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Family law. General characteristics of the industry

The procedure for concluding and dissolving a marriage.

Personal and property rights and obligations of spouses.

Rights and obligations of parents and children.

Keywords: family law, family law, marriage, rights and obligations of spouses, invalidity of marriage, marriage contract, family members, children, parents, maintenance obligations, deprivation (restriction) of parental rights, adoption (adoption), foster family, juvenile justice.

Question 1. General characteristics of family law.

The task of family law is the protection of the family, motherhood, fatherhood and childhood.

Family law is aimed at strengthening the family, building family relations on feelings of mutual love and respect, mutual assistance and responsibility to its members, the inadmissibility of anyone interfering in family affairs, ensuring the unimpeded exercise of their rights by family members, and the possibility of judicial protection of these rights.

The regulation of family relations is based on the following principles:

Recognition by the state of only a marriage concluded in the civil registry offices;

Voluntary marriage of men and women;

Equality of rights of spouses in the family;

Resolution of intra-family disputes by mutual agreement;

Priority of family education of children;

Care of the state, parents about the welfare and development of children;

Announcement of priority protection of the rights and interests of minors and disabled family members;

Prohibition of any form of restriction of the rights of citizens when entering into marriage and in family relations on the grounds of social, racial, national, linguistic and religious affiliation;

Restriction of the rights of citizens in the family only on the basis of federal laws to the extent necessary to protect the morality, health, rights and legitimate interests of other family members and other citizens.

Family law establishes:

1) the conditions and procedure for entering into marriage;

2) conditions for the termination of marriage and its recognition as invalid;

3) personal non-property and property relations between spouses, parents and children;

4) relations between other relatives and other persons;

5) the forms and procedure for placing children left without parental care in the family.

Family legislation is built, first of all, on the fundamental provisions of the Constitution of Russia.

Article 7 of the Constitution establishes state support for the family, motherhood, fatherhood and childhood.

Article 23 of the Russian Constitution grants the citizen the right to inviolability of private life, personal and family secrets.

Article 38 of the Russian Constitution establishes protection by the state of motherhood, childhood and the family. It establishes the equal right and duty of parents to take care of their children and their upbringing. Able-bodied children who have reached the age of 18 must take care of disabled parents.

Family law includes the Family Code Russian Federation dated December 29, 1995 No. 223-FZ (as amended and supplemented), federal laws adopted in accordance with it, as well as laws of the constituent entities of the Russian Federation.

If property and personal non-property relations between family members are not regulated by family law, then civil law applies, provided that it does not contradict the essence of family relations. An integral part of family law are, according to Part 4 of Art. 15 of the Constitution of Russia, universally recognized principles and norms international law and international treaties of the Russian Federation.

Article 16 of the Universal Declaration of Human Rights (1948) grants men and women who have reached the age of majority the right, without any restriction on grounds of race, nationality or religion, to marry and found a family. They are granted the same rights to enter into marriage, during marriage and at the time of its dissolution.

Marriage is possible only with the free and full consent of both parties entering into marriage.

The family is the basic unit of society and has the right to be protected by society and the state.

The same provisions are actually reproduced in Art. 10 of the International Covenant on Economic, Social and Cultural Rights (1966). In particular, this article calls on states to provide special protection and assistance to the family, especially during its formation and while it bears the responsibility and care for minor children and their upbringing. These rules are also detailed in

The term "family law" is used in several ways.

Firstly, the term "family law" means an independent branch of Russian law, consisting of a system of legal norms governing family relations.

Secondly, sometimes the term "family law" is used to refer to the totality of legal acts regulating family relations. In other words, in this case, “family law” is synonymous with the concept of “family law”.

Thirdly, “family law” is an independent branch of jurisprudence, an independent direction of legal science (a set of various ideas, concepts, views, points of view on family law phenomena).

Fourthly, “family law” is an academic discipline provided for by the State Educational Standard of Higher Professional Education in the specialty “jurisprudence”.

Fifth, “family law” is a subjective right, which is the type and measure of the possible behavior of an authorized person (family member) in the field of family relations.

Family law subject. Since we are talking about family law, family relations are the subject of its legal regulation. However, not all family relations can objectively be subject to legal regulation. The family develops diverse relationships arising from the physical, everyday, moral, moral, ethical, spiritual nature of a person. Many of these relationships cannot be subject to legal regulation (for example, love, respect, psychological, spiritual ties, mutual feelings of spouses and other family members, etc.) and are under the influence of such social regulators as religion, morality, morality, customs, traditions, etc. Therefore, a rather extensive area of family relations remains outside the scope of family law, which, based on their essence, cannot be regulated by law. Family law distinguishes from the total mass of relations existing in the family only those that can objectively be subject to legal regulation and are especially significant from the point of view of society and the state. Together they form the subject of family law.

