Invalidity of a fictitious marriage legal problems. Recognition of marriage as invalid. How to challenge a claim for the invalidity of a marriage

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Recently, more and more often you can encounter issues related to divorce or invalidation of marriage. Sometimes a marriage is deliberately concluded fictitiously, for example, to obtain the right to legally stay in the country. Therefore, it is important to know the legal grounds for declaring a marriage invalid, as well as to understand the consequences arising from this.

Legislation

Issues regarding the recognition of marriage as invalid are regulated by the Family Code of the Russian Federation. According to Art. 27 of the RF IC, in case of violation of the provisions of Articles 12 (voluntariness of a marriage union), 13 (reaching the age of marriage), 14 (grounds for the impossibility of entering into a marriage union) and 15 (concealment of a venereal disease by one of the spouses), as well as if there are signs of fictitiousness, the marriage may be declared invalid.

Issues of a property nature are regulated by the norms of the Civil Code of the Russian Federation. When going to court, as well as during the trial, you should be guided by the Civil Procedure Code of the Russian Federation.

Grounds for recognizing the invalidity of a marriage

Let's see in what cases the law provides for the possibility of declaring marriages invalid.

Such grounds, for example, could be:

• the presence of a sexually transmitted disease deliberately hidden from the spouse;
• violence or coercion during marriage;
• non-dissolution of a previous marriage when concluding a subsequent one.

Thus, the reasons for declaring a marriage invalid can be very different, and it often happens that they may not be known at the time of the marriage. For example, spouses may honestly be mistaken about the absence of close kinship in relation to each other.

According to Art. 14 of the RF IC, in the event of a marriage between close relatives, it may be declared invalid. This could be the case, for example, when a parent and child or brother and sister marry: including adopted ones.

Invalidation of marriage after divorce

According to the norms of family law, if a marriage has already been dissolved, then it can be declared invalid only if there are grounds clearly defined by law. For example, if one of the spouses hides from the other that he was married at the time of the conclusion of the second family union.

When a marriage cannot be declared invalid

If the marriage union is dissolved, but subsequently there is a need to recognize it as invalid, you should know that there are certain conditions under which it will no longer be possible to recognize the marriage as invalid.

The circumstances eliminating the invalidity of a marriage are established by law. These, in particular, include the need to respect the rights and interests of minors, as well as the termination of circumstances that previously excluded the validity of marriage. For example, if a marriage was conceived and concluded as obviously fictitious, but subsequently a real family was formed, it also cannot be declared invalid.

Who has the right to file a claim for annulment of marriage?

Either one of the spouses, or a representative of the prosecutor's office, the guardianship and trusteeship authorities, or the guardian of the incapacitated spouse can apply to the court to declare the marriage union invalid (initiate the termination of the marriage). It all depends on the exact reasons for going to court.

If one of the spouses is incapacitated, or if it turns out that one of the couple has not yet reached the required age to enter into a marriage, legal proceedings are conducted with the mandatory participation of representatives of the guardianship and trusteeship authorities.

How can a marriage be declared invalid?

The procedure for recognizing a marriage union as invalid is regulated by the RF IC, which explicitly states that resolving issues of the invalidity of marriage unions falls within the competence of the judiciary.

Before going to court, it is first necessary to analyze whether there are sufficient grounds for declaring the marriage invalid, and also to establish at what point such grounds arose.

In order to declare a marriage invalid in Russia in court, it is necessary to competently and motivatedly draw up a statement of claim. If the claim meets all procedural requirements, it must be filed in court through the court clerk.

Thus, when deciding how to annul a marriage, it is important to follow the procedure for resolving this category of disputes provided for by law.

Where to go to have your marriage declared invalid?

The current legislation does not provide for any special procedure for disputes about the invalidity of marriage unions. Therefore, cases of this category are considered in courts of general jurisdiction according to the rules of civil procedural legislation.

Thus, if the conditions established by law for concluding a marriage are violated, a person who has sufficient grounds to believe that his rights and interests have been violated, and can also prove this, must apply directly to the district (city) court.

At the same time, in addition to marriage and family legislation, one should also be guided by the relevant provisions of the Code of Civil Procedure of the Russian Federation. In particular, attention must be paid to the requirements regarding the form and content of the statement of claim.

Necessary documents for going to court

To open proceedings in court regarding the annulment of a marriage, it is important to competently and reasonably draw up a statement of claim.

The claim must be motivated; it must indicate both the circumstances of the marriage (when, how and where it was concluded) and specific rules of law in support of its claims. That is, it is necessary to explain to the court why in this particular case a decision should be made to recognize the invalidity of the marriage union.

The statement of claim must indicate the details of the plaintiff and defendant, including their full addresses, and indicate the circumstances on which the plaintiff’s legal position is based. The application must be dated and signed by the applicant.

When a marriage is declared invalid, it is important to take a responsible approach to collecting the necessary evidence. Therefore, copies of documents confirming the facts and circumstances referred to by the plaintiff must be attached to the claim.

Legal process for annulment of marriage

After accepting the statement of claim, the district (city) court examines it for compliance with the norms of civil procedural law. After this, the judge opens court proceedings in the case.

The legal process to annul the marriage must be completed within two months.

It is important to know that even if at the time of filing the claim it was not possible to attach certain copies of documents, if necessary, the court can request them during the process. The court may also invite and question witnesses in the case, request certificates and other documentation. You should exercise your procedural rights and submit appropriate petitions to the court.

Within the two-month period allotted for resolving the dispute, the court must study and verify all the circumstances set out in the claim, as well as the evidence referred to by the parties.

If the conditions established by law for marriage are violated, the court makes a decision to declare the marriage union invalid. Otherwise, the claim may be rejected.

Conclusion of a fictitious marriage

The conclusion of a fictitious marriage union may be associated with the selfish goals of one of the spouses. For example, marriage may be needed to legalize stay in the country, in order to obtain certain property, and so on.

