Do actual marital relations have legal significance? Actual marital relations - law and concepts

Refers to a special type of prerequisites for the emergence of certain legal relations - to actual conditions (along with the actual upbringing of a child, actual divorce, etc.) and is currently subject to legal discrimination more than others. It begins in the terminological field and ends in the space of legal consequences.

The convention of the term “actual marriage” is derived from the normative postulate of paragraph 2 of Art. 10 of the RF IC: in the absence of an act of registration of the corresponding union of a man and a woman, there is no marriage at all. This is a type of extramarital union that is classified based on various criteria. According to subjective characteristics, they are unions of persons of different sexes, a certain age and civil status. Unions of persons of the same sex, of course, do occur. Their public assessment is very changeable, and the modern one has not yet been fully formed. From a publicity point of view, extramarital unions can be anonymous or non-anonymous. According to the characteristics of duration: casual (one-time or short-term) sexual relations, without the desire to continue and consolidate them - temporary and stable - concubinage.

The first form of FB is couple marriage. This premise, of course, is conditional, since it was the only form of individual union of men and women, which further gave birth to a paired family. The second historical form was the Roman concubinate and its world analogues. The third is actual marriage, or cohabitation (obsolete), or de facto matrimony.

Thus, FB is a union of a man and a woman, characterized by stable, long-term cohabitation, running a common household, organizing leisure time, and, if there are children, parental care for them, i.e. maintaining family relationships. This means that the main thing is that persons in relationships characteristic of spouses are identical in a non-legal context.

A different point of view about its essence has been expressed in the literature. So, A.P. Sergeev writes: FB refers to relationships between persons involved in them that meet all the requirements and conditions for marriage, but are not registered in the manner prescribed by law. This is not entirely true. In this union, the conditions may not be met.

In KZoBSO RSFSR 1926 this phenomenon has received legal recognition. This did not lead to a complete identification of the legal consequences of a state in the FB with a registered marriage, however, community of property and the right to alimony arose. A simplified fixation of paternity inevitably followed. The fact of FB in the case of family law conflict was established by the court.

By Decree of the Plenum of the Supreme Court of the USSR dated July 8, 1944. the actual marriage was declared illegal. The basic principle laid down by this Decree - state recognition of only registered marriages - is still fundamental for domestic family law. Arguments: 1. Strengthening the importance of the family in a socialist society, strengthening its stability and strength should have been expressed in the establishment of mandatory participation of the state. authority in the matter of concluding a marriage. 2. FBs also interfered with the state because they caused material damage to the legitimate family: property was dispersed as a result of a court decision caused by the frivolous behavior of the head of the family; proving illegitimate paternity was easy. The position is controversial: 1) the interests of an illegitimate child and his mother are ignored (are they delinquents?); 2) the behavior of the head (!) of a legitimate family is affectionately called “frivolous”; The difficulties of establishing the truth in the case (of which there are many now) are shifted from the “mighty shoulders” of the third power - justice - onto the fragile shoulders of a woman who has given society a new life.

Thus, it is high time to raise a healthy doubt about the fundamental principle of marriage law regarding the recognition of only a registered marriage, although it cannot be said that this has not been done before.

So, from the outside, FB differs from “legal” only by a state act. registration. This does not change the essence of both phenomena. An analogy can be drawn (Civil Code of the Russian Federation): “a citizen engaged in entrepreneurial activity” without appropriate registration “has no right to refer in relation to transactions concluded by him to the fact that he is not an entrepreneur. The court may apply to such transactions the rules of this Code on the obligations associated with the implementation of entrepreneurial activities." FB is an objective reality. The exact number of such unions is impossible to establish - the approximate number is determined during the population census: there are always more married women than men (this gap is mainly made up of actual marriages, in which the woman considers herself to be married, and the man considers himself free).

If we move towards the recognition of the FB phenomenon, then, apparently, the requirements for it should basically correlate with the requirements for a “legal” marriage, except for the sign of registration and the optionality of cohabitation: both of them undermine the very essence of de facto marriage. This means that age, close relationship, adoption relationship, state in another (registered or de facto) marriage, non-anonymity (publicity) of the union are conditions for the court to recognize the fact of FB, if we, in principle, return to such a possibility.

It is somewhat more complicated with the conditions of legal capacity and the facts of concealment of diseases provided for by the rules of the RF IC. As in the case of failure to comply with the age of consent requirement (for a “legal” marriage), the determination of the meaning of these facts should be left to the discretion of the court. And in general, in relation to the legal recognition by the court of the fact of FB, it is logical and fair to use analogies of the rules of the RF IC on reorganization and on the refusal to reorganize an “invalid marriage” and benefits for a bona fide party after the marriage is declared invalid.

Results. FB is a type of family union. If its essence corresponds to the essence of a “legal” marriage, including in terms of the basic conditions for the validity of the latter (of course, not in a strict version - with the right of the court to apply situational discretion), it deserves legal recognition through: 1) establishing the fact of FB in a special proceeding civil process; 2) the extension to him of regulatory family law norms on the legal and contractual regime of property acquired during marriage, an agreement on the provision of material support, relevant housing and social rights; obtaining protective legal opportunities to protect their interests arising from de facto marriage; 4) acquiring the status of “surviving spouse” in inheritance relations.

In this case, society’s respect for the position of de facto spouses who do not want state intervention in their personal lives is by no means lost, since the appeal to the legal mechanism will be built exclusively on a dispositive basis. Family law will only provide the subjects of a given family union with a hypothetical opportunity to take advantage of the benefit and power of their norms - the actual spouses will decide jointly or each of them individually to translate the hypothesis into a disposition.

The legislation of the Russian Federation does not contain the concept of “actual marriage” (Part 2 of Article 1 of the Family Code of the Russian Federation “marriage concluded only in the civil registry office is recognized”). The state of de facto marital relations, the so-called “civil marriage,” has no legal significance in modern Russia. Civil marriage, as a marital state without registration, does not give rise to family legal consequences and, on the one hand, may partly indicate frivolity in marital relations, their amorphous and unreliable nature, irresponsibility to the partner, family and society. On the other hand, the spread of civil marriages indicates, in our opinion, the imperfection of the legal regulation of relations between the family and the state.

For example, unlike some European countries, a marriage contract in Russia can only regulate the property rights and obligations of the spouses. Such a restriction does not allow the relations between spouses to be regulated sufficiently. The joint obligation of spouses to bear family expenses has not been established.

Alternative forms of marriage are not known in our country; For this reason, civil marriages exist as free cohabitation of a man and a woman. However, in order to protect the rights of citizens, it would be necessary to take into account the experience of European countries, for example, the Netherlands, where the joint life of a man and a woman can be organized in such a way that their mutual rights and obligations are regulated, and there is the possibility of their protection.

A civil marriage in Russia cannot be considered a marriage from the point of view of the law, since it does not contain the rights and obligations that an official marriage implies, although from the point of view of relations with each other, their children, in the eyes of acquaintances and relatives, it corresponds to the concepts of “family”, "marriage".

From the point of view of the state, the role of official recognition of a marriage union, carried out through its state registration, is important for streamlining the legal regulation of social support for families, eliminating uncertainty in the field of legal rights and obligations of spouses, their children and other relatives.

An example is the rules governing marriage before reaching the age of marriage (18 years). This possibility is provided for in Art. 13 of the Family Code of the Russian Federation. In addition to the established general rule, according to which, if there are good reasons, local government bodies at the place of residence of persons wishing to get married can allow the registration of a marriage when one of the spouses or both spouses reaches the age of sixteen, it is possible for the laws of the subjects of the Federation to establish norms allowing for the registration of marriages until the age of sixteen as an exception, taking into account special circumstances. Consequently, the lower age limit for spouses is practically limited only by their fertile age, since pregnancy is the reason for early marriage.

Property acquired during a “de facto marriage” is not, by default, joint property, as in an official marriage. When purchasing property (car, apartment, etc.), the owner will be the person in whose name it is registered. Also, bank loans taken during a de facto marriage are considered the obligations of the person to whom they are issued.

Signs of civil (actual) marital relations are living together and maintaining a common household. At the same time, the presence of sexual relations is not mandatory, since civil (actual) marriages may include persons who are not capable of sexual activity due to age or illness. However, participants in a civil marriage must live exactly as husband and wife, namely, their relationship from the behavioral side must be similar to the relationship of spouses in a registered marriage. Otherwise, it would be impossible to distinguish a de facto marriage from an incomplete family, which consists, for example, of a mother and son.