1) the conditions and procedure for entering into marriage, terminating marriage and declaring it invalid;

2) personal non-property and property relations between family members: spouses, parents and children (adoptive parents and adopted children), and in cases and within the limits provided for by family legislation, between other relatives and other persons;

3) the forms and procedure for placing children left without parental care in a family.

By their legal nature, relations regulated by family law can be personal and property.

Personal non-property relations are connected with the realization of personal interests by family members. So, personal relationships arise when entering into marriage and when terminating a marriage, when spouses choose a surname when concluding and dissolving a marriage, when resolving issues of motherhood and fatherhood, the upbringing and education of children and other issues. family life. They also include relations arising in connection with the realization by a child of the right to live and be brought up in a family, to communicate with parents and other relatives, the right to protect his rights and legitimate interests, etc. Personal non-property relations between family members, therefore, are very diverse , but are subject to legal influence only in the main, main points.

Property relations are relations that arise in connection with any material wealth. As a subject of legal regulation of family law, property relations occupy a larger place in terms of their volume. These are relations between spouses regarding the ownership of property, maintenance obligations of spouses ( former spouses), parents and children, and other family members.

The specifics of family relations

1. Relations that are the subject of regulation of family law are characterized by a special subject composition. The circle of persons who can be their participants is clearly defined by family law. In family legal relations are involved not only individuals, and citizens who have a special family legal status - spouse, child, parent, grandparents, etc.

2. The basis of family legal relations is formed by specific legal facts - marriage and kinship, motherhood, paternity, adoption, etc. Despite the fact that contracts and agreements are the basis for the emergence of some family legal relations, nevertheless, the existence of marriage or kinship (an equivalent relationship) is a necessary condition for their existence.

3. A characteristic feature of family legal relations is their continuing nature. As A.P. Sergeev rightly pointed out, although the lasting nature is also inherent in some other civil legal relations, in particular legal property relations, it is immanent for family relations, that is, it follows from their very nature. And the point is not only that the majority of family legal relations are based on such time-limited legal facts as kinship, marriage, adoption and other circumstances. “The lasting nature of family legal relations is mainly due to the specifics of their goals and objectives, which are to create a family, raise children, provide material support for disabled relatives and spouses, etc.” Family legal relations imply the need for long-term interaction of their participants1.

4. Family relations are characterized by strict individualization of their participants, their indispensability in these relations by other persons. Family rights and obligations are “non-current”, not transferable either in the order of universal succession (inheritance) or by agreement of the parties. In family law, there are no such institutions as the assignment of claims and the transfer of debt.

5. Since it is impossible to replace their participants in family relations, any family relations (property or personal non-property) acquire a personal character. However, the personal nature of the relations that develop in the family is determined not only by the fact that personal and property rights and obligations are inseparable from the personality of the authorized person.

According to their content, family relations are predominantly personal in nature and only then property. Personal relations are of a priority nature, since property relations are always associated with them and follow from them. Personal relationships largely determine the content of the rules governing property relations. For example, the legislator, taking into account the influence of personal moments (attachments, feelings, emotions, etc.) on the process of concluding a marriage contract or maintenance agreement, establishes special restrictions. “Property relations in the family, although they are important, are derived from personal ones, since they arise only in the presence of the latter and are called upon to serve them.”

The features of family relations discussed above make it possible to distinguish them from the general mass of property and personal legal relations into a separate sphere - an independent subject of family law regulation.

Features of the method of family law regulation

The characteristic properties of relations that form the subject of family law regulation directly affect the method of regulation. The method of legal regulation in the theory of law is understood as "methods of legal influence, their combination, characterizing the use in a given area of public relations of one or another set of legal tools, means of legal influence." Due to the fact that the object of the regulatory impact of law is not a random accumulation of relations, but their system, then the complex of legal means of influence, in turn, is a set of interconnected, albeit varying in a specific ratio, elements.

In the first approximation, the method of family law can be characterized as permissive-imperative. According to the content of the impact on social relations, the method of family law is permissible. “In most cases, the state provides the participants in family legal relations with the opportunity to choose their own model of behavior in order to meet their vital interests and needs, reserving the right to determine the scope of appropriate behavior in imperative prescriptions.” Modern family law, unlike the previous one, makes rights a priority. Permissions lead in quantitative terms among all other family law prescriptions. At the same time, the characterization of the method of family law regulation is far from exhausted by the solution of the issue of the predominance of dispositive or imperative norms. Ways and means of influencing family relations are very diverse. Family law: a course of lectures / A.M. Nechaev. - 2nd ed., revised. and additional - M.: Jurist, 2009.