According to Art. 27 of the RF IC, a marriage union may be declared invalid, including if signs of its fictitiousness are established.

If the court determines that the marriage is fictitious, such a union, as initially invalid, will not give rise to the spouses who entered into it, the scope of responsibilities and rights that arise for spouses under the law. For example, if a question arises about the distribution of property, then the provisions on shared rather than common joint property will apply. If a prenuptial agreement has been concluded, it will be considered invalid.

The legal consequences of declaring a marriage invalid vary for spouses depending on which of the couple was a bona fide spouse and who was not. If the spouse had sincere intentions, he has the right to demand compensation from the unscrupulous partner for the damage caused, both material and moral.

Differences between declaring a marriage invalid and dissolving a marriage

Dissolution of a marital union, whether termination by mutual consent of the spouses or in court at the request of one of them, in any case entails legal consequences for both parties.

An invalid marriage is another matter. What distinguishes the recognition of a marriage as invalid from a divorce is that from the moment of its conclusion, an invalid marriage does not create legal consequences for its participants, that is, it does not give rise to rights and obligations.

Children's rights when a marriage is declared invalid

An important point when declaring a marriage invalid is the protection of the rights and interests of minors. The rights of children born in such a union or born within three hundred days from the date the court established the fact of its invalidity should not be violated.

In other words, it is legally established that children of a marriage declared void should not suffer any adverse consequences with respect to their rights and interests. The parents of such children fully retain all parental responsibilities, including the maintenance of children, their upbringing, and payment of alimony.

Arbitrage practice

When courts consider claims for declaring a marriage invalid, the judicial practice that has developed in this category of cases also plays an important role. In particular, when considering this category of cases, the courts are guided by the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 No. 15 “On the application of legislation by courts when considering cases of divorce.”

The question of proving the purpose of creating fictitious unions raises considerable difficulties. The established practice in resolving such disputes shows that in cases of fictitious marriages, judges need to not only find out the reasons that prompted the creation of such a union, but also establish what intentions each of the couple had regarding creating a family.

Lawyer. Member of the Bar Association of St. Petersburg. More than 10 years of experience. Graduated from St. Petersburg State University. I specialize in civil, family, housing, and land law.

The law does not define the concept of the invalidity of a marriage, but only indicates the conditions the violation of which entails the invalidity of a marriage.

In the legal literature, when determining the invalidity of a marriage, most authors indicate that invalidity is a legal consequence of violation of the conditions of marriage. As for the legal nature of this institution, its essence, the views here are not so unanimous. According to some scholars, the recognition of marriage as invalid is a type of family legal responsibility. Others believe that this is a sanction that is a protective measure.

Recognizing a marriage as invalid means returning the parties to their previous legal status. More precisely, according to the law, persons in a marriage declared invalid do not have any rights and obligations of spouses (with certain exceptions). But in a number of cases, persons entering into an invalid marriage strive to prevent matrimonial legal relations from arising between them. This is typical for such a type of marriage as fictitious. This means that declaring a marriage invalid in a number of cases corresponds to the interests of the persons in such marriages. And sometimes they themselves seek to have their marriage declared invalid.

There are several reasons for declaring a marriage invalid. Chapter 5 of the Family Code of the Russian Federation contains a whole list of grounds for declaring a marriage invalid.

A marriage is recognized as invalid if, during its conclusion, the conditions established by Art. 12 - 15 RF IC, namely:

· Lack of voluntary consent of persons entering into marriage;

· Not reaching marriageable age;

· Lack of permission from authorized bodies for marriage by persons under marriageable age;

· Marriage between persons, at least one of whom is already in another registered marriage;

· Marriage between close relatives - parents and children, grandparents and grandchildren, brothers and sisters;

· Marriage between the adoptive parent and the adopted children;

· Marriage between persons, at least one of whom has been declared incompetent by a court due to a mental disorder;

· If one of the persons entering into marriage conceals from the other person the presence of a sexually transmitted disease or HIV infection;

· In case of a fictitious marriage.

As you can see, there are enough grounds for declaring a marriage invalid, but at the moment I would like to focus on fictitious marriages.

Fictitious marriages have existed for a long time. People entering into a fictitious marriage are trying to achieve their specific goals with its help. Some people need registration, some need money, some need citizenship, some want to change their social status. Fictitious marriages have become most widespread in our time, when a huge number of migrants are moving to Russia from the former Soviet republics in search of a better life.

Persons who have the right to demand recognition of the marriage as invalid are listed in Art. 28 IC RF.

· Minor spouse or his parents;

· A spouse whose rights have been violated by marriage;

· A spouse who did not know about the existence of circumstances preventing marriage;

· Prosecutor;

· Guardianship and trusteeship authorities.

A marriage can only be declared invalid by a court.

A statement of claim to declare a marriage invalid is filed by the interested party in the district court at the location of the defendant. A sample claim can be found at the end of the article.

The limitation period does not apply to a claim to declare a marriage invalid (Article 9 of the RF IC).

A marriage is declared invalid from the date of its conclusion.

Consequences of declaring a marriage invalid

The consequences of declaring a marriage invalid are listed in Art. 30 IC RF. The general legal effect of declaring a marriage void is that the marriage is deemed to have never existed. Consequently, the spouses do not have any personal or property rights arising from the marriage. Thus, there is no right to have a common surname, rights to alimony, rights to part of the joint property, etc. The marriage contract, if after its signing the marriage was declared invalid, is also declared invalid.

But the recognition of the marriage as invalid does not in any way affect the rights of children born in such a marriage. Children have the right to child support, the right to communicate with both parents and other rights provided by law.

However, there are circumstances listed in Art. 29 of the RF IC, which eliminates the invalidity of marriage. That is, if the parties who entered into a fictitious marriage started a family before the court made a decision, their marriage cannot be declared invalid due to its fictitiousness. Or if the circumstances that prevented the marriage have disappeared, for example, the minor spouse has reached the age of marriage, or in the absence of consent to the marriage, it was subsequently expressed by the previously disagreeing spouse. That is, in these cases, the marriage is not declared invalid.