Problems of regulating legal relations between persons living together without state registration of marriage:

• * Establishing the origin of children. The paternity of a child born in a de facto marriage is established by the parents submitting a joint application to the civil registry office, and in the absence of such an application, then in court (clause 3 of Article 48 and Article 49 of the Family Code of the Russian Federation).
• * Property regime. Common-law spouses are deprived of the opportunity to apply the joint ownership regime to the property they have acquired. However, they can agree to extend the regime of common shared ownership to this property (and (or) part of this property) (clause 4 of Article 244 of the Civil Code of the Russian Federation). Living together and running a common household creates a presumption that the cohabitants have the will to establish a regime of common shared ownership of property that was acquired jointly (using common funds) during the period of actual marriage or constitutes the subject of their common household (for example, a summer cottage or household furnishings ). If the property was not acquired in connection with cohabitation (for example, in the process of conducting business or creative activity by one of the cohabitants), then in order to recognize it as common property, a clearly expressed will of the parties to establish relations of common property is necessary.

The Plenum of the Supreme Court of the Russian Federation clarified that a dispute regarding the division of property of persons living (living) a family life without registering a marriage should be resolved not according to the rules of the Family Code of the Russian Federation, but according to the norms of the Civil Code of the Russian Federation on common property, unless a different regime is established between them this property (agreements, contracts concluded between these persons). At the same time, when determining the share in the disputed property, the degree of participation of these persons, de facto spouses, through means and personal labor in the acquisition (creation) of property must be taken into account.

Of course, persons in a civil marriage have the right to voluntarily resolve all disagreements that arise between them regarding the division of property acquired during the period of cohabitation. If an agreement is not reached, disputes regarding the common property of persons who were not in a registered marriage are resolved on the basis of the norms of civil legislation on shared ownership.

As judicial practice shows, such disputes (about recognition of property rights, about reclaiming property from someone else’s illegal possession, etc.) are quite complex from the point of view of proving ownership of this or that property.

• * Alimony obligations. A civil marriage (non-marital cohabitation) cannot create an obligation to pay alimony. At the same time, due to the principle of freedom of contract, common-law spouses can enter into an agreement establishing an obligation to provide maintenance to one of the cohabitants by the other cohabitant (clause 2 of Article 421 of the Civil Code of the Russian Federation). In this case, the common-law spouses themselves stipulate the notarized or simple written form of this agreement, as well as the terms of the agreement, including the possibility of indexing the amount of maintenance, the method and procedure for paying maintenance, etc.
• * Inheritance by law. Unlike the legal spouse, the actual spouse is not a first-degree heir (clause 1 of Article 1142 of the Civil Code of the Russian Federation). He can be recognized as an heir by law only as a disabled dependent of the testator, i.e. if by the day the inheritance was opened he was disabled and for at least a year before the death of the testator he was dependent on the testator and lived with him (clause 2 of Article 1148 of the Civil Code of the Russian Federation).

family law matrimonial property

The phenomenon of actual marriage can be considered from a variety of points of view: as a type of actual state (1), as the first historical form of an individual union of a man and a woman (2), as a prerequisite for a number of family legal relations - in those periods of legal history when this phenomenon was given legal significance (3), as a special type of marital or “quasi-marital” union, or the most stable form of extramarital union (4), as the actual content of a marriage-contract, marriage-legal relationship (5). To one degree or another, all five “entities” deserve our research attention.

Factual states as a special type of legal facts in the mechanism of family law regulation have always played, compared with other branches of law, a very significant role. In fact, gender and age, financial and marital status of a person, close relationship, matrimony (married state), parenthood, legal capacity (incapacity), incapacity and neediness, sufficiency of funds, state of pregnancy, inappropriate behavior in marriage, cohabitation and management common household, long-term raising of a child, stable termination of marital relations, etc. and so on. - all these characteristics of a person and/or situation relate to facts-states that, in a certain legal position, have legal significance for the emergence, change, termination of a particular family legal relationship or the significance of an evidentiary fact in resolving a particular family matter.

From a theoretical point of view, “legal states are complex legal facts characterized by relative stability and a long period of existence, during which they can repeatedly (in combination with other facts) cause the onset of legal consequences.” S. S. Alekseev, V. B. Isakov, S. I. Reutov, V. I. Danilin and other authors are not inclined to single out these phenomena as a third independent type of legal facts along with actions and events. A state is one of the characteristics of any legal fact, an element of their classification “by duration of existence” or “nature of action” - in the context of the pair “facts of a single action - facts of a long-term action (state)”. V. B. Isakov emphasizes three features of such states: they reflect the ongoing, stable characteristics of social relations and their subjects; have a strong “composition-forming effect”, during their existence participating in the emergence, change and termination of many legal relations, thereby actively forming the individual legal status of a person; a type of fact-state is a state in legal relations.

In the family law space, a very special place in this group is occupied by such factual states as actual upbringing, actual divorce and actual marriage. Their influence on the fate of a particular family legal relationship is very unusual.

Thus, actual upbringing in the RF IC is not listed among the forms of child care (Section VI). We learn about its legal significance only indirectly - primarily from the rules on the collection of alimony: the rule of Art. 96 of the RF IC established the alimony obligation of the actual pupil in relation to his former actual educator (previously, there were various options for alimony obligations in connection with actual upbringing in the KZoBSO 1926 - art. 42 and in the RSFSR KoBS 1969 - art. 85 - 86) . Moreover, the period of actual upbringing (at least five years) is of additional importance.

Peculiar varieties of actual upbringing are the relationship between a stepfather (stepmother) and a stepson (stepdaughter), the legal recognition of which also has only an indirect nature - through future alimony obligations (Articles 80, 81 of the RF IC).

Actual upbringing inevitably arises in a situation of unilateral adoption in marriage: a spouse who does not want to become a subject of relations for the adoption of a child by another spouse, thereby, as it were, “subscribes” to the actual upbringing... In disputes about children, the mother actually “delegates” the upbringing of the child to other persons (for example, close relatives) may have evidentiary value when deciding the issue of transferring a child from mother to father at the suit of the latter. The participation of the alleged father in raising the child is also considered by the court as positive indirect evidence in the case of establishing illegitimate paternity.

The second special type of state facts is actual divorce, or the actual termination of the marital relationship. It is important for three types of incidents: 1) as a basis for a claim or agreement to determine the place of residence of a child during the separation of spouses who have actually lost their marital community; 2) as a basis for divorce; 3) as a prerequisite for the court to recognize the property acquired by each spouse “during the period of their separation upon termination of family relations as the property of each of them” (Part 4 of Article 38 of the RF IC).

The latest design has a very original history. Norms Art. 20 and 22 of the 1969 Code of Laws of the RSFSR established a categorical imperative for community of property in marriage. However, the Plenum of the Supreme Court of the USSR in part 3, paragraph 15 of Resolution No. 9 of November 28, 1980 “On the practice of courts in applying divorce cases” allowed the courts to recognize property acquired during the period of actual divorce as their separate property, thus creating a judicial a precedent that does not interpret, but directly denies the position of family law. And only in 1996 did the RF IC give this precedent legal significance.

The reader may question the advisability of such a deviation from the topic of research. It is, however, done for two reasons. Firstly, to create the prerequisites for characterizing actual marriage as a type of actual state. Secondly, to emphasize the peculiar discrimination in the current law of de facto marriage as a condition in comparison with other conditions. Indeed, first judicial precedent, and then legal recognition of the significance of an actual divorce is one of the arguments for the normative (at least partial) recognition of an actual (as well as “unregistered”, like an actual divorce) marriage, because in both cases the criteria for social assessment of the phenomenon and In constructing an appropriate legal response, the presence (absence) of family relationships serves as a priority object of protection and defense (the same is true in cases of actual upbringing). Nevertheless, the modern legislator indirectly recognizes the legal significance of actual upbringing, recognizes the direct legal significance of the actual breakdown of marriage and denies the legal significance of the normally existing, but “undocumented”, family cohabitation of a man and a woman. This is obvious discrimination on both a formal and substantive level. Let us dwell on the historical and substantive characteristics of this phenomenon.

First of all, it is necessary to emphasize the variety of terms that denoted or denote actual marriage: paired marriage, concubinage, secret marriage, cohabitation, de facto marriage, civil marriage, extramarital union. At the same time, differences in the “terminological field” are accompanied by both identity and differences in the space of legal phenomena.