The specifics of family relations

1. Relations that are the subject of regulation of family law are characterized by a special subject composition. The circle of persons who can be their participants is clearly defined by family law. Family legal relations involve not just individuals, but citizens who have a special family legal status - spouse, child, parent, grandparents, etc.

2. The basis of family legal relations is formed by specific legal facts - marriage and kinship, motherhood, paternity, adoption, etc. necessary prerequisite for their existence.

3. A characteristic feature of family legal relations is their continuing nature. 4. Family relations are characterized by strict individualization of their participants, their indispensability in these relations by other persons. Family rights and obligations are “non-current”, not transferable either in the order of universal succession (inheritance) or by agreement of the parties. In family law, there are no such institutions as the assignment of claims and the transfer of debt.

6. Family relations have a special personal-confidential nature, since the main place in them is occupied by personal ties of family members. “The essence of the family legal relationship is such that it always includes an element of the personal, regardless of the target orientation of the legal relationship, its nature and type. At the same time, the presence of this element is not necessarily associated with the personal rights of participants in a family relationship. It exists independently, regardless of the personal rights of the subjects ... ”The personal-confidential nature of family law norms governing both personal and property relations forms their core, the essence that leaves its mark on all family law institutions.

Features of the method of family law regulation

In the first approximation, the method of family law can be characterized as permissive-imperative. According to the content of the impact on social relations, the method of family law is permissible. “In most cases, the state provides the participants in family legal relations with the opportunity to choose their own model of behavior in order to meet their vital interests and needs, reserving the right to determine the scope of appropriate behavior in imperative prescriptions.” Modern family law, unlike the previous one, makes rights a priority. Permissions lead in quantitative terms among all other family law prescriptions. However, the number of imperative prescriptions is still large (relations arising in connection with marriage, termination of marriage and its recognition as invalid; personal legal relations between parents and children; relations for the adoption of a child, etc.).

At the same time, the characterization of the method of family law regulation is far from exhausted by the solution of the issue of the predominance of dispositive or imperative norms. Ways and means of influencing family relations are very diverse. In addition to permissions, which are a priority way of regulating family relations, in the arsenal of methods of influence of family law there are also prohibitions, norms containing instructions obliging certain actions to be performed; rules intended for clarification, as well as the protection of family rights and responsibility for non-fulfillment or improper fulfillment of obligations as peculiar ways of regulating family relations.

Prohibitions have certainty, are clearly expressed in legal acts, apply to specific actions and deeds. Depending on the form of expression, prohibitions are divided into direct and indirect.

Direct prohibitions are prohibitions in which the will of the legislator is expressed clearly and openly. Deviations from direct prohibitions are possible only in cases provided for by law. So, in paragraph 2 of Art. 116 of the RF IC contains a direct prohibition on the impossibility of the reverse recovery of alimony received without sufficient reason. The same rule provides for exceptions when reverse collection of alimony is possible:

if the court decision on the recovery of alimony was canceled due to the alimony recipient reporting false information or providing false documents;

if the agreement on the payment of alimony is declared invalid as a result of its conclusion under the influence of deceit, threats or violence on the part of the alimony recipient;

when a court verdict establishes the fact of forgery of a court decision, an agreement on the payment of alimony or a writ of execution on the basis of which alimony was paid.

Indirect prohibitions are prohibitions, from the content of which the conclusion follows that any actions are inadmissible. Exceptions to them are provided by law. According to paragraph 1 of Art. 11 of the RF IC, marriage is concluded after a month from the date of filing an application with the registry office, which is an indirect ban on registering a marriage before the expiration of the specified period. At the same time, the legislator allows the possibility of reducing or increasing the monthly period if there are good reasons or special circumstances.

Permissions - permission to commit actions recorded in the rules of family law.

Permissions, in contrast to prohibitions, are addressed, in addition to participants in family relations, to legal entities (guardianship and guardianship authorities, the court), are less defined and are closely related to procedural rules.

According to the form of expression, permissions are also direct and indirect.

Direct permissions are those in which the permissions are explicitly expressed. So, paragraph 1 of Art. 1 of the Family Code of the Russian Federation provides an opportunity to conclude a marriage contract both before the state registration of marriage, and at any time during the marriage.