Of course, in the case of a marriage between close relatives, or in cases of bigamy or double husbandry, the marriage cannot be recognized as valid.

When making a decision to declare a marriage invalid, the court has the right to recognize the spouse whose rights have been violated by the conclusion of such a marriage (a bona fide spouse), the right to receive maintenance from the other spouse in accordance with Articles 90 and 91 of the RF IC, namely the collection of alimony for the maintenance of a spouse or ex spouse, and in relation to the division of property acquired jointly before the marriage was declared invalid, has the right to apply the provisions established by Articles 34, 38 and 39 of the RF IC, the division of jointly acquired property of the spouses, as well as recognize the marriage contract as valid in whole or in part.

A conscientious spouse, in the event of a marriage being declared invalid, has the right to demand compensation for material and moral damage caused to him according to the rules provided for by civil law, and also to retain the surname chosen by him during state registration of the marriage.

Conclusion

Thus, we have found that the invalidity of a marriage is a form of refusal by the state to recognize a concluded marriage as a legally significant act, expressed in a court decision made in civil proceedings in connection with a violation of the statutory conditions for concluding a marriage, which is essentially a measure protection.

Violation of the legal conditions of marriage, or at least one of them, serves as grounds for declaring the marriage invalid. This is a kind of lever of influence on family relationships, as well as a way of protecting persons who do not want to be deceived, whose rights and interests were violated as a result of such a marriage.

A marriage concluded in violation of legal conditions is recognized by the court as invalid and all the legal consequences associated with marriage.

Basic principles (principles) of family law

• Main directions of state family policy in the Russian Federation

System and sources of family law

• Sources of family law

Grounds for applying civil law and international law to family relations

• Application of international law to family relations

Exercise and protection of family rights

• Protection of family rights
• Ways to protect family rights

Limitation periods in family law

The concept of marriage. Conditions and procedure for its conclusion. Nullity of marriage

• Concept of marriage under family law
• Conditions for marriage. Obstacles to marriage
  • Obstacles to marriage
• Medical examination of persons entering into marriage
• Marriage procedure
• Nullity of marriage
  • Persons who have the right to demand that a marriage be declared invalid
  • Circumstances eliminating the invalidity of a marriage
  • Legal consequences of declaring a marriage invalid

End of marriage

• Concept and grounds for termination of marriage
• Divorce in the registry office
  • Divorce in the registry office at the request of one of the spouses
• Divorce in court
  • Divorce in court with mutual consent of the spouses to dissolve the marriage
  • Divorce in court in the absence of consent of one of the spouses to divorce
  • Issues resolved by the court when making a decision on divorce
• The moment of termination of marriage upon its dissolution
  • Legal consequences of divorce
• Restoration of marriage in the event of the appearance of a spouse declared dead or recognized as missing

Rights and responsibilities of spouses

• Personal non-property legal relations between spouses
• Property relations between spouses
• Legal regime of marital property
  • Possession, use and disposal of common property of spouses
  • Property of each spouse (separate property)
  • Division of common property of spouses
• Contractual regime of marital property
  • Change and termination of the marriage contract
  • Invalidation of a marriage contract
• Responsibility of spouses for obligations

Rights and responsibilities of parents and children

• Establishing the origin of children
  • Voluntary establishment of paternity
  • Establishing paternity in court
  • Legal consequences of voluntary or judicial establishment of paternity
  • Entry of the child's parents in the birth register
  • Challenging paternity (maternity)
• Rights of minor children
  • Personal non-property rights of minor children
    • The child’s right to express his or her opinion
    • The child’s right to a first name, patronymic and last name
  • Property rights of minor children
• Rights and responsibilities of parents
  • Exercise of parental rights by minor parents
  • Rights and responsibilities of parents regarding the upbringing and education of children
  • Rights and responsibilities of parents to protect the rights and interests of children
  • Parents' right to protection of parental rights
  • Exercise of parental rights by a parent living separately from the child
• Disputes related to raising children
  • Participation of the guardianship and trusteeship authority in court consideration of disputes related to the upbringing of children
  • Execution of court decisions in cases related to raising children
• Deprivation of parental rights and their restoration
  • Restoration of parental rights
• Restriction of parental rights and its cancellation
  • Cancellation of restrictions on parental rights
  • Immediate (pre-trial) removal of a child from his parents

Alimony obligations of family members

• General characteristics of alimony obligations
• Maintenance obligations of parents and children
  • Amount of alimony for minor children collected in court
  • Responsibilities of parents for the maintenance of disabled adult children
  • Participation of parents in additional expenses for children
  • Responsibilities of adult children to support their parents
  • Participation of adult children in additional expenses for parents
• Alimony obligations of spouses and former spouses
  • Alimony obligations of former spouses
  • Release of a spouse from the obligation to support the other spouse or limitation of this obligation for a period
• Alimony obligations of other family members
  • Responsibility of pupils to support their actual teachers
  • Responsibilities of grandparents for the maintenance of grandchildren
  • Responsibilities of brothers and sisters for the maintenance of their minor and disabled adult brothers and sisters
• Agreements on payment of alimony
  • Form of agreement on payment of alimony
  • The procedure for concluding, executing, changing, terminating and invalidating an agreement on the payment of alimony
  • Contents of the alimony agreement
  • Indexation of the amount of alimony paid under an alimony agreement
• Procedure for payment and collection of alimony
  • Deadlines for applying for alimony
  • Collection of alimony until the dispute is resolved by the court
  • Obligation of the administration of the organization to withhold alimony
  • Foreclosing on the property of a person obligated to pay alimony
  • Determination of alimony debt
  • Grounds for exemption from payment of alimony debt
  • Inadmissibility of offset and reverse collection of alimony
  • Indexation of alimony
  • Payment of alimony in the event of a person obligated to pay alimony leaving for a foreign country for permanent residence
  • Responsibility for late payment of alimony
• Changing the amount of alimony established by the court and exemption from its payment
• Termination of alimony obligations