Thus, the convention of the most common term - “actual marriage” - is also derived from the normative postulate of paragraph 2 of Art. 10 of the RF IC: in the absence of an act of registration of the corresponding union of a man and a woman, there is no marriage at all. The phenomenon of “actual marriage” is a type of extramarital union. In a certain sense, these actual unions “create,” as the Yugoslav scholar M. Bosanac notes, “the law itself by fixing the boundaries of marriage.” The history of the issue shows that these boundaries are very fluid and often blurred. However, it is possible to determine something absolutely common that distinguishes “actual marriage” (or “cohabitation of a man and a woman,” or “actual marriage”) from other extramarital unions.

Extramarital unions are classified based on various criteria. According to subjective characteristics, they are unions of persons of different sexes, a certain age and civil status. Unions of persons of the same sex, of course, do occur. As we noted earlier, their public assessment is very changeable, and the modern one has not yet been fully formed. As a certain sociological reality, they can be considered as a special type of extramarital unions, but society, at least Russian society, does not yet recognize them as a matrimonial norm. From a publicity point of view, extramarital unions can be anonymous or non-anonymous. According to the characteristics of duration, casual (one-time or short-term) sexual relationships are distinguished, without the desire to continue and consolidate them - temporary and stable - concubinage. The last term is used in several senses, in the historical sense it is a “quasi-marriage” according to Roman law (permanent (and not casual) cohabitation of a man and a woman permitted by law, which, however, does not meet the requirements of a legal marriage), in a narrowly classifying one (according to M. Bosanaz, long-term stable union) and in a “globally” classifying one (concubinage is an actual matrimony, an actual marriage).

“He who enters into marriage does not create marriage, does not invent it,” wrote K. Marx, “he creates and invents it just as little as a swimmer does the nature and laws of water and gravity. Marriage therefore cannot be subject to the arbitrariness of the person entering into marriage, but, on the contrary, the arbitrariness of the person entering into marriage must be subject to the essence of marriage.” Its essence, regardless of the act of registration and the set of restrictions and prohibitions (they are very changeable), lies in the creation of a family community by a man and a woman (as a rule, with intimate relationships and common children, but without the obligation of such not only legally, but also socially) -biologically - due to age, childlessness, sexopathology, etc.).

The first form of actual marriage was couple marriage. This premise, of course, is conditional, since it was the only form of individual union of a man and a woman, which further gave birth to a paired family (as opposed to the family union of a brother, sister and sister’s children) 1 See, for example, Semenov Yu. I. Origin of marriage and family M., 1974 P. 266-279.. Since the paired marriage did not have a legal form, it seemed to show us an actual marriage “in its pure form” - this is the convention of its specific role. Modern concubinage (actual marriage), notes M. Bosanac, could be considered as “a reflexive remnant of a paired marriage.”

Paired marriage and the paired family based on it, as we have already noted, coexisted for a long time with the rodya (a variant of the actual family not based on marriage). They arose in competition with the maternal family, which successfully resisted them. Excess product, the replacement of dismountable consumer relations with relations of “gift exchange” and sharing, writes Yu. I. Semenov, built two levels of distribution. The first is the division of food, clothing and other goods between adult members of the team, the second is their transfer of part of their share to children. The author calls them feeding or dependency relationships. The first natural breadwinner was the mother. She was the center of the minimum dependent group. At least one adult man could join her, and society was objectively interested in this.

At the same time, adult women were connected, on the one hand, by relations of equal distribution with men of their clan (where there was an agamic prohibition - the prohibition of sexual contacts), and with men of the allied clan - by relations of gift exchange. This created two opportunities for men: to join as breadwinners one of the small dependent groups of their clan or allied clan. At first, the first choice was more realistic and familiar: the members of the clan formed a unity, but the closest relationships were between the children of the same mother, i.e. brothers and sisters, so men, growing up, entered into relationships of inadequate redistribution of benefits with their mother, younger brothers and sisters, and then with their nephews.

With the accumulation of wealth in the hands of individual members of society, a tendency arose to transform the small dependent group into a unit of management and accumulation. As a result, competition between the clan and the paired family intensified. According to Yu. I. Semenov, the main thing was not who a man should support, but who he should transfer his savings to. “The family was a group,” notes Yu. I. Semenov, “more adapted to becoming a unit of separate property,” since it was not part of the clan. Inheritance within the clan (and clan) was replaced by family inheritance. (This, as a rule, presupposed and required the replacement of the maternal family with the paternal one. However, the problems of matriarchy and patriarchy are not the subject of our study.)

But even then it was still impossible to state the emergence of patriarchal relations and patriarchal marriage (family), since in the paired family and the paired marriage based on it, men and women equally took part in social production, were breadwinners in economic terms (and therefore, and others) - equal partners. Sometimes equality was violated in favor of men or in favor of women; this did not matter fundamentally. Paired marriage was characterized by freedom of its conclusion and freedom of termination.

As for the deepening division between public and “domestic” labor, initially the latter was not always a woman’s occupation: in some cases, fishing, building huts, etc. were the exclusive property of women, and gathering, cooking, making clothes, etc. - the property of men...

The fundamental basis for the change in the position of the sexes was, note V.P. Alekseev and A.I. Pershits, a new order of inter-sexual division of labor: arable farming was the sphere of mainly men, cattle breeding - almost exclusively of men, the same can be stated about metallurgy and metalworking, and later - about pottery and weaving. The importance of male labor invariably increased due to new production techniques (for example, even in manual farming: forest clearing, irrigation, soil drainage, etc.) and deepening specialization 2 See: Alekseev V.P., Pershits A.I. History of primitive society. M., 1999. pp. 263-264..

During the transition from a pre-class society to a class society, private property arises and the law of property distribution begins to operate. Labor in itself ceases to give the right to receive a share of the social product.

In any even relatively mature early class society, Yu. I. Semenov (and many other ethnographers) continues after F. Engels, the role of owners... is, as a rule, men, therefore it is they who are included in the system of primary distribution relations and become dependents not only children, but also women. A woman becomes a dependent, regardless of her participation in labor. As for domestic work, the author notes, it not only ceased to be part of the social, but also opposed it, since it took place within the framework of family-economic, rather than socio-economic relations.

The economic dependence of women on men becomes the reason for the dominance of the latter in the family and society; paired marriages and families turn into monogamous, or patriarchal. The era of the first example of de facto marriage is over.

The second historical form was the Roman marriage sine manu, which, as we noted earlier, appeared as a “counterweight” to the marriage cum manu and was built on the free agreement of husband and wife and their equality in the family union. Having arisen from simple marital cohabitation to avoid manus (the power of the husband), this marriage was concluded, noted I. A. Pokrovsky, through a simple marriage agreement, followed by the bringing of the wife to the husband’s house, accompanied, of course, by various household rituals, which, however, had no legal significance. “The complete informality of marriage, given the formality of a number of other, less important legal acts,” the author emphasized, “seems, of course, strange, but this strangeness is explained precisely by the historical origin of sine manu marriage. This informality remained in Roman law until the very end; It was only in Byzantium that the need for church weddings was established.”

“Marriage in the Republican era,” writes Gennaro Franciosi, “was an exclusively factual relationship, i.e. nothing more than a long-term union between a man and a woman (pair marriage in ethnography), with which the state gradually begins to associate certain consequences. Roman jurists did not define marriage, the author continues, just as the law itself did not regulate it: they accepted its “social concept, transforming it slowly and indirectly into a legal relation” and accepting it as “social consciousness” evaluates it.

Along with marriage sine write, there was also a classic historical form of actual marriage - concubinage. It was considered by Roman jurists as a permanent union of a man and a woman without mutual intention of marriage 3 See, for example. Garrido M. X. G. Roman private law, incidents, claims, institutions M., 2005, P. 271.. “In the Roman legal order, concubinage,” emphasize I. Puhan and M. Polenak-Akimovskaya, “was not a purely factual relationship, indifferent to the law or even illegal, but a form of union, of course inferior to marriage, but recognized by law.” 4 Puhan I., Polenak-Akimovskaya M. Roman law. M., 2000. P. 142.. Concubinage took place whenever, the authors note, a union could not claim the level of marriage due to the absence of any of the necessary conditions or for reasons of a social nature (for example, due to the unprestigious nature of the relationship between a senator and a freedwoman); in order to avoid misunderstandings, anyone who wanted to have a woman (“freeborn and honest”) as a simple and permanent concubine had to declare this in the presence of witnesses. The marriage legislation of Augustus introduced certain requirements for the concubinage, in the absence of which this union became indifferent to the law, and in some cases even illegal: the prohibition of kinship, the state of marriage or other concubine, the long-term and stability of cohabitation. Children born in concubinage were called liberi naturales ("natural") and therefore, although not legally bound to the father, were still in a better position compared to children of vulgo guaesiti (born out of wedlock) - through legitimation they could rise to the level of children born in marriage. The concubine, unlike the wife, did not enjoy the dignity of her husband's position, and she was not part of his family.

