A family based on marriage or consanguinity. A family is based on marriage or blood
Family law.
A family is a small group based on marriage or consanguinity, whose members are linked by a common life, mutual assistance, moral and legal responsibility.
Family law is an independent branch of law that regulates personal and derivative property relations arising between people from the fact of marriage, consanguinity, adoption, as well as the adoption of children for upbringing.
Basic principles of family law: voluntariness of marriage relations; monogamy; equality of spouses; state concern for the protection of motherhood, childhood and fatherhood; the priority of family education of children; inadmissibility of involuntary interference in family affairs.
Marriage is a voluntary, equal union of a man and a woman concluded in compliance with certain rules in order to create a family.
In accordance with the legislation of the Russian Federation in the civil registry offices (Civil Registry Office). Consular offices abroad can act as such.
Persons wishing to conclude a marriage submit a written application to the registry office. Moreover, it is necessary to submit an application from each spouse. Registration of marriage takes place upon the expiration of one month from the date of submission of the application (on general grounds) in the presence of the persons entering into marriage. At the same time, at the request of persons and for valid reasons, this period can be changed up or down, but not more than 1 month. But if there are special reasons, the marriage can be concluded on the day of application. Such reasons include pregnancy, the birth of a child, a threat to the life of one of the spouses.
Personal rights of spouses: the right to choose a surname as a common one; choice of profession, occupation and place of residence; the right to resolve joint issues of family life; the right to dissolve the marriage.
Property rights of spouses: divided into two groups - the legal regime of property and the contractual regime of property.
The termination of marriage is established in article 16 of the family code. The grounds for termination of a marriage contract are: death of one of the spouses; the declaration by the court of one of the spouses as deceased; dissolution of marriage at the request of one or both spouses; dissolution of marriage at the request of the guardian of the spouse recognized by the court as legally incompetent. The marriage can be dissolved in court or in the registry office. In the registry office, the marriage is dissolved if there are no property disputes and if there are no adult children. The marriage is terminated from the moment the court decision comes into force.
The emergence of rights and obligations between parents and children arises from the moment the children are born. When children are born, state registration is required. The descent of the child from the mother is established by medical means, and the descent of the child from the father is either judicially or voluntarily. In case of voluntary acknowledgment of paternity, a man who is in a registered marriage with the mother of a newborn child is registered as the father. In addition, the former spouse of the mother may be registered as the father of the child if the child was born within three hundred days from the date of: divorce; invalidation of marriage; of death.
Deprivation of parental rights of both parents or one of the parents. Grounds: guilty, illegal behavior, expressed in the form of action or inaction; evasion of parents from the fulfillment of parental responsibilities, including evasion of payment of alimony; refusal of parents to take their child from a maternity hospital, a medical institution, and so on; abuse by parents of their parental rights; parental abuse of children, including mental and physical abuse of children; illness of parents with chronic alcoholism or drug addiction; the parents committing a deliberate crime against the life and health of their children or their spouse. Only a court can deprive parental rights. A statement of claim for deprivation of parental rights can be sent by one of the parents, the prosecutor or the guardianship and guardianship authority.
Guardianship and guardianship is understood as taking care of children left without parental care for the purpose of their maintenance, upbringing and protection of interests. A guardian is established over a child up to 14 years old, from 14 to 18 years old, guardianship is established.
A foster family is a form of placing orphans on the basis of an agreement on the transfer of a child, or children, for upbringing to a family, between the guardianship and guardianship authorities and foster parents.
7.2. Marriage and family
Marriage is understood as a form of relations between a man and a woman sanctioned and regulated by society, which establishes their rights and obligations in relation to each other and to children. A family is a small group based on marriage or consanguinity, the members of which are linked by a common life, mutual moral responsibility and mutual assistance. The legal basis of the family is the formalization of marriage relations between a man and a woman in accordance with the laws existing in society. The moral and religious foundation of the family rests on the authority of the church.