Forms of raising children without parental care

• Identification and placement of children left without parental care
  • Guardianship and trusteeship authorities
  • State data bank on children left without parental care
  • Forms of placement (upbringing) of children left without parental care
• Adoption of children and its cancellation
  • Registration of children subject to adoption and persons wishing to adopt children
  • Persons entitled to be adoptive parents
  • Terms of adoption
  • Adoption procedure
  • Issues resolved by the court when adopting a child
  • Legal consequences of adopting a child
  • Grounds, procedure and legal consequences of cancellation of adoption
• Guardianship and trusteeship of children
  • Guardianship and trusteeship of children in educational, medical institutions and social protection institutions
  • Rights of children under guardianship (trusteeship)
  • Rights of children left without parental care and in educational institutions, medical institutions and social protection institutions
  • Rights and responsibilities of a child's guardian (trustee)
• Adoptive family
  • Contents of the agreement on the transfer of a child (children) to a foster family
  • Rights and responsibilities of adoptive parents
  • Rights of a child(ren) placed in a foster family
  • Financial support for a foster family

Application of family law to family relationships involving foreign persons and stateless persons

• Grounds for applying the norms of foreign family law to family relations
• Legal regulation of marriage and divorce involving foreign citizens and stateless persons
  • Invalidity of a marriage concluded on the territory of the Russian Federation or abroad
  • Divorce between citizens of the Russian Federation and foreign citizens
• Legal regulation of personal non-property and property relations of spouses in the presence of a foreign element
• Legal regulation of personal non-property and property relations between parents and children and other family members in the presence of a foreign element
• Legal regulation - adoption in the presence of a foreign element
• Establishing the content and limiting the application of foreign family law norms
  • Limitation of the application of foreign family law norms

Nullity of marriage

In accordance with Art. 27 of the Family Code, a marriage entered into in violation of the conditions and (or) in spite of the obstacles provided for in Art. 12-14 and paragraph 3 of Art. 15 of the IC, as well as a marriage entered into without the intention of the spouses or one of them to start a family (the so-called fictitious marriage).

Every marriage registered in accordance with the procedure established by law is assumed to be legally completed, i.e. valid. Therefore, before a marriage is declared invalid, it exists with all the ensuing legal consequences. A marriage can only be declared invalid by a court.

Until the court makes a decision to recognize a marriage as invalid, the persons involved in it are considered spouses with corresponding mutual rights and obligations. All legal consequences of marriage are annulled only on the basis of a court decision declaring the marriage invalid. No other body other than the court has the authority to consider a case of declaring a marriage invalid. The court recognizes a marriage as invalid through a claim proceeding.

The presumption of the validity of a marriage concluded in accordance with the procedure established by law did not raise doubts both in the theory of Soviet family law and in modern legal literature. In recent decades, the point of view on the recognition of marriage as invalid as a sanction for violations of family law committed by the married persons (or one of them) has not changed.

A specific list of grounds for declaring a marriage invalid is defined in paragraph 1 of Art. 27 IC, is exhaustive and is not subject to broad interpretation.

TO grounds for declaring marriage invalid the following circumstances apply:

1. lack of mutual voluntary consent of a man and woman entering into marriage;
2. failure of married persons (or one of them) to reach marriageable age, if it has not been reduced in accordance with the procedure established by law;
3. the presence of the married persons (or one of them) of another undissolved marriage;
4. marriage between close relatives; marriage between the adoptive parent and the adopted child;
5. marriage between persons, at least one of whom has been declared incompetent by a court due to a mental disorder;
6. concealment by one of the persons entering into marriage of a sexually transmitted disease or HIV infection;
7. entering into a fictitious marriage, i.e. if the spouses or one of them registered a marriage without the intention of starting a family.

To declare a marriage invalid, it is sufficient to confirm in court one of the listed grounds, although in practice a combination of them may be present. Let's look at them in more detail.

Absence of mutual voluntary consent of a man and woman entering into marriage, is often referred to in the theory of family law, by analogy with civil law, as a vice of the will during marriage. Defect of will during marriage can be due to various reasons, the main of which, as a rule, include those provided for in Art. 28 IC circumstances: coercion into marriage (use or threat of use of physical or mental violence); deception; delusion of the person entering into marriage (misconception about the identity of the future spouse and the circumstances of the marriage that are of significant importance), the inability of the person at the time of marriage due to his condition to account for his actions and manage them (drug or alcohol intoxication, serious illness) .

In particular, in judicial practice, a marriage is recognized as invalid if consent to its conclusion was given by a person who at that time, due to a painful condition, could not account for and manage his actions, and upon recovery did not continue the marital relationship. In cases of this category, the court may order a forensic psychiatric examination (in order to determine the person’s ability to account for his actions and manage them upon entering into marriage) or a forensic psychological examination (in order to identify the characteristics of mental processes and the person’s state that would allow draw a correct conclusion about his ability to understand the actual content of the committed action in the form of marriage and the ability to volitionally control it) in order to prove the presence of a defect of will as a legally significant circumstance when entering into marriage.

For declaring a marriage invalid, the specific reasons that determined the lack of mutual voluntary consent of the man and woman entering into marriage (coercion, deception, delusion, inability of a person to account for his actions and manage them when concluding a marriage) are not essential, since in any of the above cases, regardless of its specific manifestations, there is a discrepancy between the formal expression of the will and the actual will of those entering into marriage or an erroneous expression of the will of those entering into marriage, i.e. the established Art. is violated. 12 IC condition of voluntary marriage.

Another basis for declaring a marriage invalid is failure of the persons entering into marriage (or one of them) to reach marriageable age at the time of marriage, if it has not been reduced in accordance with the established procedure by a local government body. State registration of a marriage with a person who has not reached the marriageable age and does not have a local government decision to reduce it may be the result of both violations on the part of the registry office employees and deception on the part of the persons entering into marriage (for example, false information about age is provided ).