Indirect permissions are instructions, the content of which indicates the possibility of a certain behavior. For example, in paragraph 1 of Art. 64 of the RF IC states that "parents are the legal representatives of their children and act in defense of their rights and interests in relations with any individuals and legal entities, including in courts without special powers."

Along with prohibitions and permissions, family law norms contain prescriptions for certain actions. So, in paragraph 5 of Art. 25 of the RF IC establishes that the court is obliged, within three days from the date of entry into force of the court decision on the dissolution of marriage, to send an extract from this decision to the registry office at the place of registration of the marriage.

Rules-explanations also belong to the ways of regulating family relations. For example, in Art. 14 of the RF IC explains who is included in the circle of close relatives between whom marriage is not allowed; in paragraph 1 of Art. 27 of the RF IC defines the fictitiousness of marriage.

The principles of family law should be understood as the ideas enshrined in family law, the fundamental principles in accordance with which personal and property relations are regulated by family law.

Family law principles include:

1) the principle of protecting the family, motherhood and childhood by the state;

2) the principle of prohibition of any form of restriction of the rights of citizens when entering into marriage and in family relations on the grounds of social, racial, national, linguistic or religious affiliation;

3) the principle of equal rights of spouses in the family;

4) the principle of voluntary marriage between a man and a woman;

5) the principle of recognition of a marriage registered with the registry office;

6) the principle of monogamy (monogamy);

7) the principle of equality of the legal status of children born in marriage and children born of parents who are not married to each other;

8) the principle of the priority of family upbringing of children, concern for their well-being and development;

9) the principle of priority protection of the rights and interests of minors and disabled family members.

Family law is an independent branch of law, which is a set of legal norms and institutions that regulate personal and related property relations arising on The subject of regulation of family law are the following relations:

1) establishment of the procedure and conditions for entering into marriage
2) rights and obligations of family members
3) personal non-property and property relations arising in connection with adoption, guardianship and guardianship, other forms of placement in the upbringing of orphans and children left without parental care in a family
4) procedure and conditions for termination of marriage
5) recognition of marriage as invalid
6) the procedure for registering acts of civil status on the basis of marriage, consanguinity, adoption and other forms of placement of children for upbringing in families.

Family law method- this is a set of methods, means, techniques that regulate relations that are part of the subject of family law. The method of family law in terms of the content of the impact on relationships is permissible. In the form of an imperative order.
A characteristic feature of family law regulation is:
1) legal equality of the parties
2) autonomy of the will of the participants in family legal relations
3) strengthening of the dispositive principle in family law regulation. The subject can choose from a variety of behaviors one

2. Under the basic principles of family law, it is customary to understand the guidelines that determine the essence of this branch of law and have mandatory meanings due to their legal consolidation.

2) Principles:
1) Article 3 - protection of the family by the state. The state takes care of the family by creating conditions for economic independence and the growth of the family's well-being through a preferential tax policy, payment of state benefits, preferential lending.
2) The principle of legal regulation of marriage and family relations by the state. Only a marriage concluded in the registry office is recognized. Religious rites relating to matters of marriage and family law do not matter. It does not apply to those committed before the formation or restoration of the registry office.
3) The protection of the right follows from marriage and family relations. Protection of the right is carried out by the court, guardianship and trusteeship authority, registry offices. Self-defense of the right is allowed within the limits provided by the legislation.
4) Voluntary marriage between a man and a woman
5) Monogamy (monogamy)
6) Free divorce
7) Responsibility for raising children
8) The priority right of children (a child has the right to special, preferential, priority care both from parents and from the state. The state guarantees the protection of the rights of the child both before and after his birth
9) The priority of family education of children. All children have the right to life in a family, in the circle of parents and close relatives, to their care and attention. The family is the natural environment of the child. They enjoy special support, attention and care large families, families that have adopted orphans, children left without parental care.

Seed legal relationship- relations regulated by seed legislation. By legal nature, family relations can be personal and property. Personal (non-property) relations arise when entering into marriage and when terminating a marriage, when a spouse chooses a surname, when entering into and dissolving a marriage, when spouses resolve issues of motherhood and fatherhood, upbringing and education of children.

Property relations- relations between spouses regarding their common and separate property, maintenance obligations of spouses and former spouses, maintenance obligations of parents and children, as well as other family members.

Rights and obligations of spouses.

The rights and obligations of spouses can be divided into:

Personal, non-property nature (for example, washing clothes, visiting parent meetings, choice of surname, profession, etc.)

Property, that is, concerning the rights to specific things.