The family is the primary, elementary unit of society, representing the relationship between husband and wife, parents and children; the family functions as a stable social community. The family has a number of functions:
Reproductive (human production, childbirth, continuation of the human race);
Educational (raising children, their socialization, passing on traditions to them, work skills);
Household (various types of domestic work, its organization, division between family members);
Recreational (providing leisure, organizing recreation);
Psychological protection (mutual respect, marital and parental duty, mutual assistance).
The family is a complex phenomenon that includes not only the natural relationship of the sexes, but also the economic and moral relationships between husband and wife, parents and children. Each person has a need for intimate communication, in which he can express his views and feelings, find support, consolation, advice, interest, empathy, helping in solving social and personal problems. In a marriage based on love, a special atmosphere of frankness, trust, and mutual respect is created in the family.
Voluntariness and equality of relations between a man and a woman should, in principle, be everywhere, especially in the family. Marriage must be neither the result of economic necessity nor the result of parental coercion. Marriage should ideally be based on love.
Love is love, but one of the important factors in family relationships is everyday life. In a broad sense, everyday life refers to the area of non-productive life, the conditions in which a person is outside of production and social activity. Everyday life is not limited to home comfort, not limited to family relationships. Everyday life is a diverse form of people's daily life: how and where they eat, dress, how they rest, what is the daily routine, customs and habits, communication with each other, etc.
Marriage and family relations have changed historically. Consider the main stages of the evolution of marriage and family relations.
Primitive society consisted of clans - a group of people related by blood kinship. In the gens, freedom of sexual intercourse was limited, communication between parents and children, brothers and sisters was not allowed. Arose group marriage, in which the marriage relationship was between genera. All women of one kind were the common wives of all men of another kind, and vice versa. Children belonged to their mother's lineage. In the genus, a man who came from outside was in a certain subordination to women. This state is called matriarchy.
The emergence of private property, the development of cattle breeding, agriculture, in which the main place was occupied by men, led to an increase in the social significance of male labor. The man becomes the head of the family. Private property gave rise to the desire of male owners to multiply the accumulated wealth and pass it on to their children. A monogamous patriarchal family arises, a kind of community headed by the father - the patriarch, along with his children, grandchildren, etc.
Patriarchal family characteristic of the period of decay of the primitive and the emergence of a slave society. Private property monogamy has taken root as a result of the emergence of private property, and by no means as a triumph of mutual love. The conclusion of marriages was a matter that was decided not by those who entered into marriage, but by their parents, and they were concluded according to economic considerations. Usually no one asked about the mutual love of those entering into marriage, their desires were not taken into account if they were at odds with economic calculations.
Marriage in a slave society was only between free citizens. Marital relations between slaves were considered only cohabitation. The slave owner could separate the husband and wife, parents and their children, sell them into different hands, etc.
Under feudalism, within the framework of a monogamous family, the role and authority of the legal wife somewhat increased. This was due to the fact that the head of the family - the feudal lord - was absent for a long time, being in the service of the lord, on military campaigns and the economy fell on the shoulders of his wife. But in a peasant family, the wife was completely subordinate to her husband and her lot was not easy.
Marriage in feudal society became virtually indissoluble. The church has arrogated to itself a monopoly on marriage. Christian morality chained the wife to her husband even more.
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There are many definitions of the term " a family» :
1) this is a group of close relatives living together (this concept is not entirely accurate);
2) it is a small social group connected by marital or kinship relationships (marriage, parenthood, kinship), community of life (living together and running a household), emotional closeness, mutual rights and obligations in relation to each other;
3) it is a socio-cultural system (consisting of an adult and one or more adults or children), bound by obligations to support each other emotionally and physically and united in time, space and economically;
4) it is a small group based on marriage or consanguinity, whose members are linked by a common life, mutual assistance, moral and legal responsibility;
5) this is a group of persons living together in the same residential area, conducting a joint household and being in a relationship of kinship, marriage or guardianship.
The sign "running a joint household" brings the family closer to the term « the household". Household an individual, family or group of people living and eating together is considered, the presence of family relations between them is not necessary. Until October 1917, households were taken into account in population censuses in Russia; after the revolution, the concept of “family” was adopted as the “primary unit of society”. Again, the term “household” was used in Russia only in the 1994 microcensus.
