Confession marital relations through the court is a very difficult task and judicial practice in such cases is generally negative. Why? Because the Family Code regulates the regime of joint ownership exclusively married persons.

There are no such concepts in the law as "actual marital relationship"or "civil marriage". The law does not establish rights or obligations for people (cohabitants) whose relationship is not registered. Accordingly, it is impossible to divide joint property, because there is simply no such thing (and the need to recognize cohabitation as marriage arises when one of the parties wants divide property).

How to prove the fact of marriage?

Positive judicial practice on recognizing de facto cohabitation as marriage can be counted on one hand; it will take a long time to search. I want to post one of these solutions on my blog (solution).

What did the judge accept as evidence of the marital relationship?

A detailed list of property acquired during the period of marriage, testimony of witnesses, of whom quite a lot were interviewed. And also information from a social network page, in which the “marital status” column indicates “married” (who would have thought that such information could become evidence of family life in court?).

Testimony of witnesses on the other side who stated otherwise the court did not take into account- which is of course strange.

As you can see, the prospect of recognizing cohabitation as marriage appears if the relationship was long-term, there is a child, kindergarten teachers or school teachers will confirm in court that the child was taken by both mom and dad, there are joint photos, vacation trips, joint expenses, purchase of property - anything, the main thing is joint and in front of witnesses. Everything I have indicated is not direct evidence, so it is impossible to speak unequivocally about their strength for the court. The more evidence of “joint”, the greater the chances of proving to the court the actual marital relationship.

The legislation of most states only recognizes marriage formalized in the prescribed manner, i.e. registered with state or municipal bodies vested with the appropriate powers, or performed according to a specific religious rite, if the laws of a given country equate a religious marriage with a registered secular one.

One of the basic principles of the current family legislation of the Russian Federation is the recognition only of marriages concluded in the civil registry office (clause 2 of article 1, clause 2 of article 10 of the RF IC). As a general rule, only a marriage registered in accordance with the procedure established by law gives rise to the rights and obligations that are provided for by family law for spouses.

An exception is the rule established by the Decree of the Presidium of the Supreme Soviet of the USSR dated November 10, 1944 “On the procedure for recognizing de facto marital relations in the event of the death or disappearance of one of the spouses at the front.”

There was a period in the history of domestic family law when legal significance was given to actual marriages. Actual marriage relations gave rise to legal consequences similar to the consequences of a legal marriage during the period of validity of the Code of Laws on Marriage, Family and Guardianship of the RSFSR of 1926 and before the adoption of the Decree of the Presidium of the Supreme Soviet of the USSR of 07/08/1944 “On increasing state assistance to pregnant women, large and single mothers” , strengthening the protection of motherhood and childhood, on the establishment of the highest degree of distinction - the title "Mother Heroine" and the establishment of the Order of "Maternal Glory" and the medal "Motherhood Medal", which invited de facto spouses to formalize their relationship by registering a marriage indicating the period of actual life together . If the actual marriage was not registered, it retained its legal force only until 07/08/1944. If such registration turned out to be impossible due to the fact that one of the actual spouses died or went missing at the front during the Great Patriotic War. By the Decree of the Presidium of the Supreme Soviet of the USSR dated November 10, 1944, the other de facto spouse was given the right to apply to the court to recognize him (her) as the spouse of a deceased or missing person on the basis of previously valid legislation.

If initially the possibility of judicial recognition of actual marital relations was allowed only in relation to persons killed or missing at the front, then later judicial practice followed the path of a broad interpretation of the Decree, extending its effect to relationships when the death or disappearance of one of the spouses occurred although and after the war, but the actual marriage relationship that arose before 07/08/1944 continued until the death of the spouse, and objective circumstances (serious illness and other circumstances that prevented the registration of the marriage) did not allow the spouses to subsequently register the marriage.

It should be noted that the Decree of November 10, 1944 did not establish a time limit for the surviving de facto spouse to apply to the court to recognize him (her) on the basis of previously existing legislation as the spouse of a deceased or missing person at the front. Therefore, appealing to the sul with such a statement is possible in our time. And although there are fewer and fewer persons who are in de facto marital relationships that arose before 07/08/1944, the need for legal recognition of such relationships is not completely removed.

Thus, at present, actual marital relations of persons, one of whom died or went missing at the front during the Great Patriotic War, can be equated to a registered marriage.