The recognition of marriage as invalid in this case is predetermined by the interests of the minor spouse. Therefore, in accordance with paragraph 2 of Art. 29 of the Family Code, the court may refuse a claim to invalidate a marriage concluded with a person under marriageable age if the interests of the minor spouse so require (for example, a minor wife is pregnant or has given birth to a child), as well as in the absence of his consent to invalidate the marriage.

The unconditional grounds for declaring a marriage invalid are violations of the provisions of Art. 14 IC requirements on obstacles to marriage. First of all, they include marriage between persons, at least one of whom is already in another registered marriage, which violates both the direct prohibition of the UK and the principle of monogamy (monogamy), according to which a man and a woman have the right to be in only one registered marriage at a time. Violation of the principle of monogamy (often found in judicial practice) is the basis for declaring a marriage invalid.

In all cases, only the second marriage is considered invalid, i.e. subsequent. However, it should be borne in mind that if this basis has disappeared by the time the court considers the case on declaring the marriage invalid due to the termination of the previous marriage (dissolved in the registry office or in court), then, as follows from paragraph 1 of Art. 29 of the IC, a subsequent marriage may be recognized by the court as valid.

The basis for recognizing a marriage as invalid is the marriage between close relatives (relatives in direct ascending and descending lines, as well as between full and half brothers and sisters) or the marriage between adoptive parents and adopted children, since their relationship, according to Art. 137 of the IC are equated to the relationship between parents and children by origin (unless the adoption is canceled in accordance with the procedure established by Articles 140-144 of the IC). Cases of declaring a marriage invalid on these grounds are almost never found in judicial practice. However, even if a marriage between close relatives is concluded, it cannot be recognized by the court as valid under any circumstances.

It is noteworthy that violation of the marriageable age, bigamy (bigamy), marriage between close relatives could be considered by the church authorities in Russia as grounds for declaring a marriage invalid or for dissolving a marriage back in the 18th century.

A marriage is recognized as invalid if it was concluded between persons, at least one of whom is recognized by the court as incompetent due to a mental disorder in the manner established by civil procedural legislation. An incapacitated person cannot understand the meaning of his actions or direct them and, therefore, is not able to express his informed will to enter into marriage.

At the same time, it is possible that after marriage, this person, due to recovery, is recognized by the court as capable and consciously expresses his will to continue the marriage, and therefore the circumstance that is the basis for declaring the marriage invalid has disappeared. In this case, the court, according to Art. 29 The IC can recognize such a marriage as valid.

Another basis for declaring a marriage invalid in accordance with paragraph 1 of Art. 27 of the IC is the concealment by one of the persons entering into marriage of a sexually transmitted disease or HIV infection, but not the very fact of the presence of such a disease in one of the spouses. If the person entering into marriage did not hide the fact of his venereal disease or HIV infection, then there is no basis for declaring the marriage invalid.

Thus, what has legal significance is not the presence of one of these diseases in a spouse, but the fact that he concealed it upon marriage, since in this case the health (and sometimes the life) of the other spouse and the unborn child is jeopardized. In addition, infecting another person with a sexually transmitted disease by a person who knew that he had this disease, as well as knowingly putting another person at risk of contracting HIV infection is a criminal offense.

Especially in paragraph 1 of Art. 27 of the IC identifies such a basis for recognizing a marriage as invalid as the fictitiousness of the marriage. A fictitious marriage is one entered into without the intention of the spouses (one of them) to start a family, but only for the purpose of taking advantage of the rights and benefits of a property or other nature arising from it (the right to living space, the right to register at the spouse’s place of residence, the right to the spouse’s property in the event his death, the right to a pension, etc.).

Therefore, the external expression of the will of the persons entering into marriage (or one of them) in such situations does not correspond to its internal content and the true intentions of the doctors (or one of them). In this regard, in the legal literature, the legal nature of a fictitious marriage is compared with the legal nature of a fictitious transaction, since in both cases certain legal actions are performed without the intention of causing corresponding legal consequences, i.e. marriage is just for show, without the intention of starting a family. In the theory of family law, it is recognized as necessary to distinguish the concept of a fictitious marriage from the so-called failed marriage, as well as from a marriage of convenience, although the law does not mention such marriages. A “failed marriage” is a marriage concluded in violation of the rules (procedures) for its registration (for example, a marriage was registered in the absence of one of the spouses, in absentia, through an authorized person, upon presentation of someone else’s passport, etc.).

A “failed marriage” does not legally exist and therefore does not need to be declared invalid. The civil registration of such a marriage is canceled on the basis of a court decision made at the request of the interested person (Article 75 of the Civil Status Law). A “marriage of convenience” is a marriage concluded, albeit for certain selfish reasons on the part of one or both spouses, but with the unconditional actual purpose of creating a family, whereas when concluding a fictitious marriage, such a goal is completely absent.

Despite the fact that “marriage of convenience” has a negative assessment in society, it cannot be declared invalid, since it is aimed not only at obtaining some benefits (material, social, etc.), but also at establishing marital rights and responsibilities.

Cases on declaring a marriage invalid on the basis of a fictitious marriage are not uncommon in judicial practice. Moreover, a marriage can be recognized as fictitious either if there is no goal of creating a family for both persons entering into marriage, or if one of the spouses does not have such a goal. From the point of view of proof, cases of fictitious marriage present significant difficulties for the court, especially when only one of the spouses had no intention of starting a family, since this unscrupulous spouse creates the appearance of a family for a certain time, and having received what he wanted (the right to register at the spouse’s place of residence , the right to use residential premises, etc.), dramatically changes his behavior (demands for divorce, division of living space).

The fictitious nature of a marriage can be proven by any evidence permitted by civil procedural legislation, including the testimony of witnesses. The court is obliged to evaluate all the evidence available in the case related to the marriage (duration of the parties being married; joint management of a common household or its absence; the presence or absence of children in the marriage and the reasons for this fact; direct evidence of a fictitious marriage; other significant circumstances).