Let's compare the terms “family” and “household” and define what distinguishes them:
1) “household” is a broader concept than “family” at the expense of persons who have a common household with the family, but who are not in kinship relations with family members. Such persons, for example, may be nannies, caregivers, domestic workers, employees, secretaries, home teachers, tutors, employees, if they live with the families of the employers;
2) a person living separately is not considered a family, but the same person and his self-management activities are a household. At the same time, a household can consist of one or more families;
3) the family is characterized by the presence of the continuity of generations.
Using the basic features of the household, you can give another definition of the family. A family is a household (that is, a group of people living together) united by kinship or property and a common budget. A private household that does not include unrelated persons is a family household. Non-family households can consist of one person living separately, relatives or non-relatives who do not form a family. Currently, in most economically developed countries, the categories “household” and “family” coincide due to the insignificant share of non-relatives among households.
The family is a link in a wider system kinship ... It can be defined as:
1) the most universal of all human relationships based on blood ties, marriage or adoption;
2) a set of people connected by common ancestors, adoption or marriage.
Kinship is based on the recognition and acceptance of roles that are not defined in biological but in genealogical terms. Thus, the adoption of a child by parents who are not his blood relatives (mother or father) is also considered kinship. The relationship extends to illegitimate children. Among a number of modern peoples, kinship extends to many hundreds of people. For example, among some Caucasian peoples, everyone who bears the same surname are considered relatives, regardless of whether they know about it or not.
Modern family relationships inherent duality of definitions, or bifurcation. Bifurcation - the type of kinship that binds the family of spouses and their parents, in which female relatives are called differently from male relatives. For example:
• father-in-law - the wife's father;
• father-in-law - the husband's father;
• mother-in-law - the wife's mother;
• mother-in-law - the husband's mother;
• brother-in-law - the wife's brother;
• brother-in-law - husband's brother;
• sister-in-law is the husband's sister;
• sister-in-law - the wife's sister;
• brother-in-law - the husband of the sister-in-law;
• daughter-in-law - the wife of a son;
· Son-in-law - the husband of the daughter, the husband of the sister, the husband of the sister-in-law.
Only a few female and male relatives are named the same:
• nephew - the son of a brother, sister;
• niece - the daughter of a brother, sister;
• cousin - the son of an uncle, aunt;
· Cousin - the daughter of an uncle, aunt.
There are three degrees of kinship: the nearest; cousins; second cousins. Kinship can be counted from the father, from the mother, or from both at the same time. The first is a patrilineal count of kinship, the second is matrilineal, and the third is bilinear. Accordingly, several systems of kinship are distinguished.
Matrilinearity - the system of kinship, which establishes the origin on the maternal, female line, according to which the name, state, status are inherited.
Patrilineal - the system of kinship, which establishes parentage, male lineage, in which the name and state of the father is inherited.
The system of related positions forms kinship structure ... It is complex and is usually depicted as a “family tree”. In theory, a family tree can have up to 200 branches or positions. Each branch of the family tree is called a kinship position or kinship status. They represent cells that can be filled with a different number of individuals. For example, there may be one mother-in-law, but several nephews.
In the structure of kinship, there are:
1) next of kin. There can be only 7 of them (mother, father, brother, sister, spouse, daughter, son);
2) distant relatives.
They are divided into first cousins and second cousins.
Let's compare the terms “family” and “kinship” and define what makes them different. In modern society, the family has separated from the kinship system and isolated from it. Kinship is not a group of people who live together and run a joint household. Relatives are scattered across different families and do not constantly interact with each other.
Marriage – it is a historically changing social form of relations between a man and a woman, through which society regulates and sanctions their sex life and establishes their marital and parental rights and responsibilities. It is a set of formal prescriptions that determine the rights, duties and privileges of spouses in relation to each other, children, and society as a whole. Marriage can also be defined as a contract that is concluded between three parties - a man, a woman and the state.
