

3) creation of conditions for performance by a family of its basic functions.

The safe family leans against traditional family values,

Such as the union of the man and the woman, marriage registration, authority of the parental power, a birth and joint education of several children, love to children, shown, including, in refusal of abortion as hatred certificate to them.

2. Following principles are put in a basis of the state family policy of the Russian Federation:

1) unity and consistency of a family policy, including federal, regional levels and local government level;

2) the account of the Russian family traditions, including, traditions having many children and mnogopokolennoj families, authority of the parental power, stability of marriage;

3) a priority of the rights, duties and responsibility of parents for education and development of children, a choice of methods of education, soglasujushchihsja with a level of development of the child; [27]

4) partnership of the state, a society and a family in education of children;

5) interactions of the state and church in decision-making in sphere of family relations;

6) a priority of granting of measures of support to the families having children;

7) the differentiated approach in granting of measures of the state support with reference to various types of families, depending on quantity of children and their age, financial condition of a family, a state of health of parents and children;

8) self-organising and self-maintenance of a family, independence of a family in decision-making concerning the development;

9) recognitions of education of children not only private, but also obshchestvennoznachimoj activity;

10) social continuity and stability of measures of the state family policy.

3. The primary goals of a policy of the Russian Federation for the period till 2025 are:

1) propagation of family well-being and traditional family values;

2) strengthening of institute of marriage, reduction of number of divorces, first of all divorces of the spouses having minor children, births of children out of marriage;

3) perfection of system of preventive maintenance of abortions, rendering assistance to pregnant women with a view of pregnancy preservation, regulation of application of reproductive technologies and substitute motherhood;

4) strengthening of measures of support of large families;

5) strengthening of measures of support of families with children invalids;

6) improvement of position of families, first of all families with minors with children, including reduction of number of needy families with minor children, improvement of living conditions of families;

7) development of a social infrastructure of rendering of services to families with children, including allowing to combine labour employment and education of children (first of all providing qualitative and accessible a preschool education, school education, an additional education of children, all kinds of medical aid to families with children);

8) creation of an infrastructure of family rest, improvement and leisure, including creation of family parks;

9) protection of a family against illegal intervention in home life, social protection of the family which have appeared in a difficult vital situation;

10) expansion of participation of Russian orthodox church, and also other religious organisations of the citizens practising religions, constituting an integral part of a historical heritage of the people of Russia, other public organisations in decision-making in sphere of family relations.

Legal regulation of family relations is directed, first of all, on protection of the rights and interests of members of a family, on formation between them the relations constructed on feelings of mutual love and respect, mutual aid and responsibility before each other, on creation in a family of necessary conditions for education of children.

Still known Russian scientist-jurist A.I.Zagorovsky, designating criteria of independence of the family law, characterised family relations as follows: «a basis of legal relations family - requirements of the physical nature and moral feeling»; «family relations generate the family laws putting in certain personal dependence of one member of a matrimony from another, and create certain legal status (status) for these members»; «in [28] relations family a measure and the account of the rights are inconvenient owing to special properties of these relations, more moral, than legal» [29 [30] [31] [32].

It is necessary to consider the problem also families - as on the subject of law. At the same time it is necessary to consider that fact, that the civil legislation accurately defines objects and subjects of civil law. We will notice, that the family as the subject of civil law is not considered. The family legislation regulating more particularly the relations between members of a family, also has not provided in the maintenance the norm, concerning a family as subject of law, and has carried all kinds of family relations to a circle of members of a family - to spouses, parents, children and other relatives (item 7 SK the Russian Federation). Taking into account told, it is possible to draw a conclusion, that the family as a unit cannot be the subject of law, and its members can separately act as subjects of law. Hence, the family legislation does not consider a family as the subject of law, and considers only subjects of law of its members with the certain rights, duties and responsibility.

In the General Declaration of human rights it is noted: «the Family is a natural and basic cell of a society and has the right to protection from a society and the state» (item 16 item 3). Similar positions have been reflected later in the International pact «About the civil and political rights» (item 1, 2 items 23). In the International pact «About

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The economic, social and cultural rights »by the state-participants it is recognised, that« to a family which is a natural and basic cell of a society, the widest protection and the help should be given whenever possible, in particular at its formation and while on its responsibility the care of dependent children and their education »(item 10 item 1), and also« the common right on a sufficient standard of life for it and his families, including a sufficient food, clothes and dwelling lays, and on continuous improvement of conditions of a life »(item 11 item 1). In a preamble of the Convention of the United Nations« About the rights of the child »the family is considered as the basic cell of a society and a habitat for growth and well-being of all its members, and especially children to which necessary protection and assistance should be given so that it could assign completely to herself duties within the limits of a society.