The Family Code of the Russian Federation distinguishes the following types of personal rights of spouses:

The right to free choice of occupation, profession, place of stay and residence;

The right to joint resolution of family life issues;

The right of spouses to choose their last name.

To the common property of the spouses in accordance with paragraph 2 of Art. 34 of the Family Code of the Russian Federation include:

a) the income of the spouses labor activity, entrepreneurial activity and results of intellectual activity;

b) the pensions, allowances and other cash payments, which do not have a special purpose (amounts of material assistance, amounts paid in compensation for damage in connection with disability due to injury or other damage to health, and others are the personal property of the spouse);

c) movable and immovable things (residential and non-residential buildings and premises, land plots, motor vehicles, furniture) acquired at the expense of the general income of spouses; Appliances and so on.); d) securities acquired at the expense of the joint income of the spouses, shares, deposits, shares in the capital, contributed to credit institutions and other commercial organizations; e) any other property acquired by the spouses during the marriage, regardless of the fact in the name of which of the spouses it was acquired or in the name of which or which of the spouses contributed cash. The list of income and property of the spouses, which become their joint property, is open; for example, an apartment registered in the name of one of the spouses during the marriage will be recognized as being jointly owned, in the same way as the furniture acquired by the spouses, which they used while living in this apartment.

When one of the spouses makes a transaction on the disposal of the common property of the spouses, it is assumed that he acts with the consent of the other spouse.

The property that belonged to each of the spouses before marriage, as well as the property received by one of the spouses during marriage as a gift, by way of inheritance or by other gratuitous transactions (for example, as a result of privatization), is not recognized as common joint property of the spouses. This property is the separate property of each of the spouses.

The total debts of the spouses in the division of the common property of the spouses shall be distributed among the spouses in proportion to the shares awarded to them.

Family Law Tasks

The task of family law is to protect the family, motherhood, fatherhood and childhood. It is aimed at strengthening the family, building family relations on feelings of mutual love and respect, mutual assistance and responsibility to its members, the inadmissibility of anyone interfering in family affairs, ensuring the unimpeded exercise of family members of their rights, the possibility of judicial protection of these rights.

Principles of legal regulation of family relations

The regulation of family relations is based on the following principles:

Recognition by the state of only a marriage concluded in the civil registry offices;

Voluntary marriage of men and women;

Equality of rights of spouses in the family;

Resolution of intra-family disputes by mutual agreement;

Priority of family education of children;

Care of the state, parents about the welfare and development of children;

Announcement of priority protection of the rights and interests of minors and disabled family members;

Prohibition of any form of restriction of the rights of citizens when entering into marriage and in family relations on the grounds of social, racial, national, linguistic and religious affiliation;

Relationships regulated by family law

Family law establishes:

Conditions and procedure for entering into marriage;

Conditions for the termination of marriage and its recognition as invalid;

Personal non-property and property relations between spouses, parents and children;

Relationships between other relatives and other persons;

Forms and order of placement in the family of children left without parental care.

Family law

Family legislation is built primarily on the fundamental provisions of the Constitution of Russia.

Article 7 of the Constitution establishes state support for the family, motherhood, fatherhood and childhood.

Article 23 of the Russian Constitution grants the citizen the right to inviolability of private life, personal and family secrets.

Family legislation includes the Family Code of the Russian Federation, adopted by the State Duma on December 8, 1995, federal laws adopted in accordance with it, as well as laws of the constituent entities of the Russian Federation.

If property and personal non-property relations between family members are not regulated by family law, then civil law applies, provided that it does not contradict the essence of family relations. An integral part of family law are, according to Part 4 of Art. 15 of the Constitution of Russia, generally recognized principles and norms of international law and international treaties of the Russian Federation.

Article 16 of the Universal Declaration of Human Rights (1948) grants men and women who have reached the age of majority the right, without any restriction on grounds of race, nationality or religion, to marry and found a family. They are granted the same rights upon entry into marriage, during marriage and at the time of its dissolution.

Marriage is possible only with the free and full consent of both parties to the marriage.

The family is the basic unit of society and has the right to be protected by society and the state.

International Covenant on Civil and Political Rights - Art. 23 (1966);

Convention on the Elimination of All Forms of Discrimination against Women (1981);

Convention on the Rights of the Child (1989);

nationality conventions married woman(1958).

Exercise and protection of family rights

Each family member, at his own discretion, manages his rights that arise from family relations, including the right to protect these rights.

At the same time, the law (Article 7) also establishes the limits of these rights: in exercising one's rights, one cannot violate the rights, freedoms and legitimate interests of other family members and other citizens.

To protect their rights, a person can go to court.

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