Persons who have the right to demand recognition of marriage invalid. Recognition of marriage invalid

30.04.2019

Article 28 of the RF IC with comments and changes in 2018.

1. Require the recognition of marriage invalid entitled:

a minor spouse, his parents (persons replacing them), the body of guardianship and guardianship or the prosecutor, if the marriage is concluded with a person who has not reached the marriage, in the absence of permission to conclude a marriage before reaching this face of marriage (Article 13 of this Code). After reaching a minor spouse of the age of eighteen years, demanding recognition of marriage is invalid only this spouse;
the spouse, whose rights are violated by the conclusion of marriage, as well as the prosecutor, if the marriage is concluded in the absence of the voluntary consent of one of the spouses for its conclusion: as a result of coercion, deception, delusion or inability due to its condition at the time of state registration of the marriage's conclusion, understand the meaning of their actions and lead them;
the spouse that did not know the presence of the circumstances preventing the conclusion of marriage, the guardian of the spouse recognized as incapable, the spouse in the previous non-worn marriage, other persons whose rights were violated by the conclusion of marriage produced in violation of Article 14 of this Code, as well as the guardianship body and prosecutor ;
prosecutor, as well as who did not know about the fictitality of marriage, the spouse in the event of a fictitious marriage;
the spouse, whose rights are violated, subject to the circumstances specified in paragraph 3 of Article 15 of this Code.

2. When considering the case on invalidation of marriage concluded with a person who has not reached the marriage, as well as a person recognized by the court, the guardianship and guardianship authority is involved in the case.

Commentary on Article 28 of the RF IC:

This article indicates a fairly wide range of persons who may require marriage invalidation. The purpose of this is to ensure the implementation of the law, eliminate unfair solutions.

The article establishes a circle of persons who may apply to the court with a claim for recognition of marriage invalid. Previously, the legislation determined the circle of such persons regardless of the foundation of the invalidity of the marriage. As a general rule, to require such recognition has the right to be as persons consisting in such a marriage (regardless of their good faith at the conclusion of marriage), and any persons whose rights were violated by the conclusion of marriage, as well as the guardianship and guardianship or prosecutor. Such an approach in most cases led to a violation of the rights of spouses, when they did not consider it necessary to make a claim for the invalidity of the marriage (under the vices of the will, the fictitiousness of the marriage at the time of its conclusion, etc.). The RF IC specifies the range of possible plaintiffs in relation to each basis of the invalidity of the marriage and allocates this question in a separate article.

The RF CK gives an exhaustive list of persons who are given the right to claim for the recognition of marriage invalid in cases of marriage of minors without proper official permission.

In the range of possible plaintiffs included the minor spouse itself, as well as persons and bodies that are obliged to defend the rights and interests of minors, their legal representatives (parents, adoptive parents, guardians or trustees, adoptive parents), and in addition, guardianship and guardianship authorities And the prosecutor. Another spouse and other interested parties are not entitled to handle such a requirement.

When a minor spouse has reached the age of majority (marriage), no one, besides him, are not entitled to challenge the reality of marriage, because In these cases, there are no more obstacles to its existence.

Will vice, when marriage, gives the right to present the claim only to a conscientious spouse who was mistaken, deceived, etc., because the swallow of will, which is available at one of the parties (or both parties) at the conclusion of marriage, can later be covered with its free and voluntary The desire to continue marriage. At the same time, no third party can be allowed to impose his will, seeking marriage.

In these cases, it is possible to present such claims from the prosecutor. But if the "victim" side will object to the recognition of marriage invalid, the application of the prosecutor cannot be satisfied.

Under the two-grater, the claim for invalidation of marriage concluded in the presence of obstacles to marriage can be presented: a conscientious spouse (i.e. the spouse that did not know about the state of his wife in another marriage), his spouse for the previous marriage or prosecutor; in the presence of relatives and marriage between the adopter and adopted - each of the spouses or the prosecutor; When marriage with an incomplete person - a conscientious spouse, an incapable spouse (only when recovering and restoring his capacity to the court), a guardian of an incapacular person, guardianship authority or a prosecutor. Under other persons whose rights are violated by the conclusion of such marriages, they should understand children, brothers and sisters and other relatives of spouses who claim to receive inheritance, pensions, etc.