As the difficult many-sided social phenomenon a family represents itself as an object of research in many areas of a science, including various branches of jurisprudence. As it will seem strange, till now in the Russian family legislation is absent

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Legal definition of concept of a family.

It is necessary to notice especially, that marriage takes the central place at family institute as has basic value for occurrence not only matrimony relations, but also other relations developing between members of a family. So, O.G.Kurilenko quite, fairly, in our opinion, considers marriage by the major basis of formation of a family. Legal definition of marriage, as well as concept of a family, does not exist. This results from the fact that marriage - the difficult complex social phenomenon which is under influence not only legal, but [33 [34] [35] and ethical standards, and also economic laws that would call into question completeness of definition of marriage only from legal positions [36 [37] [38].

If to speak about the present stage of development of domestic jurisprudence the problematics family-marital relationships on - the former is of interest for domestic researchers. The scientists who are engaged in studying of a problematics of the family law of the Russian Federation, pay attention to absence of accurate legislative definition of key concepts. Original definitions of base concepts of the family law, such as "family", "marriage", «the family are offered

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Life », etc.

According to N.V.Orlovoj, attempt to make lawful definition of concept of marriage would be fruitless as it is complex institute and legal definition it would be inevitable incomplete for it could not cover the essential signs of marriage laying outside of the right [39]. At the same time, it specifies in importance of exact and full definition of concept of marriage as one of the major legal institutions as this definition is necessary for restriction of marriage from relatives under the maintenance of legal relations, and, hence, for correct application of the law. Under N.N.sackcloth's fair remark, «complexity of a category of marriage as legal phenomenon consists that in it the spiritual, physical, material moments» [40] are simultaneously traced.

At the same time, in the scientific literature there are various concepts of marriage. For example, marriage is defined by Roman lawyer Modestinom as «the union

The husband and the wife, connection of all life, a generality of the divine and human right. This idealistic definition of marriage mismatched the valid position: even during a classical epoch when the Roman Law has reached the highest development, the woman far not was a companion of the husband equal in rights [41 [42] [43] [44]. V.I.Dal opened sense of a word "marriage" as the lawful union of the husband and the wife, a matrimony. In sociological sense marriage is defined as «the union between persons man's and female by means of which relations between floors are regulated and position of the child in a society», or «form of relations historically caused, authorised and regulated by a society between the woman and the man establishing them is defined

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Relations to each other and to children ».

As wrote M.Kovalevsky, «hardly probable what question in history of the marriage right would be exposed to so careful processing, as a question on the most ancient order of the conclusion of the matrimony. We have, almost trehsotletnjuju the literature and could constitute the whole library of the monographic researches written in every possible languages and devoted to its most detailed studying at razlichnejshih of the people of globe. And still this question far is not solved definitively; raznorechija and disagreement

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Continue to keep still ».

The marriage condition long time was considered as a duty of the citizen before a society: «the Marriage condition - an original way of existence of that adult person demanded by the nature and other floor. Only in this union all its abilities» [45] reveal. Only marriage granted the right to the introduction of the man and the woman in lawful intimate communication. Marriage declared monopoly for sexual contact. Only conjugal ties caused occurrence of social approved posterity. Nobody will argue, what even the modern right spends accurate border between marital relationships and co-habitation. As has precisely noticed M.Futko, «marriage became more to the general as practice, more public as institute, more private as a way of life much more closely rallying a married couple and by that effectively allocating it from a field all other social

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Communications ».

A.M.nechaeva, also giving traditional concept of marriage as union of the man and the woman, involving legal effects, at the same time, simultaneously regards it as the form of relations between persons of a different floor and as an original symbol for marrying and for

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The states.

It is necessary to notice, that one of authors of the Russian Constitution, doctor of juridical science Sergey Shahraj, has suggested to designate more particularly concept of marriage of the Constitution of the Russian Federation, having underlined, that is the union of the man and the woman. «In 1993 to us and in a head did not come to write down to Constitutions, that marriage is the union of the man and the woman. In 1993 it was meant, that marriage is the union of the man and the woman, instead of the deputy with the deputy. It was necessary to write down, probably,», - has declared SHahraj.