The resolution of the Plenum of the Armed Forces of the Russian Federation dated November 5, 1998 No. ^explains that since, in accordance with the legislation in force before the issuance of the Decree of July 8, 1944, an unregistered marriage had the same legal consequences as a registered one for property acquired jointly by persons who were married In family relationships without marriage registration, before the Decree enters into force, the regime of common joint property of the spouses applies. Based on clause 6 of Art. 169 of the RF IC, when resolving a dispute over the division of such property, it is necessary to be guided by the rules established by Art. 34-37 RF IC.

In other cases, actual marital relations cannot be regulated by family law. Property relations between de facto spouses can be regulated only by the norms of civil legislation on common shared property, which has been repeatedly emphasized in decisions of the highest judicial bodies.

However, in some cases, the property of actual spouses may be subject to the regime of common joint property. In accordance with paragraph 3 of Art. 244 of the Civil Code of the Russian Federation, the formation of joint ownership of property is possible only in cases provided for by law. In addition to the RF IC, other laws also provide for the emergence of joint ownership. So, in the original version of Art. 2 of the Law of the Russian Federation dated 04.07.1991 No. 1541-1 “On the privatization of housing stock in the Russian Federation”, residential premises could be transferred into common ownership (joint or shared) or into the ownership of one of the persons living together, including minors. In accordance with the amendments made to this Law on May 15, 2001, residential premises transferred through privatization may belong to the persons living in them only on the basis of common shared ownership, with the exception of spouses, to whom the residential premises are transferred into joint ownership. Thus, for 10 years, privatization housing legislation allowed for the possibility of joint ownership among persons who were not in a registered marriage.

Actual spouses may also have common joint ownership of certain other types of property if they are part of a peasant (farm) enterprise or of common use property in a gardening, vegetable gardening or dacha non-profit partnership acquired or created by such a partnership at the expense of targeted contributions from its members if the actual spouses are members of one such partnership. Relations between actual spouses regarding such property are subject to regulation not by family law, but by civil law rules on joint property.

• See: Federal Law of June 11, 2003 No. 74-FZ “On Peasant (Farming) Farming”.
• See: Federal Law of April 15, 1998 No. 66-FZ “On gardening, vegetable gardening and dacha non-profit associations of citizens.”

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An amendment to the Family Code has been submitted to the State Duma, according to which a man and woman who have lived together for more than five years will be recognized as husband and wife, even if their marriage is not officially registered. For this purpose, the concept of “actual marital relations” will appear in the Family Code.

“A de facto marriage relationship is a union of a man and a woman who are not registered in the established manner, living together and leading a common household. The signs of a de facto marriage relationship are: cohabitation for five years; cohabitation for two years and the presence of a common child (common children).” , says the bill.

The status of de facto marital relations entails the rights and obligations of spouses provided for by family and civil law. In particular, to enter into such a relationship, persons must be of legal age, not be married to another person, and not be close relatives.

“The signs of a de facto marital relationship are: cohabitation for five years; cohabitation for two years and the presence of a common child (common children).”

“Our compatriots do not consider a stamp in a passport a necessary condition for creating a full-fledged family,” explain the authors of the bill. “However, from the point of view of the law, so-called cohabitation is not recognized and does not give rise to any legal consequences, which puts members of such a union in a very vulnerable position.” Therefore, he proposes to extend the “legal regime of property of spouses” to property acquired during the period of cohabitation: everything acquired by them during the period of cohabitation will be recognized as joint property.

"A completely unnecessary initiative"

The explanatory note to the document contains a link to countries where there are similar laws - Sweden, the Netherlands, Norway, France and Germany. However, in Russia the reaction to such initiatives turned out to be quite restrained.

Deputy Chairman of the State Duma Committee on Family, Women and Children Oksana Pushkina said that her new bill is “a little scary.” “I think it’s right not to legislatively intrude into this area, because if adults want to get married, they will do it. And if they don’t want to, for any reason, then the legislator shouldn’t oblige them,” Pushkina noted in a comment to the iz.ru portal. “There is a legal marriage. They must enter into it voluntarily. But automatically considering it concluded is a completely unnecessary initiative.”

In her opinion, the adoption of such an amendment to the Family Code will lead to numerous legal disputes, where one of the spouses will prove that cohabitation lasted five years, and the other - that it lasted four and a half. “It will turn out to be nonsense,” stated the deputy chairman of the Duma Committee on Family, Women and Children.

“There is a legal marriage. You must enter into it voluntarily. But automatically considering it concluded is a completely unnecessary initiative.”

The Public Chamber of the Russian Federation commented even harsher on the new legislative initiative. “This law is aimed exclusively at the division of property, the question should not be raised this way, the responsibility of the spouses should not be financially motivated,” said Elina Zhgutova, a member of the OP. “The responsibility of the father, who often leaves the family, is unlikely to increase if he is forced to divide the property.” .