M. Kaiser and R. Knutel note: concubinage is a long-term community of life and sexual cohabitation between a man and a woman, not recognized as marriage. It is recognized within certain limits and acquires practical significance in the era of the Principate in cases where marriage is impossible (in particular, not only with a woman of significantly lower social status than her partner, it is also designed for situations where marriage is prohibited for certain officials, officers and soldier). In postclassical times, the view gained recognition that the community of life between a man and a woman, which satisfies Christian requirements for marriage, can be recognized by the state even if the prerequisites required by the state are not met. Such a concubinage was considered a “marriage of lesser right.” But in contrast to the classical image, it was associated with strict preconditions: it was not allowed along with marriage, it presupposed a long-term relationship with only one woman, with whom (in addition to independent obstacles) marriage would be possible. The legalization (legitimation) of children born in this concubinate was not excluded. A man could give or leave a certain share of his property in his will to the concubina and her children.

A union that was close in essence was contubernium - a long-term and habitual relationship between a slave and a slave, between a free man and a slave, or between a slave and a freed woman. It was also not completely ignored by law (for example, kinship arising from a given union was recognized as an obstacle to marriage).

Concubinate (natural, wild marriage) and contubernium were perceived, according to the characterization of Cesare Sanfilipo, quite tolerantly - in contrast to adulterium (sexual intercourse between persons, at least one of whom was married), incest (relationships between relatives), which were prohibited and entailed punishment, as well as casual or temporary relationships with slaves, female slaves, harlots and other women of questionable behavior, for which, as a rule, there was no punishment.

The tradition of tying a marriage in compliance with a certain procedure for its registration dates back to Byzantine law: at the end of the 9th century. Emperor Leo the Wise issued a law requiring marriage through a church wedding - only this could entail legal consequences (only two centuries later the requirement extended to the lower strata of society - slaves and serfs).

In Rus', as we already noted in Chapter I, church weddings, introduced in the 9th century, were practiced for a long time only in the upper strata of society - the rest of the population adhered to customs and rituals (public recognition was more important than official, state recognition). In this sense, we can also talk about certain forms of actual marriage. Moreover, a number of modern researchers identify de facto unions as an independent type of marriage in ancient and medieval Rus', although for representatives of the church it is reprehensible: sexual relationships lasting a long time, without public registration, with the appearance of common children, where “mutual obligations of the spouses were absent, if not absent.” , then were significantly limited" 5 See, Ospennikov Yu.V. On the types of marriage ties in Russian law of the 12th-15th centuries. P. 214..

In Western Christian states, the Roman Catholic Church for a long time did not consider it obligatory to observe any special procedures for marriage, although it recommended that Catholics receive a church blessing. (According to the teachings of the Roman Church, the sacrament of marriage lies not in the church action, but in the very essence of the marital union.) So-called secret marriages were common. (Before the Blois Ordinance of Henry III in 1579, wrote N. S. Suvorov, marriage received legal force from the expression of mutual consent, even if secret...)

Church views (general Catholic and French), the formation of many religious movements and sects and the philosophy of “natural law,” emphasized N. S. Suvorov, was generated civil marriage, i.e. secular marriage.

Civil marriage, in the strict sense of the term, is not a type of actual marriage, since it presupposed and presupposes its state registration - instead of or together with a wedding, the latter - on a voluntary basis. (“Civil” marriages of Russian commoners of the 19th century in this sense were “actual marriages”, “cohabitation”, “non-wedding marriages” - in a country where a church wedding was declared the only and obligatory form of Orthodox marriage.)

A unique example of an actual marriage was the union of Jean-Jacques Rousseau with Madame Renoux. Rousseau's famous marriage, which professed the idea of ​​marriage as a type of social contract, was “concluded” 25 years after its actual beginning. The book “Civil Marriage” by N. S. Suvorov gives a description of this event. The marriage ceremony, according to Rousseau, was performed “in all the simplicity and in all the truth of nature”: in one of the rooms of his apartment, in the presence of two witnesses, holding Mrs. Rena’s hand, Rousseau made a speech about the friendship that united them for 25 years, and about their decision to make this union indissoluble; then he asked his partner; whether she shared his feelings, and, having received a positive answer, made a speech about the duties of marriage. (Exactly one year after this ceremony, Madame Rousseau left her husband. The philosopher protested, demanding that mutual consent to divorce be respected, that is, the same agreement that was used for the marriage. But Rousseau’s protest remained fruitless.)

A special place is occupied by the marriages of schismatics, which can only be classified as factual only conditionally (with the exception of a certain number of them). “In favor of a church wedding,” noted N. S. Suvorov, “as not only the best and most worthy form of marriage, but also as completely corresponding to the Russian national consciousness and Russian legal life,” evidenced by the results of the searches of Russian religious dissidents, who, in contrast Westerners, who quickly came to terms with the civil form of marriage, “retained within themselves an irresistible desire for a religious form of marriage.” Thus, schismatics obtained “fugitive priests” for weddings, who performed “old rituals” over the newlyweds and according to “old books.” Some of the schismatics, when “the pre-Nikon priesthood was cut short,” admitted that the priesthood no longer exists on earth, since the true church perished, and therefore marriage cannot exist. However, members of the so-called sects of the rationalist trend, according to N. S. Suvorov, were in unsanctified unions with each other - moreover, they did not insist on the introduction of a secular (civil) form of their consolidation. The author emphasized that according to the Russian concepts of that time, there could not be a legal civil marriage; the latter was understood, in essence, as “etiquette to cover up what it would not always be convenient to call by its own name.”

However, both Russian legislation and Russian society had to become acquainted with civil marriage - in order to decide the marriage fate of the schismatics. The first step was the Decree of Peter the Great of March 24, 1719, which, for reasons of benefit for the state treasury, constantly in need of resources, ordered “from schismatics who marry secretly outside the church, without coronal memorials, to impose a special tax, namely rubles three per person, male and female, equally on both sides, and more for the rich.” Thus, after paying the fee, the state seemed to recognize them as legal husband and wife. However, later the leniency was canceled: the marriages of schismatics were not subject to weddings (priests who violated this prohibition were severely punished), and if schismatics cohabited without a wedding, they could be “requested for search by the terrible Preobrazhensky order.” The persecution of such “unmarried marriages” stopped only under Catherine II. On April 19, 1874, a law on the marriage of schismatics was adopted: their marriage acquired the force and consequences of the law through an entry in the registry register, which was maintained by police officials. It was, therefore, a kind of “optional civil marriage” - by no means of the European type, designed, however, to give unions that were actually from the point of view of civil and church legislation some state recognition forced by circumstances. The legislator, of course, understood that the matter would not be limited to an entry in the police book, but, allowing various kinds of rituals, he did not attach legal significance to them.

Modern forms of actual marriages, cohabitations, partnerships. actual marriages are quite diverse - both essentially and terminologically. Thus, from the entire range of options, M. Bosanac prefers to designate stable unions of a man and a woman as concubinage, of course, in a broad (non-Roman) sense. Concubinage, according to the author, is characterized by informal emergence, strong relationships between partners, devoid of the need to be hypocritical and aware of the ease of an actual break that does not require formalities. He also defines it as a long-term extramarital union of a man and a woman who do not intend to formally consolidate their family relationship.

“Actual marriage relations,” note V.I. Danilin and S.I. Reutov, “are more or less long-term and stable relationships between a man and a woman who live in one family and run a common household.” The actual marriage, the authors continue, “is not a civil transaction (which indirectly follows from the current law), but a union of a predominantly personal nature, very close to a registered marriage.” (By the way, the authors propose to use the term “actual marriage”. In our opinion, this terminological version is as arbitrary as “actual marriage”: the rights of matrimony flow from the marriage union.)