Let's compare the terms "marriage" and "family" and define what distinguishes them:
1) the concept of "family" is broader than the concept of "marriage":
· Marriage is only a gateway to family life. Marriage is an institution that admits men and women to family life;
· Marriage extends only to conjugal relations, the family embraces both conjugal and parental relations.
2) family and marriage historically did not arise at the same time. By now, they have gone through a long period of transformation, which, according to the four characteristics given in Table 1.1, can be reflected in the form of four stages.
Table 1.1 Transformation of the institutions of family and marriage
|
Individualism and familism |
Fertility (number of children) |
Attitude |
Attitude to divorce |
Nuclearization of families and intergenerational relationships |
|
|
The complete predominance of familism over individualism |
Large families (5 or more children) |
By the will of parents and under the pressure of public opinion condemning celibacy |
Complete inadmissibility of divorce |
The predominant indivisibility of families |
|
|
Partial predominance of familism over individualism |
Average children (3 - 4 children) |
Under the pressure of public opinion, by personal choice, but with parental consent |
Admissibility of divorce only for objective reasons |
Partial nuclearization of families |
|
|
Partial predominance of individualism |
Small children (1 - 2 children) |
By personal choice, without parental consent, but under the pressure of public opinion |
Divorce is a wreck for subjective but verifiable reasons |
Full territorial nuclearization while maintaining a unified social activity |
|
|
Complete predominance of individualism |
Mass voluntary childlessness, not condemned by public opinion |
Freedom of choice between marriage and celibacy, not condemned by public opinion |
Divorce - confirmation at the unmotivated request of one of the spouses |
Full functional nuclearization with the termination of a single social activity |
A family is a small group based on marriage or consanguinity, the members of which are linked by a common life, mutual assistance, moral and legal responsibility Family in the sociological sense
A family is a union of persons connected by marriage and persons descended from them ... in pre-revolutionary family law - an association of persons based on marriage or kinship, interconnected by mutual personal and property rights and obligations, mutual moral and material community and support, birth and upbringing of offspring , common household management G.K. Matveev - representative of Soviet family law
A family is, as a rule, a community of people living together, united by the rights and obligations provided for by family law (A. M. Nechaeva), a certain set (community, group) of people, as a general rule, relatives, based on marriage, kinship and property, living together and maintaining a common household, which forms a natural environment for the well-being of its members, raising children, mutual assistance, procreation (I.P.Sedugin)
Sedugin P.I. believes that there is a need for an official legislative consolidation of the concept of "family", which will have industry-wide significance. legal character
Different views on the concept of a family basically coincide and make it possible to single out its main features: cohabitation of persons; their mutual rights and obligations; the family is a kind of collective; as a rule, the family is based on marriage; its members are related
The protection of the family by the state is enshrined in the legal acts of foreign states "the state recognizes the family as the natural source and uniting foundation of society, as well as a moral institution that has inalienable and inalienable rights ..." (Irish Constitution) "the family is the natural and fundamental unit of society and has the right for protection by society and the state "(Constitutions of the Republics of Armenia, Uzbekistan, Moldova)
The value of the family and its special role is recognized by the world community, which is enshrined in: Universal Declaration of Human Rights of 10 December. 1948 International Covenant on Economic, Social and Cultural Rights of 16 December. 1966 International Covenant on Civil and Political Rights of 16 December. 1966 Dr.
Family law is a system of legal norms governing family relations, that is, personal and property relations arising between citizens from marriage, consanguinity, the adoption of children into a family for upbringing
Different assessments of the legal nature of family relations led to the formation of points of view: Family law is a separate branch of law, different from civil (G. F Shershenevich, O. A. Krasavchikov, V. A. Dozortsev, V. G. Vedernikov, A. M. Nechaeva, others) Family law is a sub-branch of civil law (D.I. Meyer, O.S. Ioffe, M.V. Antokolskaya, etc.)