According to Zhgutova, the new amendments to the Family Code will only legitimize “the vicious practice of so-called cohabitation.” According to the results of an anonymous survey conducted in the Telegram messenger, 27% of respondents voted for equating cohabitation with marriage, and 73% voted against.

The explanatory note to the new bill notes that “according to the Ministry of Labor, in 2016 the minimum number of marriages in the Russian Federation over the past 20 years was officially registered.” The new law will likely help correct these statistics if it allows officials to equate “civil” marriages with official ones. But it will not affect the attitude of Russians towards the institution of family and marriage.

According to VTsIOM surveys, 81% of Russians do not consider an unregistered marriage to be something reprehensible, and 60% are sure that the main motive for getting married is the birth of children. 79% of Russians are convinced that living in a marriage is better than living alone. And 12% prefer not to get married, stating something like “family life is not for me, and I’m simply not able to see the same person every day.”

Today, when marriage has ceased to be an economic and social necessity, many more marriages are performed solely for love

At the same time, sociologists note that today, when marriage has ceased to be an economic and social necessity, many more marriages are performed solely for love. This is supported by the dynamics of marriages and divorces: according to Rosstat, in 2017 there were almost 47 thousand more marriages than in 2016. The number of divorces increased over the year by only 3 thousand.

As a result, last year there were 505 thousand divorces out of 905.9 thousand marriages. Women most often file for divorce; among the most common reasons for divorce are infidelity, drunkenness and assault. At the same time, as sociologists note, if in the 1960s after a divorce 30-40% of women remarried, today the figure is 70%.

Sologamy and hikikomori

Statistics on the number of official marriages in Russia are a faint shadow of the family crisis that is unfolding today in developed countries of the world. We are not even talking about the spread of same-sex marriage.

By the way, when the US Supreme Court legalized same-sex marriage two years ago, the Israeli newspaper Maariv burst out with a sarcastic article about the fact that “as the whole world moves away from the tedious institution of marriage, the LGBT community was allowed to get married.”

“My dear gays, before you joyfully plunge headlong into the pool called “marriage,” know that although only a third of marriages formally break up, this only means that everyone else suffers in silence,” wrote the author of the note, Dror Rafael. “You got an equal opportunity to be unhappy, and equality is very important."

Sociologists regard sologamy as “a natural result of the development of narcissism and individualism in modern culture based on social networks.” “Marriage to oneself is a natural consequence of modern individualism, which goes much further than traditional individualism,” notes British sociologist John Horvath. “Traditional individualism somehow takes into account the limitations of traditions and customs. Postmodern individualism is based on the idea of ​​absolute human autonomy. People are told that they themselves are the only architects of their freedom and destiny, and the main goal of their life is the rapturous race to realize their own interests."

The downside to the spread of these “new family forms” is the unprecedented number of people living alone, which is becoming a huge social problem in developed countries. Last week, the UK even created the post of Minister for Loneliness. Tracey Crouch has become minister and will develop the first government strategy in the country's history to combat the problem of loneliness.

On the opposite side of the globe, in Japan, the nation's largest newspaper, the Mainichi Shimbun, last week published a lengthy article about hikikomori - people who deliberately isolate themselves from society. The media first started talking about them about ten years ago, when they were talking primarily about teenagers.

In 2010, the first national study was conducted, according to the results of which the number of people “who do not go to school or work for more than six months” was about 700 thousand people. Now their number has decreased to approximately 540 thousand people. However, at the same time, the number of Japanese who have been in a state of hikikomori for more than seven years increased from 17 to 35%. It was discovered that this syndrome is becoming protracted, and that people of increasingly older age categories are now susceptible to it.

In Japan, 45% of women and more than 25% of men aged 16 to 24 said they were “not interested in sexual intercourse and despise it.”

Today, the majority of hikikomori are among Japanese people over 40 years of age. Moreover, the average duration of self-isolation from society in this age group is more than 22 years. But this is not the only problem: in parallel with the problem of hikikomori, the Japanese are discussing a new social phenomenon - the “80-50 problem”. The essence of the problem is that more and more parents aged 80-89 continue to financially support their 50-60 year old sons and daughters.

Last year, the results of a sociological study, which the media called the “celibacy syndrome,” came as a shock to Japanese society. A large-scale sociological survey found that 61% of unmarried men and 49% of women aged 18-34 have never been in any romantic relationship.

45% of women and more than 25% of men aged 16 to 24 said they were “not interested in sexual intercourse and despise it.” Based on these surveys, Japanese demographers have made a forecast according to which the population of the Land of the Rising Sun will decrease by a third by 2060.

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