Based on judicial studies of actual marriage as the main and most common evidentiary fact in civil proceedings in cases of adoption of illegitimate paternity (Article 48 of the Code of Laws of the RSFSR; the practice of applying Articles 48 and Article 49 of the RF IC), it is possible to make some additions about the essence of this illegitimate paternity union. So, the rule of Part 2 of Art. 48 Code of Law of the RSFSR was a kind of indirect recognition of the partial legal significance of an actual marriage: proof of cohabitation and running a common household by the mother (plaintiff) and the putative father (defendant) before the birth of the child in the absence of circumstances excluding the fact of origin from this person (business trip, results of gynecological, urological examination, etc.), led to the satisfaction of the corresponding claim. In essence, it was a legal presumption of paternity in a de facto marriage. Cohabitation was confirmed (and is currently being confirmed, since factual presumptions, like normative ones, are the result of human experience, which does not depend on the inclusion or non-inclusion of certain phrases in the text of the rule of law) by the presence of circumstances characteristic of family relationships: living in one living space, shared meals, mutual care for each other, joint leisure, etc. Maintaining a general household is interpreted as satisfying everyday household needs by purchasing food, cooking, cleaning the premises, washing clothes, purchasing household items and furnishings, personal items, etc.

Thus, actual marriage is a union of a man and a woman, characterized by stable, long-term cohabitation, running a common household, organizing leisure time, and, if there are children, parental care for them, i.e. maintaining family relationships. This means that the main thing is that persons in relationships characteristic of spouses are identical in a non-legal context.

A different point of view about its essence has been expressed in the literature. Thus, M.V. Krotov writes: “An actual marriage is a relationship between the persons involved that meets all the requirements and conditions for marriage, but is not registered in the manner prescribed by law.” This is not entirely true. In this union, conditions regarding age, legal capacity, monogamy (a person may, albeit formally, be in a registered marriage), prohibitions due to the status of close kinship or adoption relationships may not be observed. Since actual marriage is indifferent to family law, the first one can respond in kind. It’s a different matter if it had a family legal significance - then the court, establishing this legal fact, would evaluate the essence of the relationship in connection with the requirements for a “legal” marriage.

The history of Soviet and Russian family law on the issue of interaction between de facto marriage and the law is very contradictory. As is known, in the 1926 Code of the Russian Federation this phenomenon received legal recognition. The discussion of the draft code, especially in the designated part, was very heated. Thus, G. M. Sverdlov noted that the post-war devastation and difficulties of the NEP put many women in a dependent position on the economically stronger party; in the kulak and nepman environment, “term marriages” or “seasonal marriages”, a farm laborer with an owner, became very widespread - with the aim of exploiting her labor in combination with other pleasures... This required legal protection of actual marriage relations.

Supporters of maintaining state registration of marriage believed that it: 1) suppresses cases of creating unions that do not meet legal conditions (on age, free will, prohibition of marriage with close kinship, etc.); 2) is important for accounting for population movements; 3) resists frivolous relationships; 4) excludes support for polygamy; 5) in the village, where the influence of the church is still quite strong, it continues to play a serious role in weakening this influence.

Supporters of a different position also found arguments of both objective and subjective nature. Firstly, there were already many actual marriages at that time (despite the lack of their protection) - about one hundred thousand (1923), where the weaker party, most often the woman, had no rights. Secondly, one cannot attribute fundamental legal-forming significance to the formal moment as opposed to the essence of the relationship. “Let me, first of all,” wrote N.V. Krylenko, “discard the criticism of Demyan Bedny and his proposal to consider every couple with Tverskaya as actually married.”... A casual relationship (even with a child) is not an actual marriage 6 Krylenko N.V. Project on marriage and family // Collection of articles and materials on marriage and family law / ed. DI. Kursky M., 1926, S. 65.. If they refused, and Ya. N. Brandenburgsky supported this position, to divide children into marital and illegitimate children, then isn’t it time to abandon the division of marriages into legal and illegal? “You cannot,” the author continued, “approach the matter like a priest, arguing that if a woman knows that the Soviet government provides protection only for a registered marriage, she will not succumb to any seduction and will demand from the man at all costs advance registration". Registration does not lead to longer marriages and does not effectively combat promiscuity 7 Brandenburgsky Ya.I. Marriage and its legal consequences // Collection of articles and materials on marriage family law / ed. DI. Kursky. M., 1926, p. 37..

D.I. Kursky, who especially actively defended the innovations of the project, wrote that it was necessary to protect women’s rights, especially in short-term, “seasonal” unions; in conditions of unemployment, alimony from her ex-husband for a year or six months will allow her to at least partially “get back on her feet” and find a job. Speculation of women on alimony (the phenomenon of “alimentary women”) is an inflated trend of individual facts 8 See, Kursky D.N. Selected articles and speeches. M., 1958. S. 302-303.. The previous code, the author continued in another report, was adopted when church marriage was inseparably dominant and there was no other way to formalize a marriage - hence such a decisive and strict requirement for registration (although even then there were voices in support of actual marriage). Registration, however, should be given the meaning that it should have - “the meaning of a technical means in disputes about rights arising from marriage.” Previously, actual marriages were, as it were, dubious in the eyes of society and often one of the actual spouses - they will cease to be dubious “if the matter is raised during a dispute in court and a series of evidence establishes that this marital relationship was of a long-term nature, that it actually admitted outside...” “The time will come (I am deeply convinced of this),” the author concluded, “when we will equate registration in all respects with actual marriage or destroy it completely.” We can talk about the upcoming replacement of registered marriage with actual marriage, since the first represents an exclusively free union, without “legal shackles” and, therefore, is a prototype of a communist-type relationship between a man and a woman.

The statements of the Supreme Court of the RSFSR were contradictory in nature on this issue. Thus, it was initially recognized that the lack of registration of the termination of a previous registered marriage should not serve as an obstacle to the recognition of actual marital relations with another person with all the ensuing legal consequences, since the formal existence of an undissolved marriage does not matter - persons could formalize their actual relations in any time, dissolving the first (“legal”) marriage. Ten years later (in 1945), other rulings and decisions of this court indicated that the courts do not have the right to allow the simultaneous existence of two marriages (registered and actual) and, accordingly, recognize the legal significance of the actual union - the first marriage must first be dissolved.

Reflecting on this arch-phenomenon of our family legal history (since the times of the concubinage of Ancient Rome), O. A. Khazova comes to several conclusions. On the one hand, the goal of protecting women's property interests, which was especially relevant at that time, was achieved to a certain extent. On the other hand, the practice led to “distortions” and gender asymmetry: the ease of women proving their actual marriage in the courts made “men completely defenseless against unscrupulous partners who laid claim to both the living space and part of the property of their “husband,” often demanding that paternity be established in regarding children with whom these men had nothing to do. Over time, in practice, this led to the fact that men began to generally be wary of women and afraid to enter into any kind of intimate relationship with them.”

It is difficult to agree with such an assessment and conclusions. Firstly, most of the arguments in defense of the novelty of the 1926 Code are quite convincing. Secondly, legal permission or legal prohibition, as is known, does not remove side effects, never achieves the ideal (the law is “pants” from which the boy grows out every time after a few months, as well as an opportunity that scammers can often take advantage of ). Thirdly, there have always been errors (“distortions”) in judicial practice, including in cases of establishing illegitimate paternity, so why not abandon the procedure altogether?..

As we noted earlier, by the Decree of the Presidium of the Supreme Soviet of the USSR of July 8, 1944, de facto marriage as a legal fact and relationship partially regulated by family law was disavowed and declared illegal. And if in regulating other relations with the family element the legislator rejected the principles of the Decree (in 1965, 1968 - 1969), it remained “retrograde” in relation to the institution in question.

Conservative views on this matter are still quite common. For example, L.P. Korotkova and A.P. Vikhrov believe that a family is initially formed and exists only within the framework of the law... Cohabitation as a marital state without registration does not give rise to family legal consequences and indicates frivolity in marital relations, about their amorphousness and unreliability, about their irresponsibility to family and society, and ultimately about their rejection of the family recognized by law and the state 9 See, Korotkova L.P., Vikhrov A.P. Family - only within the framework of the law // Jurisprudence 1994 No. 5-6, P. 160..

A number of well-known civil law experts and family scientists do not comment on this situation, limiting themselves to statements of the provisions of the 1926 Code of Laws and Laws and the corresponding trends in the European family law doctrine.

Some of the modern authors (early 21st century) generally avoid the problem in silence. Others, without denying its prospects, believe that at present the “ground” for decisive steps is not yet ready and, perhaps, will not be ready soon; still others insist on the option of a very limited recognition. For example, S.V. Sivokhina, A.V. Slepakova, it seems appropriate to equate to spouses in legal consequences only those participants in de facto marital relations who were deprived of the opportunity to enter into a legal marriage due to the death of one of the spouses as a result of an armed conflict, the onset of incapacity of one of de facto spouses and similar emergency circumstances, subject to a long period of cohabitation, satisfaction of the requirements of heterogamy and the requirements of Art. 14 of the RF IC on obstacles to marriage 10 Slepakova A.V. Actual marital relations and property rights // Legislation. 2001. No. 10. P. 15..