The question of whether a marriage is fictitious must be decided by the court on the basis of a thorough, comprehensive study of all the circumstances of the case and an assessment of the collected evidence. A marriage can be declared invalid by a court only if it is proven that the marriage was registered by the spouses or one of them without the intention of starting a family.

Thus, a characteristic feature of a fictitious marriage is the fact that it is concluded without the intention of creating a family, since the persons entering into it (or one of them) have as their goal the receipt of certain benefits or advantages of both a property and non-property nature.

In accordance with paragraph 3 of Art. 29 of the Family Code, a marriage cannot be recognized as fictitious if the persons who entered into it actually created a family before the case was considered by the court, i.e., despite the initial intentions, a marital relationship nevertheless developed between the parties.

Any other circumstances not directly provided for in paragraph 1 of Art. 27 of the Family Code (for example, silence by one of the persons entering into marriage about the presence of children or the inability to have them for health reasons, concealment of an illness (with the exception of venereal or HIV infection), or violation of the requirements established by law for the procedure for concluding a marriage (for example, registration of marriage before the expiration of a month from the date of submission of the application to the registry office, unless this period has been reduced in Russia in the manner provided for in paragraph 1 of Article 11. In such cases, it is only possible to raise the issue of ending the marriage on the initiative of the spouse (spouses).

As already noted, a marriage can be declared invalid only by a court in civil proceedings, i.e. at the claim of eligible persons specified in Art. 28 SK. In practice, there are cases of filing claims in court with the plaintiff putting forward two demands: to declare the marriage invalid and to dissolve the marriage. Simultaneous presentation of such demands by a party is impossible.

Nevertheless, the court has the right to consider in one proceeding both the interrelated demands of the spouses for the dissolution of the marriage and for its recognition as invalid (here, each of the spouses puts forward an independent demand: one for the dissolution of the marriage, the other for the recognition of the marriage as invalid, or vice versa).

It should also be borne in mind that, according to paragraph 4 of Art. 29 of the Family Code, a marriage cannot be declared invalid after its dissolution (both in court and by the registry office), except in cases where the validity of the marriage is disputed on the grounds of the presence between the spouses of a degree of kinship prohibited by law or the condition of one of them at the time of state registration marriage in another undissolved marriage.

The requirement to recognize a marriage as invalid is not subject to a statute of limitations, except in the case expressly provided for by the UK: when one of the persons entering into a marriage concealed the presence of a sexually transmitted disease or HIV infection from the other person. The claim of a spouse whose rights are violated by the conclusion of such a marriage is subject to the statute of limitations established by Art. 181 Civil Code, i.e. one year from the day the spouse learned or should have learned about the other spouse’s concealment of a sexually transmitted disease or HIV infection upon marriage.

The operative part of the court decision on declaring a marriage invalid indicates the time of state registration of the marriage, the number of the registration record of the marriage and the name of the registry office that registered the marriage. In Art. 27 of the IC establishes the obligation of the court, within three days from the date of entry into legal force of the court decision to recognize the marriage as invalid, to send an extract from this court decision to the registry office at the place of state registration of the marriage.

In turn, the registry office, upon receipt of an extract from the court decision in accordance with Art. 75 of the Law on Civil Status Acts must cancel the record of the marriage act, making an appropriate note in it indicating when and by which court the decision was made to declare the marriage invalid. In the identity document of the former spouse, the registry office that annulled the entry makes a corresponding note, which is certified by the official’s signature and seal.

A marriage is declared invalid from the date of its conclusion (clause 4 of Article 27 of the Family Code), and not from the date of the court’s decision. Thus, marriage legal relations, and therefore the rights and obligations of spouses, are canceled from the moment of marriage due to the retroactive effect of a court decision declaring the marriage invalid.

In accordance with Art. 27 of the RF IC, a marriage is declared invalid if it is concluded in violation of the conditions established by Art. 12-14 and paragraph 3 of Art. 15 of the RF IC, as well as in the case of a fictitious marriage.

To declare a marriage invalid, the presence of at least one of the following conditions is sufficient:

lack of mutual consent among those entering into marriage;

the existence of an undissolved marriage;

marriage with a person declared incompetent,

marriage with a person under marriageable age (unless the age is reduced in accordance with the procedure established by law),

marriage with a close relative;

marriage of the adoptive parent with the adopted child;

concealment of sexually transmitted diseases or HIV infection,

fictitiousness of marriage.

A marriage can only be declared invalid by a court.

A marriage declared invalid is considered as such from the moment of its conclusion, and not from the moment of the court decision (clause 4 of article 27 of the RF IC). It does not give rise to the rights and obligations of spouses provided for by family law. With the recognition of the marriage as invalid, the spouse loses the right to bear the surname of the other spouse, adopted by him during registration. Property acquired during marriage is not subject to the marital community regime, but the rules of the Civil Code of the Russian Federation on shared ownership are applied. The annulment of the marriage entails the termination of alimony obligations, and the marriage contract becomes invalid. However, the law makes an exception for the spouse whose interests were violated by the conclusion of an invalid marriage (the bona fide spouse). A bona fide spouse has the opportunity to receive maintenance from the guilty spouse; in relation to jointly acquired property, the court has the right to apply the provisions of the RF IC on the division of jointly acquired property by spouses, as well as to recognize the marriage contract as valid in whole or in part in relation to this spouse. In addition, a conscientious spouse has the right to demand from the guilty spouse compensation for property and moral damage in accordance with the rules of civil law. A conscientious spouse is given the right to retain the surname chosen by him when registering the marriage.

Recognition of a marriage as invalid never affects the rights of children born in such a marriage or within three hundred days from the date the court decision entered into legal force. In this case, the father of the child is considered to be the person who was in an invalid marriage with his mother, unless otherwise proven (Clause 2 of Article 48 of the RF IC). A child, like one born in a valid marriage, has the right to receive alimony.