family relations regulated by law not regulated by law (love, mutual subject of family respect, etc.) rights (Article 2 of the RF IC)
Groups of family legal relations Marital relations (associated with marriage, its invalidation, etc.); Personal non-property and property relations between family members (relations between spouses regarding the choice of occupation, between parents and children regarding upbringing, etc.); Personal non-property and property relations between other relatives and other persons (the right of the grandfather to communicate with the grandson, the duty of the stepson to support the stepfather, etc.); Relationships arising in connection with the determination of the forms and procedure for placing children without parental care into a family (relations of adoption, etc.)
family legal relations (by legal nature) personal property: (non-property): - relations between - choice of surname with the spouses on the occasion of marriage; property; - solution of issues - alimony from motherhood, paternity; sheniya; - communication of a child with parents - - other parents; dr.
Features of family legal relations: Subjects of family legal relations - only citizens; They arise from peculiar legal facts (marriage, kinship, etc.); As a rule, the legal facts that give rise to family legal relationships are states; They are usually lasting; Subjects are, as a rule, close people; Strict individualization and irreplaceability of the participants in these relations; Inalienability of family rights and responsibilities; They are primarily personal and only then property; They have a special personal and confidential character.
The method of family law in terms of the content of the impact on relations is permissible, and in the form of prescriptions it is imperative, that is, it is permissible imperative V.F. Yakovlev
The method of family law is dispositive and situational with the preservation of a significant imperative principle M.V. Antokolskaya
The method of family legal regulation is a permissible-imperative method with the strengthening of permissible principles L. M. Pchelintseva
Similar features of the methods of family law and civil law regulation: Equality of participants in relations that are regulated using these methods; The regulation of relations is carried out by imperative and dispositive norms; The norms of both civil and family law provide for judicial protection of rights
Specific features of the method of family legal regulation: The norms of family law establish the relationship between the rights and obligations of specific subjects who, exercising these rights, must be guided by the interests of the family; Strictly personal character and inalienability of rights belonging to subjects; the possibility of changing these rights in strictly limited cases and within the framework established by law; Protection of violated family rights consists in non-property measures. Property measures are established only in cases specified by law; The peculiarities of the legal regulation of property relations are determined by their inextricable connection with personal relations.
Family law problems: 1. The place of family law in the system of Russian law is not clearly defined; 2. Lack of normative consolidation of quite widespread phenomena in society (for example, actual cohabitation); 3. Lack of accompanying legislation (eg for surrogacy); 4. Problems and gaps in legal regulation: - The right to demand compensation for moral damage in case of violation of family rights is rarely mentioned; - The inability to regulate personal non-property rights by a marriage contract; - After divorce, a woman who has dedicated herself to her family is not entitled to child support unless she is disabled and in need. Other.
5. Art. 15 IC RF provides for: 1. Medical examination of persons entering into marriage, as well as counseling on medico-genetic issues and family planning issues are carried out by institutions of the state and municipal health care system at their place of residence free of charge and only with the consent of the persons entering into marriage. 2. The results of the examination of the person entering into marriage constitute a medical secret and can be communicated to the person with whom he intends to enter into marriage only with the consent of the person who has passed the examination.
At the same time, the Federal Law of November 21, 2011 No. 323-ФЗ "On the Basics of Health Protection of Citizens in the Russian Federation" in Art. 4 names the principles: priority of the patient's interests in the provision of medical care; the priority of protecting the health of children (including future ones); the priority of prevention in the field of health protection.
Art. 51 of this Federal Law "Rights of the family in the field of health care" also provides that every citizen has the right, for medical reasons, to consultations without charging a fee on family planning, the presence of socially significant diseases and diseases that pose a danger to others, on the medical and psychological aspects of family -marriage relations, as well as medical-genetic and other consultations and examinations in medical organizations of the state health care system in order to prevent possible hereditary and congenital diseases in offspring.
Thus, in order to protect the health of those entering into marriage and future offspring, it is advisable to provide for the mandatory provision of certificates of absence of disability, HIV infection, sexually transmitted diseases, etc., when registering a marriage or when submitting an application. suffering from a sexually transmitted disease.