Meanwhile, the fundamental principle of Russian (until 1991 - Soviet) marriage law that only a union that has undergone state registration is recognized as a marriage is being seriously questioned.

So, already in the early 70s. XX century the idea of ​​the admissibility of returning family law protection to de facto marriage was expressed by S. I. Reutov 11 See, Reutov S.I. On the issue of actual marital relations // Issues of civil, labor and collective farm law, Perm, 1973. pp. 82-102.. In 1983 and subsequent years, it was presented in a rather sharp and detailed form in the works of the author of this study. M. V. Antokolskaya, O. A. Kosova, M. V. Krotov, N. S. Sherstneva and other civilists look at the problem with varying degrees of positivity.

As we have already noted, from the outside, an actual marriage differs from a “legal” marriage only by the act of state registration. This does not change the essence of both phenomena. In this regard, a peculiar analogy can be given - the norm of Part 4 of Art. 23 of the Civil Code of the Russian Federation: “... a citizen engaged in entrepreneurial activity...” without appropriate registration, “has no right to refer in relation to transactions concluded by him to the fact that he is not an entrepreneur. The court may apply to such transactions the rules of this Code on obligations associated with carrying out entrepreneurial activities.” Moreover, the analogy with the situations provided for by the rules of Art. 29 of the RF IC on recognizing as valid a marriage concluded in gross violation of the requirements of the law, as long as it corresponds to the interests of the minor spouse or the interests of the created family. In both types of incidents we have the reorganization of the legal form for the sake of the good essence of the phenomenon, i.e. overcoming by this very being formal legal regulations. Moreover, since cohabitation in a “legal” marriage is not a constitutive requirement (Part 1 of Article 31 of the RF IC: “Each of the spouses is free to choose... places of stay and residence”), but in fact, by definition, constitutes its very essence, it can be argued that not only in life, but also de jure, a “legal” marriage is a “lesser” marriage (or may be “lesser”) than the actual one, there is “less family” in it..

Actual marriage is an objective reality. The exact number of such unions is impossible to establish - the approximate number is determined during the population census: there are always more married women than men (this gap is mainly made up of actual marriages, in which the woman considers herself to be married, and the man is free from it ). By the way, it was precisely the orientation of the demographers of the 20s. XX century (and from 1926 - and lawyers) on the essential identification of “legal” and “actual” marriages and influenced the programs for conducting population censuses in the country in 1920, 1923, 1926. and post-war - 1959, 1970, 1979, 1989: demographers, unlike “moralists” or “normative lawyers”, are interested in the actually existing union of a man and a woman, regardless of the fact of its registration in the registry office, the family as a social organism, with the help of which issues of fertility and population are resolved (by the way, the most paradoxical result was obtained as a result of the 1970 census: there were 1 million 300 thousand fewer married men than women; this was partly explained by the phenomenon of polygamy in the southern republics , partly by a subjective assessment of the actual marriage by both respondents and enumerators: men in such cases often perceive themselves as single...).

In 1989, there were 36 million married couples in Russia, in 2002 - 34 million. Moreover, for the first time in the history of Russian censuses, not only officially registered marriages were counted, but also extramarital cohabitation of men and women (actual marriages), the number of which amounted to about 3 million. Thus, actual marriages, which have always existed as a social (and in certain periods of legal history - legal) phenomenon, have become increasingly widespread in recent years.

“No legislative prohibition,” writes M. V. Krotov, “can exclude from ordinary life extramarital affairs of a long-term nature, which the parties themselves, whether they want it or not, recognize as an actual marriage.... Public morality in relation to actual marriages has also undergone certain changes, more and more softening the intolerance towards actual marriages that prevailed in the 70s and 80s.”

This reality cannot be ignored. It is not without reason that, far from “lobbying” for the legal protection of de facto marriage, O. Yu. Kosova, however, asserts: “... from the point of view of the sociological interpretation of the family, it is obvious that de facto marriage cannot but be considered a family union if it fulfills the requirements the same social functions as a family based on a registered marriage.” But the author is confused whether it would be reasonable for the state to interfere in the private life of persons who deliberately, for various reasons, do not register their relationships in the prescribed manner, “and therefore do not seek legal protection from the state.” However, firstly, the will to do so is not always mutual: the demographic situation, traditions, life circumstances (pregnancy, motherhood, difficulties in relations with the “actual” mother-in-law, etc.) still often put a woman in the position of “weak” “or reconciling with an inevitable partner - you can’t drag a man to the registry office against his will... However, a man may also be in need of public sympathy, although in an obviously smaller number of cases. In addition, the awareness of the essence of a developing de facto marriage changes (as does the essence itself), so mutual reluctance to future legal protection is far from a fact. The need for such protection may arise. For example, a woman, having not completed her education and having not tried or failed to achieve business success, devoted herself to her de facto spouse, children (if they were born in this union, or her husband’s children from his first marriage) and even “in-laws” (for example, caring for a sick person). mother-in-law), and her husband decides to leave her, by the way, often when she no longer has a real opportunity to overcome her educational, work and family problems... In all such cases, personal interests are defenseless - so let at least property interests be protected

M. V. Antokolskaya also admits: de facto marriage relations are becoming increasingly widespread and it is not enough to limit oneself to simply stating the fact that they do not give rise to legal consequences: “An actual marriage should not be equated with a fully registered one, but it would be advisable to recognize some legal consequences for it in the field of property relations. In particular, for a spouse who has been in a de facto marital relationship for a long time, it would be possible to recognize the right to alimony, to inherit by law, and also directly allow de facto spouses to enter into marriage agreements, including with the condition that their property be subject to the regime of common joint property of the spouses."

It is beneficial for any state, notes A.D. Tolstaya, for citizens to enter into strong family unions, which, regardless of their registration, solve all the main functions of the family - sexual, economic, reproductive and educational. The problem is becoming more urgent in connection with the expansion of international relations, population migration, as well as in the light of Russia’s integration into the European space 12 Tolstaya A.D. Actual marriage, prospects for legal development // Law 2005 No. 10..

Before building a position on a fundamentally different basis, we should perhaps return to M. Bosanac’s classification and decide what type of concubinage can and should evoke public sympathy. From the point of view of subjective characteristics, problems of age, legal capacity, close relationship, and the status of concubinage partners in another marriage must be resolved. From the point of view of publicity - the question of the possibility of public recognition of an anonymous union. In terms of the duration of communication, there is a problem of timing as an element of the actual composition. If we were talking only about the legal presumption of paternity in a de facto marriage, the answers to these questions would not matter; it would only be enough to prove the fact of stable and long-term cohabitation with elements of maintaining a common household of the child’s mother and putative father during the relevant period. In our case, not only in connection with the tradition of recognizing the non-existent by law as existing, but also in connection with the property of the formal certainty of legal norms, on the one hand, and their conditionality by public morality, on the other, the answers to the questions arising from M. Bosanac’s classification have negative meaning.

If we move towards recognition of the phenomenon of de facto marriage, then, apparently, the requirements for it should basically correlate with the requirements for “legal” marriage, except for the sign of registration and the optionality of cohabitation: both of them undermine the very essence of de facto marriage. This means that age, close relationship, adoption relationship, state in another (registered or de facto) marriage, non-anonymity (publicity) of the union are conditions for the court to recognize the fact of de facto marriage, if we return to such a possibility in principle. It is somewhat more complicated with the conditions of legal capacity and the facts of concealment of diseases provided for by the rule of Part 3 of Art. 15 IC RF. As in the case of non-compliance with the requirement of marriageable age (for a “legal” marriage - Part 2 of Article 29 of the RF IC), determining the meaning of these facts should be left to the discretion of the court. And in general, in relation to the legal recognition by the court of the fact of a de facto marriage, it is logical and fair to use analogies of the norms of the RF IC on the reorganization and refusal to rehabilitate an “invalid marriage” (Article 29) and benefits for a bona fide party after the marriage is declared invalid (Article 30).

(By the way, the definition of the phenomenon under study by M.V. Krotov, which is strict in interpretation and long-term objectives, does not exclude such an approach: “Actual marriage is the relationship between the persons involved in it that meets all the requirements and conditions for marriage, but is not registered in the manner prescribed by law.” ).