End of marriage

The Family Code of the Russian Federation establishes that a marriage can be terminated in two ways: by the death of one of the spouses and by divorce. Death of one of the spouses. The union of a man and a woman united in marriage does not arise for any specific period, but, as a rule, for the entire life of the spouses. Therefore, the death of one of them naturally ends this union. Similar consequences occur if the court declares one of the spouses dead. The Civil Code of the Russian Federation provides that a person can be declared dead if he has been missing from his place of permanent residence for at least five years and it is impossible to eliminate the uncertainty of his absence (Article 45 of the Civil Code of the Russian Federation). The law does not connect the declaration of a person as deceased with the fact that he is declared missing. The court's decision to declare a person dead is not based on the reliable fact of death, but on the assumption that such a long absence can only be explained by the death of the missing citizen (clause 8 of Article 247 of the Code of Civil Procedure of the RSFSR). The Civil Code of the Russian Federation does not provide for any specific consequences of declaring a citizen dead. The consequences are identical to those that occur upon the death of a citizen: the marriage is terminated, an inheritance is opened in the property of the person declared deceased, and his personal obligations are terminated.

Divorce.

A marriage is dissolved at the request of one or both spouses. In some cases, if required to protect the interests of the incapacitated spouse, a claim for divorce may be brought by his guardian. Other persons do not have the right to demand a divorce. The law limits the possibility of free divorce during a woman’s pregnancy and within a year after the birth of a child (Article 17 of the RF IC). During this period, the husband cannot initiate divorce proceedings without the consent of his wife. This rule also applies to cases where the child was stillborn or did not live to be one year old 6 . If there is no consent of the wife, the court refuses to accept the statement of claim or terminates the proceedings.

The case is also subject to termination in the case where the woman first agreed to initiate a case in court at the request of her husband, and subsequently began to object to the divorce during the trial. During this period, a woman can file a claim for divorce at any time.

Divorce by the Civil Registry Office. A marriage is dissolved by the civil registry office or in court (Article 18 of the RF IC).

The registry office authorities are competent to terminate the marriage of spouses who have expressed mutual consent to divorce and do not have common minor children (Clause 1 of Article 19 of the RF IC). The spouses jointly submit a corresponding application to the registry office, which sets out the specified motives and facts. It is unacceptable to apply to the registry office only if there are common minor children of the spouses, but not children of each of them from previous marriages. Persons adopted by both spouses are equated to children by origin (Article 137 of the RF IC), which prevents divorce through the registry office. The issue is resolved in a similar way when one spouse adopted the child of the other spouse from a previous marriage. The registry office never resolves disputes about the division of property. in some cases, the registry office dissolves a marriage at the request of one of the spouses, regardless of whether they have common minor children. The list of such situations is provided in Art. 19 of the RF IC: this occurs when there are already previously issued judicial acts recognizing the other spouse as missing, or incompetent, or sentenced for committing a crime to imprisonment for a term of over three years. Copies of these acts are attached to the application. The guardian of the incapacitated spouse and the spouse serving a sentence must be notified of the filing of the application, but their consent to the divorce is not required.

Divorce in the registry office and the issuance of a certificate is carried out after 1 month from the date of filing the application. The law does not provide for the possibility of either reducing or increasing this period. However, the possibility of postponing the registration of divorce at the request of the spouses if they have valid reasons is not excluded. In this case, the divorce will be registered on the day of their appearance. When filing an application for divorce, both spouses must be present at the registry office (except for the cases listed in paragraph 2 of Article 19 of the RF IC). If one of the spouses cannot appear at the registry office to submit an application, then they draw up a separate application, certified by a notary (Article 33 of the Federal Law “On Acts of Civil Status” dated February 15, 1997). Divorce is carried out in the presence of at least one of the spouses. If the spouses do not appear at the registry office to register the divorce, their application for divorce is considered not to have been filed. When resubmitting an application, the period that has expired since the submission of the first application is not taken into account and a new one-month period begins to run.

A marriage dissolved in the registry office is terminated from the date of the entry in the civil registration book.

In the event of the appearance of a spouse declared dead or recognized by the court as missing, the corresponding court decisions are canceled, and the marriage can be restored by the registry office upon a joint application of both spouses, if before that time they have not entered into a new marriage (Article 26 of the RF IC).

Divorce by court. The Family Code of the Russian Federation provides that if there are property disputes between spouses dissolving a marriage through the registry office, then they must be considered in court (Article 20 of the RF IC).

Divorce of marriage falls within the competence of the court:

• if spouses have common minor children (exceptions are provided for in Article 19 of the RF IC);

  if one of the spouses does not agree to divorce;

  when one of the spouses evades divorce from the registry office, namely: refusal to submit an application, unwillingness to appear at the registry office for a divorce, etc. (Article 21 of the RF IC).

If the defendant does not consent to divorce, the court must find out the reasons for the divorce. In this case, the court has the right to try to reconcile the spouses directly at the meeting or, for the same purpose, to postpone the hearing of the case. The court carries out such actions both at the request of the parties and on its own initiative. The postponement of the proceedings may be repeated, but within the period specified by law. Moreover, the court's ruling to postpone the proceedings, since it does not block the possibility of further progress, is not subject to cassation appeal. The law establishes a three-month period for reconciliation between spouses. Taking into account specific circumstances, the court, at the request of the spouses or one of them, has the right to change the period given to them for reconciliation and consider the case before its expiration. If reconciliation measures do not produce positive results and the spouses (or one of them) insist on divorce, the court is obliged to dissolve the marriage. Thus, the final decision on maintaining or terminating a marriage relationship is considered by the legislator as a personal matter for each of the spouses, which corresponds to the principle of voluntariness of a marriage between a man and a woman (Article 1 of the RF IC), from which follows the freedom to dissolve this union.