In the RF IC, the circle of persons endowed with the right to demand recognition of an invalid fictitious marriage is significantly narrowed. Such a right is provided only to the prosecutor and that of spouses who did not know that the person who entered into marriage concluded him without intent to create a family. The same spouse who had no intention to create a family himself is not entitled to demand the recognition of marriage invalid.

The claim for the recognition of marriage is invalid in cases where one of the spouses hid when it became married from another presence of a venereal disease or HIV infection (see paragraph 3 of Art. 15 SK and comment on it), and the right to present only conscientious, Deceived spouse.

The court, regardless of who, a lawsuit against the invalidation of marriage, concluded with a person who has not reached the marriage, as well as a person recognized as incapable, is obliged to involve the body of guardianship and guardianship to participate in the case, which in accordance with the law performs functions to protect the rights of incapable and minors. This body should give a conclusion about whether the recognition of marriage will be invalid to comply with the interests of these individuals.

1. Require the recognition of marriage invalid entitled:

a minor spouse, his parents (persons replacing them), the body of guardianship and guardianship or the prosecutor, if the marriage is concluded with a person who has not reached the marriage, in the absence of permission to conclude a marriage before reaching this face of marriage (Article 13 of this Code). After reaching a minor spouse of the age of eighteen years, demanding recognition of marriage is invalid only this spouse;

the spouse, whose rights are violated by the conclusion of marriage, as well as the prosecutor, if the marriage is concluded in the absence of the voluntary consent of one of the spouses for its conclusion: as a result of coercion, deception, delusion or inability due to its condition at the time of state registration of the marriage's conclusion, understand the meaning of their actions and lead them;

the spouse that did not know the presence of the circumstances preventing the conclusion of marriage, the guardian of the spouse recognized as incapable, the spouse in the previous non-worn marriage, other persons whose rights were violated by the conclusion of marriage produced in violation of Article 14 of this Code, as well as the guardianship body and prosecutor ;

prosecutor, as well as who did not know about the fictitality of marriage, the spouse in the event of a fictitious marriage;

the spouse, whose rights are violated, subject to the circumstances specified in paragraph 3 of Article 15 of this Code.

Comments to Art. 28 of the RF IC

1. The rules established by the commented article determine the provision that is important for the institution of marriage recognition is invalid - the right to require recognition of marriage invalid to have persons directly indicated in the law. Depending on the basis of the claims for the recognition of marriage, invalid are entitled to impose the following persons:

If one of the marriage spouses is nearing, subject to the absence of permission to reduce the marriage age, have the right to demand to recognize marriage invalid: a) a minor spouse; b) his parents (their faces replace them - guardians (trustees), adoptive parents); c) guardianship and guardianship authority; d) prosecutor.

These individuals have the right to present a lawsuit regardless of the desire of the most minor. However, paragraph 2 of Art. The CC of the Russian Federation provides that the Court may refuse a claim for invalidation of marriage concluded with a person who has not reached marriage, if the interests of a minor spouse require, and in the absence of its consent to recognize marriage invalid (see Comment on Art. 29 SC RF).

After reaching a juvenile spouse of 18 years, the right to demand recognition of marriage is invalid only to him. An exception is possible if the spouse is declared incapable after reaching them. The right to make a claim in this case should be given to his guardian or prosecutor;

In the absence of the voluntary consent of one of the spouses at the conclusion of marriage as a result of coercion, deception, delusion or inability due to its condition at the time of state registration of marriage, understand the importance of its actions and manage them, the right to demand recognition of marriage is invalid: a) spouse, rights which is violated by the conclusion of marriage; b) Prosecutor.