In the West back in the 70-80s. Scientists, the public and politicians began to express concern about the crisis of family values, the family based on marriage. However, this did not lead to a “tightening” of measures against de facto marriage unions, as happened in the Soviet Union in the 40-50s, but, on the contrary, to a corresponding liberalization of the legislation of a number of countries.

By the way, Japan was one of the first to recognize certain legal consequences for de facto marriage. Back in 1915, the Supreme Court of Japan made a decision that imposed the obligation to compensate for damages on the person who violated the obligations arising from the actual marriage. These standards are still in effect today. In particular, the liability of an unlawful violator of obligations from actual marital relations is established, which involves full compensation for material and moral damage. The issue of illegality is decided at the discretion of the court - based on an analysis of the causes of the offense (marriage in close kinship, bigamy) or direct prohibitions. The personal legal basis of a de facto marriage is cohabitation, cooperation and mutual assistance, and the preservation of marital fidelity. If necessary, the fact of actual marriage is established by the court. A de facto marriage is subject to the property regime of an official marriage, except for the possibility of concluding a marriage contract, inheritance rights and the “legitimate” status of children. Social security and social insurance of de facto spouses are generally equal to spouses with official status. Upon termination of an actual marriage, it is possible to divide property according to the “marital” scheme, including by applying, by analogy, the relevant norms of the Civil Code of Japan, Art. 768).

In the Netherlands, the Registered Partnership Act of 1997 established that a man and a woman, without entering into marriage, as has always been traditional, can enter into a contract of cohabitation, register it and thereby create a family union in the form of a partnership. In 2000, the Further Convergence between Marriage and Partnership Act made the legal differences between them irrelevant and each can easily be transformed into the other.

A number of countries (Sweden, Belgium, Hungary, France, Portugal) have adopted regulations that recognize the relationship of actual joint family residence for a long time as generating legal consequences. Such relationships in their essence are not marriage within the meaning of the legislation on marriage and family and are called cohabitation.

A novelty of the French Civil Code as amended by the 1999 law was the introduction of a rule on concubinage - with the subsequent extension of a number of social benefits to concubins. In Art. 515-8 of the Civil Code of France, concubinage is defined as “an actual union characterized by a joint life of a stable, long-term nature, between two persons of different or the same sex living in a couple.” However, the period is not defined by law.

As S.V. Sivokhina notes, unlike marriage and the civil solidarity pact, concubinage is not a legal, but an actual state. However, French law takes these couples into account and provides them with protection in various areas. To do this, it is necessary to obtain a certificate of concubinage (certificate of a free union) from the mayor's office: this document allows concubins to retain the right to reside at the place of residence of the deceased concubin-employer, the right to receive social security benefits and some benefits for family needs (discount cards, etc.). ). A number of organizations do not require the presentation of a certificate and are satisfied with free-form written statements. Two types of concubinage are possible: simple, where a couple is made up of two people free from marriage, and concubinage-treason, when one of the cohabitants is married.

Thus, in France (as in a number of other countries), with varying degrees of formalization, several types of cohabitation have been legalized, requiring or not requiring registration. However, none of them implies the full legal consequences of marriage.

The approach to the problem in Ecuador is very unique. In this country, back in 1982, the Law “On Registration of Actual Marriage” was adopted. A.V. Slepakova suggests that the reasons for such a fundamental change were the liberalization of all socio-political life as a result of the civilian government coming to power in 1979 (after the military coup of 1972), as well as circumstances similar to those that had developed in Russia by 1926 , - insufficient spread of the established Soviet form of marriage among the Catholic population. In Art. 1 of the Law establishes that “a permanent and monogamous de facto marriage lasting more than two years between a man and a woman, free from the marriage union, in order to live together, give birth to children and provide mutual assistance to each other, provides the basis for the formation of a community of property.” Norm Art. 10 of the Law prescribes that all rules of inheritance for “legal” spouses under the Civil Code of Ecuador be applied to the surviving de facto spouse, and Art. 11 - tax and pension legislation.

The German Social Code (as amended on June 8, 2006) establishes the characteristics of a conjugal community; 1) living together in the same living space for more than one year, 2) having a child together; 3) mutual material support and care for the children of one of the partners living with them or other close relatives; 4) disposing of property or settling the affairs of the other partner. If one of these facts is proven, the union of a man and a woman is recognized as a de facto community and entails obligations for mutual material support.

It should also be borne in mind that the various registered partnerships that we discussed in the paragraph devoted to the problem of bisexual marriage are, of course, valid for cohabitations (partnerships) of a man and a woman - the socio-economic partnership of France, registered partnerships of the countries of Scandinavia, Germany, Iceland, Belgium, South Africa, Portugal, regional partnerships in Canada and the USA, etc. Ukraine has partially legalized de facto marriage relations. The Family Code of 2003 establishes: “... if a woman and a man live in one family, but are not in a registered marriage with each other, then the property acquired by them during their cohabitation belongs to them by right of joint ownership, unless otherwise provided in writing agreement between them." The possibility of alimony obligations arising is also provided for (Articles 16, 91 of the IC of Ukraine).

Two normative provisions of the Code of the Republic of Belarus on Marriage and Family (as amended on July 20, 2006) are of interest. Firstly, among the general principles of family legislation there is a very important statement: “Raising children and running a household is recognized as socially useful work” (clause 3 of Article 3). Theoretically, this emphasizes the need to protect de facto spouses (usually women) in the property sphere, and practically, the possibility of creating a fair precedent based on an analogy with the rules on legal matrimonial property. Secondly, according to the norm of Art. 59, as we noted earlier, provides a definition of family. At the same time, its constitutive features are, in fact, similar to those of an actual marriage (moral and material community and support, living together, running a common household, etc.), and not only spouses are allowed as subjects, although as an exception. but also other persons. We believe that Belarusian legislation has one step left before recognizing the need for at least some protection of de facto spouses, taking into account the specified prerequisites (which are absent in Russian legislation).

Let's summarize some results.

1. The terms “actual marriage”, as well as “civil marriage”, “cohabitation of spouses”, etc. conditional. However, taking into account the special meaning of the concept of “civil marriage” (secular - in contrast to church, equal in meaning to the concept of “registered”, “legal” marriage), the first philological construction is preferable. This is more consistent with the established terminological tradition in Russian civil law (family law) doctrine.

2. History and modernity know various forms of actual marriage - paired marriage, concubinage (in a certain sense - both Roman marriage sine manu, as well as contubernium), civil marriage (non-secular, but union, cohabitation on a personal contractual basis - like actual family unions among Russian commoners, sometimes among religious dissidents), registered partnership, lifelong partnership, regional, actual marriage in the strict sense of the word (without a contract and registration).

3. Classic from the point of view of its essence is an actual marriage - a union of a man and a woman, concluded by them in compliance with socially recognized conditions of monogamy, age, legal capacity, kinship, adoption, characterized by stable long-term cohabitation, running a common household, and in the presence of children - taking care of them, i.e. maintaining family relationships. In this case, the period can be determined by law (for example, at least one year) or qualified by a court. “Quasi-factual” marriages are: 1) unions of formally unfree persons; however, by analogy with the recognition of the legal meaning of “actual divorce,” not all of them should be categorically denied - at the discretion of the court, provided that the fact of a long and sustainable termination of the relationship of “legal” marriages is proven, such unions can be sanitized; 2) unions that do not meet the classical requirements for registered marriages (age, relationship, etc.); they can also, in our opinion, be sanitized by the court - according to the exact scheme for sanitizing an invalid marriage.

4. The development of the institution of actual marriage in terms of its recognition as a legal fact can be carried out in various ways: 1) by analogy with the 1926 Code of Laws of Ukraine - by establishing the fact of actual marriage in a special civil proceeding, including in the event of death, declaring dead or unknown one of the union members is absent; 2) by granting de facto spouses the right to enter into family partnership agreements - both in simple written form and with notarization.

5. It is expedient and fair to extend to de facto spouses the right to: a) community of marital property and its division according to the rules of the RF IC; b) concluding an agreement on the regime of property in a de facto marriage (family partnership) - according to the model of a marriage contract; c) concluding an agreement on alimony or a claim for its collection; d) to the presumption of paternity in actual marriage (with legal confirmation of the latter).

6. The housing interests of de facto spouses should be protected - within the framework of Art. 31 of the RF LC, classifying them as family members, and also provide for some rights in the field of inheritance (at the same time, if the testator was officially married, but did not actually live with the “legal” spouse for a long time, the court should be given the opportunity to assess the specific situation and make a fair decision; the terms of “actual divorce” and “actual marriage” can be established by law: 1 year, 5 years, 10 years - as the legislator decides, and still differentiated - depending on the protected interest.