Simultaneously with the consideration of the issue of divorce, the spouses may submit to the court an agreement on which of them the minor children will live with, on the procedure for payment and the amount of funds for the maintenance of children, a disabled spouse in need, and on the division of the common property of the spouses. If such an agreement does not exist or violates the interests of the children, the court is obliged to determine which parent the minor children will live with after the divorce, establish the amount of money to be recovered for the maintenance of the children, as well as from which parent it should be recovered. It should be emphasized that in this situation the court acts on its own initiative, without waiting for the corresponding requests of the participants in the process and even contrary to their objections and expressions of will. The court divides jointly acquired property only at the request of the spouses or one of them. If the division of property affects the interests of third parties, the court separates the requirement for division of property into separate proceedings. Similarly, only at the request of a disabled spouse in need, the court determines the amount of support received from the other spouse.

A marriage dissolved in court is considered terminated from the day the court decision enters into legal force. Divorce in court is subject to state registration with the civil registry office. Spouses do not have the right to enter into a new marriage until they receive a certificate of divorce (Article 25 of the RF IC).

Rights and responsibilities of spouses

Personal non-property rights and obligations. Personal rights are closely related to the personality of the spouses, are inseparable, and cannot be alienated. Transactions aimed at limiting the rights of spouses are declared invalid. No one can be limited in legal capacity and legal capacity otherwise than in cases and in accordance with the procedure established by law. Even a partial renunciation of legal capacity and capacity by a citizen is unacceptable; such transactions are void (Article 22 of the Civil Code of the Russian Federation). The law refers to personal right for spouses to choose a surname upon marriage and divorce, jointly solving all the problems of family life, including issues of upbringing and education of children, free choice of occupation, profession and place of residence,giving consent to adoption etc. (Articles 31, 32 of the RF IC). Spouses have the right to choose a surname. They can, if they wish, choose the surname of one of them (husband or wife) or retain their premarital surnames (Article 32 of the RF IC). This issue is resolved only by persons entering into marriage without any coercion. Traditionally, in practice, the wife takes her husband's surname, but for various reasons it happens the other way around. In most cases, the husband and wife have a common surname, and children born in the marriage receive the same surname. The choice of a surname is allowed only at the time of marriage registration. An entry made in the register books can be changed, but in a general manner on the basis of Art. 58-63 of the Federal Law “On Acts of Civil Status” of November 15, 1997. The issue will be resolved similarly if, during registration, one of the spouses wished to keep the premarital surname, and then made a different decision, or when one spouse adopted the surname of the other, but after some time time he wished to return to his premarital surname. A change of surname by one spouse does not automatically change the surname of the other spouse. If this surname was common to the spouses, then the other spouse has the right to change his surname to the new surname of the spouse. The general procedure will also apply.

In accordance with Art. 32 of the RF IC, when registering a marriage, a spouse can combine his own surname and that of his spouse, thereby acquiring a double surname. However, if the spouse already has a double surname, then joining is excluded. The problem of changing surnames also arises when registering a divorce (Clause 3, Article 32 of the RF IC). A spouse who has adopted the surname of the other spouse has the right to keep it after a divorce or return to the premarital surname.

The right of spouses to jointly resolve family issues is broad in content and covers almost all areas of family life:

• housekeeping;

  raising and educating children, caring for their physical health and mental development;

  acquisition of property, procedure for using and disposing of it, etc.

Issues should be regulated on the basis of mutual respect and mutual assistance, promoting the strengthening of the family, in conditions of complete equality of rights and responsibilities of spouses (Clause 2 of Article 31 of the RF IC), without providing for the advantages of any of them. Each of the spouses is free to choose their occupation and profession (Clause 1, Article 31 of the RF IC), i.e. has the opportunity to independently choose an occupation or profession for himself, guided only by his desires and his inclinations. Objections and various kinds of prohibitions of the other spouse have no legal significance. A spouse can only give advice or a recommendation, but does not have the right to prohibit the other spouse from acting as he or she wishes. Free choice of place of residence means that when one of the spouses changes place of residence, the other does not have a legal obligation to follow him. Therefore, any obligations given by one spouse to the other, for example, to travel with him when transferred to work in another area, are void. Russian legislation, while guaranteeing the right of each spouse to freely choose their place of residence, simultaneously stimulates their cohabitation. Thus, the place of residence of minor children and their parents coincides. The same goal is pursued by the norms of housing legislation on providing living space for families, providing benefits for utility bills, taking into account the total family income, paying money when a spouse moves to another area for permanent work and residence, taking into account members of his family, etc. Other personal non-property rights include the right of a spouse to give consent to the adoption of a child by another spouse if the child is not adopted by both spouses (Article 133 of the RF IC); for the adoption into a family of children left without parental care (Article 151 of the RF IC), for raising children, divorce, etc.

The personal rights of each spouse correspond to the duties of the other spouse of a personal non-property nature. The Family Code sets out the following personal responsibilities of spouses:

• build your family relationships on the basis of mutual respect and mutual assistance;

  promote the well-being and strengthening of the family;

  take care of the welfare and development of their children (clause 3 of article 31 of the RF IC).

The listed responsibilities are declarative in nature; the legislator only outlines the model of behavior of spouses in the family. This is understandable, since it is difficult to regulate personal family relationships using legal norms. Spouses must not interfere with each other in the exercise of their personal rights and obligations. The Family Code does not directly provide for sanctions for non-compliance. However, abuse of personal rights and obligations by spouses may be grounds for divorce and, under certain conditions, may lead to property consequences (for example, a decrease in the spouse’s share in the common property upon its division - Article 39 of the RF IC).

The obligation to care for the welfare and development of one’s children has very specific legal features. Thus, parents are obliged to raise their children, take care of their health, physical, mental, spiritual and moral development (Clause 1 of Article 63 of the RF IC). At the same time, parents do not have the right to harm the physical and mental health of children or their moral development. The exercise of parental rights to the detriment of the rights and interests of children entails liability as provided by law.