Since, when concluding a marriage, consent must be expressed consciously, voluntarily by the person who wanted to marry, then to make a claim for recognition of marriage invalid due to the vice of his will on marriage belonging to only this spouse. However, given the possible difficulties of this spouse upon presentation of a claim, the legislator has provided such a right to the prosecutor, which can be claimed for the recognition of marriage invalid only with the consent of the spouse itself, whose rights have been violated. The exception is cases when the person, not being incapacitated, could not understand the meaning of his actions and lead them;

In case of obstacles to the conclusion of marriage established by Art. 14 of the RF IC, the right to demand the recognition of marriage is invalid: a) the spouse who did not know about the presence of obstacles to the conclusion of marriage; b) the guardian of the incapable spouse; c) spouse for the previous unfastened marriage; d) other persons whose rights are violated by the conclusion of this marriage; e) the body of guardianship and guardianship; e) prosecutor.

This clause indicates that in addition to the guardianship and guardianship authority, which are on the protection of the rights and legitimate interests of incapable spouses, as well as the prosecutor carrying out supervision of legality, and other interested persons have the right to lawsuit. However, the RF IC does not define the circle of stakeholders. Therefore, based on the analysis of judicial practice, such persons may be, in particular, the children of the spouse from the previous marriage, the spouse, with which the previous marriage was not terminated, the heirs according to the law, etc.;

In the case of a fictitious marriage, the right to demand a marriage recognition is invalid: a) the prosecutor; b) the spouse that did not know about the fictitality of marriage. Therefore, it can be concluded that it does not have the right to make a claim for recognition of marriage by an invalid person who has married without intent to create a family, i.e. unscrupulous spouse;

In the case of concealment, one of the persons entering into marriage, venereal disease or HIV infection (clause 3 of Art. 15 of the RF IC). The right to demand recognition of marriage invalid has only a spouse whose rights are violated. However, the claim for recognition of marriage is invalid to them may be presented for one year from the day when he learned or had to learn about the concealment from him with another spouse, according to paragraph 4 of Art. 169 of the RF IC and Art. 181 of the Civil Code of the Russian Federation.

When making a claim for recognition of marriage by invalid, the judge must be found out how the reality of the marriage is disputed (paragraph 1 of Art. 27 of the RF IC) and whether the plaintiff refers to the category of persons who, by virtue of paragraph 1 of the commented article, have the right to initiate a marriage Invalid on this basis. If the applicant does not apply to these persons, the judge refuses him to accept the claim on the basis of paragraph 1 of Part 1 of Art. 134 Code of Civil Procedure of the Russian Federation (paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 N 15).

2. Clause 2 of the commented article establishes the obligatory participation of the guardianship and guardianship authority in cases of invalidation of marriage concluded with a person who has not reached the marriage, as well as with a person recognized by the court incapable. The participation of guardianship bodies and guardianship in such categories of cases is a guarantee of the protection of the rights and legitimate interests of incapable and minor spouses, so their participation is obligatory, regardless of those who are claimed for the recognition of marriage invalid. The guardianship and guardianship authority for granting the court prepares a reasonable conclusion that the interests of a minor or incapacitated spouse will be suitable. This conclusion for the court serves as one of the evidence in the case of recognition of a marriage concluded with a person who has not reached the marriage age, as well as a person recognized by the court incapable, invalid.