7. In social security, tax and other aspects of benefits for family unions, an appropriate reaction from the legislator would also be logical and desirable.

Today, Russian legislation does not distinguish separate terms that reveal the essence of the concept of marriage and family. But this does not mean at all that the legislator did not establish the basic provisions of marriage relations between men and women, as well as the consequences arising from this union in the form of material, spiritual and other benefits, as well as obligations to children born in the family.

At the same time, along with the laws regarding marriage, today in Russia it is becoming fashionable to “live” together in order to “take a closer look” at each other, and only then get married. In many families, such a period sometimes stretches for decades, and in some cases, spouses manage to die without ever legitimizing their relationship. Taking into account such trends, the concept of “civil marriage” and the associated consequences were enshrined at the legislative level. True, this also does not fully solve the existing problems, so attempts to expand the influence of potential spouses on each other continue to this day.

Now we suggest that we consider everything in order in order to fully immerse ourselves in the issues, weigh the positive and negative sides of individual proposals and draw our own conclusions.

What does legal marriage decide?

Before you start to panic and be afraid of legal marital relations, it is advisable to consider what they are, how they are reflected on a man and a woman, what legal consequences they may have, including in the event of a break in relations and the end of a family. The following basic aspects of life in a legal marital relationship should immediately be noted:

• a marriage union is a voluntary decision of a man and a woman to live as one family for the purpose of living together, giving birth and raising children;
• in marriage, a couple has the same right to property, things, material and intangible benefits acquired during such life;
• in the event of children, spouses are obliged to ensure their proper upbringing, living conditions, and the opportunity to receive an education;
• spouses have the right to demand that the state perform certain actions in the interests of the other couple on their own behalf without the need for any consent or guarantees;
• the opportunity to live under the same last name, to act on behalf of each other in the interests of the family without any powers of attorney or guarantees;
• the exercise of the right to large purchases (for example, real estate, cars, land), subject to registration by the state, can be carried out exclusively with the consent of the other spouse;
• the possibility of forcing the second spouse to perform certain actions regarding family members and its members (for example, paying alimony, limiting communication with his wife, children, a ban on visiting the former spouse’s home after a divorce, an administrative warning in case of use of physical force regarding the second spouse or joint children).

Of course, this is not a complete list of the obligations and rights of the parties that they receive when entering into legal marital relations. At the same time, having a stamp in your passport guarantees a certain social protection and the opportunity to receive help from a loved one in difficult times. Considering that such a union is a voluntary decision, even in the event of any troubles, the spouses try not to leave the other in trouble, and if this does not happen, the state has the right to oblige the negligent husband or wife to fulfill the functions assigned by law to support another member of the family, as well as minors children (if any).

You need to understand that it is precisely this prospect of dependence on another person and the formidable state supervision of those who do not want to fully fulfill family obligations and functions that becomes the reason why most men (as it happens according to available statistics) try to do without a legal union. Often they simply motivate such actions by the need to take a closer look at each other, to understand how suitable you are, compatible in character, temperament, and ability to get along on an everyday level. Over time, legal marriage begins to be relegated to the background (the argument is simple - why rush, because we are already doing well), and then they try to forget about it altogether. As a result, when any troubles occur, and the second spouse does not want to help, there is simply no leverage to oblige him to do so.

What's good about civil marriage?

In some way, a breakthrough at the legislative level was the introduction (albeit indirectly) of such a concept as “civil marriage”. The legislator classifies civil marriages as long-term cohabitation between a man and a woman, running a joint household, and having a joint budget. At the same time, such a couple does not legitimize their relationship according to the established procedure. That is, legally, it is simply the usual living under the same roof of a woman and a man who are legally strangers to each other.

Such a marriage has the following distinctive characteristics:

• the couple lives in the same house or apartment for a long time;
• there is a common household, everyday life, the couple helps each other in various everyday situations;
• by agreement among themselves, they carry out various purchases, including real estate, cars, and plots of land that require state registration. In this case, the consent of the second of the pair is not required - here everything is carried out solely by the decision of such a common-law family;
• children born in such a union are not considered born into a full-fledged family, although they may have the surname of both the mother and the father (here at the request of the parents);
• the possibility of dividing property in the event of the breakup of such a couple is established at the legislative level;
• In order to “break up” you don’t need to notify anyone or register anything – it’s enough to simply present the other party with a fait accompli.

You need to understand that such living is also a voluntary decision of a man and a woman. In this case, no one has the right to force them to do this, or, against their will, to prohibit them from living like this. With the exception of cases when minor young people enter into such relationships, for whom their parents are still responsible.

From everything described above, it is not difficult to guess that both a man and a woman living in a civil marriage can simply up and leave at any time. At the same time, if there were no large purchases (as a rule, this concerns real estate, expensive things, cars), which were bought with joint money and the parties want to divide it, then such a marriage can be considered over.

At the same time, to prove the fact of such a purchase, you will have to go to court, provide evidence of joint residence, purchase of an item or property with common money. And if during the life of the spouses such a division usually ends with the adoption of settlement agreements (after all, recently these were still people close to each other, albeit without legal obligations), then in the event of the death of one of such spouses and the need to enter into an inheritance, in the presence of other relatives , the procedure for allocating such property can be very difficult. After all, here you will first have to prove the fact of living in a civil marriage, and then also the fact of purchasing the thing for joint money, and then also defend the right to a part of it.

What is “Actual marital relations” based on the proposals of legislators

Now that we have briefly familiarized ourselves with the current concepts of family legislation in Russia, as well as the main advantages and disadvantages of such types of cohabitation, we can consider the next initiative of legislators to legitimize such a concept as “actual residence”.

In short, this is something between a civil marriage and a real marriage. To be more precise, this is a smooth transition from the state of civil marriage to the actual legalization and equating the couple’s cohabitation to a marital relationship. At the same time, according to legislators, when introducing such a concept into legislation, it is necessary to endow such a marriage with certain powers and obligations. To start:

• establish a period when a couple’s long-term cohabitation ceases to be considered a civil marriage without obligations and becomes an “automatic” family;
• establish a list of additional rights and obligations arising before a couple living in a “de facto relationship” in connection with the recognition of such a fact;
• the need to secure a mechanism for how cohabitation will be recognized as “actual marriage”, which for this will need to be provided or fulfilled;
• decide and regulate by law the procedure for the “de facto relationship” of a couple in which the man and woman are citizens of other countries and how this will be regulated outside of Russia.

In fact, the idea of ​​​​introducing the concept of “actual marriage”, or automatically equating living together with legal marital relations would significantly strengthen the position of each of the parties to such relations in case of need to protect themselves, their property, and realize the desire to receive protection from the state in difficult times . At the same time, the issues of division of property in the event of the death of one of the spouses are also simplified - you will not need to look for evidence for your own acquisitions, it is enough to simply recognize the fact of an “actual marriage”, and then the entire procedure will be carried out in accordance with general legislation.

It is necessary to understand that the presence of such a concept will significantly strengthen the position of children born in an unregistered marriage, and also allow them to exercise their right to help from their parents in difficult life situations, as well as enable the state to force one of the parents (or two at once) to fulfill their parental obligations. obligations.

Considering the positive countries of this phenomenon, one should not ignore some critical remarks expressed both at the level of legislators, legal organizations and lawyers, as well as during various sociological surveys. First of all, all opponents of this concept come down to one thing - marriage (whether legal or civil), this is a voluntary phenomenon. Nobody forces anyone to do this and does not oblige anyone to do or refuse. What follows is a simple, but quite effective argument - if the couple has decided, then they have the opportunity to simply legitimize their relationship in the established order and not run through the courts, proving that you have been a “de facto family” for a long time and issue a document confirming this.

Many critics agree that forced marriage (essentially automatic, without the consent of the parties; recognition of a civil marriage as an official union should be called just that) has a huge number of legislative gaps (for example, if in a legal marriage you can always get a divorce and this procedure is provided for at the legislative level, then what to do with an actual marriage recognized by the court, if one of the couple subsequently legalizes their relationship with another person). That is why simply introducing a concept without thinking through and modeling most of the possible situations in which such couples may find themselves, and also without providing a normal mechanism for resolving them, will ultimately result in an even greater collapse than we have today.

The most ardent opponents of this position say simply - this approach will simply push cohabitants to indiscriminately change sexual partners in order to avoid being trapped in a marital relationship. Therefore, it is better to improve the existing legislative norms regarding life in a civil marriage regarding the division of property and the protection of joint children, and then simply put an end to it.