Further it is necessary to notice, that by the legal nature marriage in the bourgeois states it was considered as a version grazhdanskopravovoj transactions, as the contract.

At the same time, as fairly specifies E.S. The hetman, in the legal literature is not present unity of opinions concerning the legal nature of marriage as agreement of spouses [46 [47] [48] [49] [50]. Thus one authors consider marriage as the strong-willed purposeful certificate made on purpose to generate legal effect, and in it similarity of marriage to the civil transaction, others - as the usual civil contract is shown. The purpose of the introduction into marriage, for example, O.S.Ioffe defined desire of persons to obtain state recognition of the created union, which basis - mutual love and respect - does not enter into its legal maintenance. As soon as this basis will be undermined, marriage can stop at any time, that is impossible in civil-law transactions. Therefore the social maintenance, the purposes and legal features of marriage exclude its estimation as one of a version of civil-law transactions [51 [52] [53].

The diverse points of view on the legal nature of marriage exist not only in the domestic family law, but also in the family law of the foreign states. In particular, E.A.Vasilev allocates from among existing abroad three basic conceptual points of view on

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Marriage: marriage-contract, marriage-status, marriage-partnership.

Also in the legal literature such opinion expressed also, that marriage as the union of the man and the woman, directed on family creation, basically should have lifelong character. It is impossible to disagree and with M.V.Antokolskoj's position, that the marriage purpose - not only occurrence of marriage legal relation, but also creation of the union based on love, respect, mutual aid, mutual support, etc. [54].

In turn M.V.Krotov considers, that marriage should be understood as unity of two concepts: marriage - as the juridical fact generating the relations of a matrimony, and marriage - as a special legal status of the persons who are married. If marriage as the juridical fact, is completely settled by the right and submits to its norms, marriage, as the special status

Persons, it is regulated differently. The marital status status generates at spouses of the right and a duty. They can be settled the right only in certain limits. Such values as mutual love and respect, ethical and moral bases of matrimonial relations, physical relations though are not without legal consequences, but are not exposed to direct legal regulation. «They come under to the account at acceptance of those or other decisions, being perceived thus as the certain reality which cannot be neither is proved, nor confuted, shown to any one denominator» [55].

The marriage purpose is a creation of a family. And the purpose of creation of a family is, first of all, a birth and education of children, mutual aid and support of members of a family, conducting housekeeping and others.

Thus, taking into account the stated we will try to make following definition of marriage: "marriage" is an equal in rights, voluntary union of the man and the woman, the prisoner for the purpose of creation of a family and generating system of the mutual rights fixed in the law and duties. Marriage is the legal relation generating at spouses the certain rights and duties of personal and property character.

Research has shown, that marriage is closely connected with concept a family and is its basis. The marriage institute is one of the main institutes of the family law of Russia. Marriage is the juridical fact by means of which there are family legal relations.

It has been established, that the uniform concept of marriage and a family is not present either in proceedings, or in the family legislation. We consider, that is necessary to develop uniform concept of a family and marriage and to fix them in normativnopravovom the certificate.

Legal definition of concept of a family is obviously necessary to fix in SK the Russian Federation, for example, as it is made in the Family code of Ukraine, in which item 1 family strengthening, as social institute and as union of concrete persons, it is defined as the purpose of regulation of family relations [56]. Considering recently outlined tendency growth of number of not registered brachno-matrimonies (further will be considered in more details), we suggest to expand traditional concept of a family about which many authors write, and to make following definition: "family" - the union of the man and the woman, based on marriage or actual marriage and family relations, relationship, adoption and other forms of acceptance of children on the education, connected by joint residence, conducting the general housekeeping, consolidated by family laws and duties.

Quite probably, that the made definition will cause discussion and objections, but it is represented quite proved, to provide in definition of concept "family" and actual marriage and family relations which, unfortunately, do not admit now the state.

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A source: Albikov Ildar Rostjamovich. ACTUAL MARRIAGE AND FAMILY RELATIONS of the MAN And the WOMAN: the THEORY And PRACTICE PRAVOPRIMENENIJA. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -. 2014

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