1. Recognition of marriage invalid may affect the rights and interests of a wide range of persons. It includes first of all the so-called legal spouse, as well as the one who became a spouse is not in his will, a minor spouse, and others. Violation of the laws of the law at the conclusion of marriage is not indifferent to the prosecutor, designed to defend the rights of citizens, as well as for guardianship and guardianship authorities If the interests of a minor are violated. Therefore, in paragraph 1 of the commented article, a detailed list of persons who are granted the right to apply to the court with a claim for recognition of the concluded marriage is invalid. This list includes:
1) a minor spouse, his parents (persons replacing them), the guardianship body and guardianship or the prosecutor, if the marriage is concluded with a person who has not reached the marriage age, in the absence of permission to conclude a marriage before reaching the face of the marriage age (see Commentary . 13 sk). Lack of relevant permission to conclude a marriage with minors, i.e. Not sufficiently mature and physically, and mentally, there is not only a formal violation of the law. It can be fraught with a life tragedy for someone who is inappropriately marrying.
Guardianship and guardianship (see comment to paragraph 2 of Art. 121 SC) have the right to seek the right to protect the rights and freedoms, the legitimate interests of others in accordance with Art. 46 GPK. And, as specially refers to this in this article, in defense of the legitimate interests of an incapable or minor citizen, what they do when there is all the grounds for recognizing marriage invalid. The same can be said about the prosecutor as the globule of the rights of individual citizens, the interests of the Russian Federation, the subjects of the Russian Federation, municipalities. True, Art. 45 GPC provides the prosecutor the right to apply to the court with a statement (suit) only if a citizen for health, age, incapacity and other valid reasons cannot go to court himself. But this rule, in our opinion, should be interpreted expanding, especially when it comes to fictitious marriages;
2) The spouse, whose rights are violated by the conclusion of marriage, as well as the prosecutor, if the marriage is concluded in the absence of the voluntary consent of one of the spouses for its conclusion: as a result of coercion, deception, delusion or inability due to its condition at the time of registration of marriage, understand the importance of their actions And lead them.
Thus, the list of persons with the right to demand recognition of marriage is invalid, includes spouses whose rights stipulated by family legislation (on the section of jointly related property, receiving funds to its content in the presence of certain conditions, etc.) are violated due to the conclusion of one of Marriage spouses that have no right to exist. His conclusion may affect pension, housing and other rights of the legitimate spouse. The prosecutor, in the absence of the voluntary consent of one of the spouses at the conclusion of marriage, has the right to oppose the violation of the law (see the comment to paragraph 1 of Art. 12 SK). But, for example, the presence of the groom (bride) is in a state of extremely intoxication with alcohol or drugs is the basis for postponement of the registration date of the marriage. And only when it is conclusted, it is possible in the case of the need to raise the question of recognition of a marriage invalid;
3) The spouse that did not know about the presence of the circumstances preventing the conclusion of the marriage, the guardian of the spouse recognized as incapable, the spouse for the previous non-terminated marriage, other persons whose rights were violated by the conclusion of marriage produced in violation of the requirements of Art. 14 SK, as well as guardianship and guardianship and prosecutor. In this case, it is mentioned primarily about the conscientious spouse (see a comment to paragraph 4 of Art. 30 SK). In fact, it means a deceived spouse who wants to create a family, with a "good", as it seemed to him. As for the person recognized as incapable, it does not have a marriage legal capacity, and therefore cannot be married at all. Therefore, his guardian is entitled to ask for the recognition of the concluded marriage invalid. The spouse for the previous marriage can be attributed to the face, whose rights were disturbed by the conclusion of marriage, which should be considered not valid. To other persons whose rights were disturbed by the conclusion of a re-marriage without termination of the previous one, those whose property, housing, retirement and other interests were injured (or may suffer) in the presence of such a marriage. And it's not only in their interests, but also in the fact that there was a violation of a law establishing unconditional bans to conclude a marriage (see a comment on Art. 14 IC). The same considerations explains the right of guardianship and guardianship bodies, the prosecutor for the presentation of a claim for marriage invalidation;
4) the prosecutor, as well as who did not know about the fictitality of marriage, the spouse in the event of a fictitious marriage. The allocation of this basis for granting the right to claim for recognition is invalid by invalid reports. At the same time, undesirable to fictitious marriages are emphasized, which are associated not only with a deception of a bonautionary side, but also with a violation of public interest, including the saving of the municipal housing stock in order to provide citizens in need of housing;
5) The spouse, whose rights are violated, in the presence of the circumstances specified in paragraph 3 of Art. 15 sk. Hiding venereal disease or HIV infection is not a simple deception. It confesses the health of the future spouse who has threatened; A child who has emerged from such a marriage, and ultimately the strength of the family being created (see a comment to paragraph 3 of Art. 15 sk). That is why the deceived husband is entitled to present a lawsuit on the recognition of such a marriage invalid. But this is only his right to make a claim. Automatically such a marriage does not stop its existence. We are talking only about the right of the spouse, which is broken by the deception. Apparently, it is implied by the right to conclude a marriage that is not related to violation of family legislation requirements.
The Plenum of the Supreme Court of the Russian Federation recommends the judge when making a claim for recognition of marriage invalid to find out how the reality of marriage is challenged and whether the plaintiff refers to the category of persons who are entitled to initiate the question of recognition of marriage invalid on this basis. If the applicant does not apply to such persons, the judge refuses him to accept the claim on the basis of paragraph 1 of Part 1 of Art. 134 GPK.
2. A minor, in other words, the child does not fully have a fully necessary maturity, especially psychological. To a certain extent, he defensive, even if after marriage becomes fully capable. That is why the state considers it necessary to attract the custody and guardianship to participate in the case of the feasibility (inexpediency) to satisfy the claim for invalidation of marriage concluded with minors. The entry of guardianship and guardianship bodies in the trial is based on Art. 47 GPK, which involves participating in state bodies, local governments for giving conclusion in the case. Moreover, guardianship and guardianship bodies come into account before making the first instance by the court, both on their own initiative and on the initiative of those involved in the case. In addition, the Court in cases provided for by the Federal Law, and in other necessary cases can attract these bodies to participate in the case (part 2 of Art. 47 GPC). When the marriage is concluded with a person recognized by the court, the law is incapable not just violated (see a comment on Art. 14 IC), but also the need to protect such a person, which has become the object of any kind of abuse, fraud, and even direct fraud.