6. In the event of divorce in court before May 1, 1996, the divorce had to be registered with the registry office as well. It was from this moment that the marriage was considered dissolved. If there was no registration, then it was possible to record the child born after the dissolution of the marriage in court to the ex-husband (on the basis of clause 2 of article 48 of the RF IC), since the marriage was still considered registered
7. In accordance with Art. 28 of the Federal Law "On acts of civil status" as the common surname of the spouses, the surname of one of the spouses or, unless otherwise provided by the law of the constituent entity of the Russian Federation, the surname formed by joining the wife's surname to the husband's surname can be recorded. In accordance with the RF IC, each of the spouses, at their discretion, adds the surname of the other spouse to his surname (Article 32). There is a contradiction between the normative legal acts, practitioners act according to Art. 28 FZ.
8. Art. 59 of the RF IC provides: At the joint request of the parents, before the child reaches the age of fourteen, the guardianship and trusteeship body, based on the interests of the child, has the right to allow the child's name to be changed, as well as to change the surname assigned to him to the surname of the other parent. The name and (or) surname of a child who has reached the age of ten can be changed only with his consent.
Form No. 15 Application accepted "" No. registration of the official who accepted the application Record of the act of name change No. from "" d. Signature To the registry office from the last name, first name, patronymic of the person who wants to change the name telephone (home, office) STATEMENT OF CHANGE OF NAME Please change my: surname to: proper first name to: patronymic to:
I give the following information about myself. 1. Surname, first name, patronymic 2. Date of birth "" d. 3. Place of birth 4. Details of the record of the act of birth record of the act of birth No. from "" d. Name of the registry office 5. Citizenship 6. Nationality (the column is filled in the applicant's wish) 7. Marital status (married or not, widow (s), record of divorce deed (s) No. from "", name of the registry office
8. Information about children under the age of majority 1. surname, name, patronymic (surname, name, patronymic, date of birth) "" date of birth record of birth certificate No. from "" d. Name of the registry office 2. surname, first name , patronymic 3. last name, first name, patronymic 9. Reason for changing the last name, first name, patronymic 10. Place of residence 11. Identity document name of the document series # name of the issuing authority "" g. I attach the following documents to the application: _____ " »D. Signature of the person wishing to change the name
The application does not provide for a column for expressing consent by a child who has reached 10 years of age. The legislator does not describe the procedure for obtaining the consent of such a child for a name change.
9. Article 26 of the Investigative Committee of the Russian Federation provides for the restoration of marriage in the event of the appearance of a spouse who has been declared dead or recognized as missing. Marriage can be restored by the civil registry office upon a joint application from the spouses. But the legislator does not provide for a form of application for the restoration of marriage.
10. In accordance with Art. 14 of the RF IC does not allow marriage between persons of whom at least one person is recognized by the court as incompetent due to a mental disorder. But the registry office does not have the authority to require a certificate of health. Even if there is information about the incapacity of citizens, but there is no document about it, the registry office cannot refuse registration.
11. In accordance with Art. 13 IC RF marriageable age is set at eighteen years. If there are valid reasons, local governments at the place of residence of persons wishing to marry may, at the request of these persons, allow persons who have reached the age of sixteen to marry.
This norm was introduced in 1928. Previously, such consent was given by the executive committees. Today, in Belarus, Kazakhstan and other state governments, such consent is given by parents. Local self-government bodies are not endowed with such powers by special legal acts regulating their competence.
12. The Investigative Committee of the Russian Federation does not provide an opportunity to exclude information about the father from the child's birth record and to put a dash in the column “father” A of the Federal Law “On acts of civil status” gives such an opportunity. This is obvious - a contradiction with the legal regulations.
13. The Federal Law "On Acts of Civil Status" Does not provide for the procedure for filing an application with the registry office by persons with physical disabilities, including the participation of a bruiser.
A small group based on marriage or consanguinity, the members of which are connected by a common life, mutual moral responsibility and mutual assistance. Married... Great Soviet Encyclopedia