And the expansion is not subject to expansion. Require the recognition of marriage invalid entitled:

1) A minor spouse, his parents (persons replacing them), the guardianship body and guardianship or the prosecutor, if the marriage is concluded with a person who has not reached the marriage, in the absence of permission to conclude a marriage, before reaching this face of marriage. However, after reaching the juvenile spouse of the age of eighteen years, demanding recognition of marriage is invalid only this spouse;

2) The spouse, whose rights are violated by the conclusion of marriage, as well as the prosecutor, if the marriage is concluded in the absence of the voluntary consent of one of the spouses for its conclusion: as a result of coercion, deception, delusion or inability due to its condition at the time of state registration of marriage's conclusion, to understand the meaning of their actions and guide them;

3) The spouse that did not know the presence of the circumstances that prevent the conclusion of marriage, the guardian of the spouse recognized as incapable, the spouse according to the previous non-worn marriage, other persons whose rights were violated by the conclusion of marriage produced in violation of the requirements of Art. 14 of the RF IC, as well as the guardianship and guardianship body and the prosecutor;

4) the prosecutor, as well as the spouse who did not know about the fictitality of marriage in the event of a fictitious marriage;

5) The spouse, whose rights are violated by the hidden by another spouse, the presence of venereal disease or HIV infection.

When considering the case of invalidation of a marriage concluded with a person who has not reached marriage, as well as with a person recognized by the court incapable, the body of guardianship and guardianship is involved in the case.

Marriage recognized by the court invalid does not generate the rights and obligations of spouses provided for by the RF IC, for the following exceptions: when making a decision on recognition of marriage, the court is entitled to recognize the spouse, whose rights are violated by the conclusion of such a marriage (a conscientious spouse), the right to receive such a marriage Spouse content in accordance with Art. 90, 91 of the RF IQ regarding the section of the property acquired together before the confession of marriage invalid, is entitled to apply the provisions established by Art. 34, 38, 39 of the RF IC, and also recognize the real marriage contract in whole or in part. The conscientious spouse is entitled to demand compensation for the material and moral damage caused by the rules provided for by civil law. The conscientious spouse is entitled when recognizing marriage invalid to preserve the surname chosen by him under state registration of marriage.

The provisions acquired by joint persons whose marriage is recognized as invalid, the provisions of the Civil Code of the Russian Federation on equity property are applied. The marriage contract concluded by spouses is invalid. Recognition of marriage invalid does not affect the rights of children born in such a marriage or for three hundred days from the date of marriage recognition invalid.