Marriage. Definition, history of marriage
Marriage is a contract, a promise and simply a vow. Since ancient times, people of different sexes came together in order to continue their family line. This instinctive sense of self-preservation of the race is the main engine for the growth of humanity. The greater the number of people, the more minds and opinions there were, and hence the more progress. Today there are more than 6 billion people living on Earth.
In ancient Egypt, marriage reflected the desire to form a couple in the image of Egyptian deities. In ancient Greece there was even a God of love (Eros; the concept of “erotica” came from this word). With the increase in population on Earth, many questions and problems began to arise. People began to be increasingly divided into nationalities, divided according to religious and other criteria. With the growth of people, the main, according to Marx, engine of labor progress appeared - the division of labor. People began to engage in narrow specialties and began to devote more time to mental work. This began to take a lot of time and new problems appeared before humanity: how to stimulate new unions between men and women. For this purpose, some social guarantees were invented at the state level (later international legal norms appeared that guaranteed newlyweds). In order to know whether people who are not married are trying to take advantage of the guarantees, and also to strengthen confidence in the newlywed, states began to introduce the institution of legalization of marriage.
The legalization of marriage has become simply universal in the civilized world. In France, serious talk about registering marriage began in the late 17th and early 18th centuries. The obligation of a religious marriage ceremony disappears with the Revolution of the 18th century. The law of September 20, 1792 establishes civil marriage , registered at the city hall
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Until the end of the 18th century, marriage was not legalized in Germany. Marriage was registered only on religious grounds. The influence of French law favored the development of civil marriage, since in many territories in western Germany French family law was strongly assimilated into the Roman-Germanic legal system. In the 19th century, the first independent special laws appeared, which, however, operated on the territory of individual lands (Frankfurt, Oldenburg, etc.). The first civil wedding held in Oldenburg took place in 1855 in Varel. The Baptist preacher August Friedrich Wilhelm Hese and Meta Schuette were married at that time. They were called “dissidents” because they did not belong to any of the existing religions at that time. However, not all churches recognized their marriage. But soon civil marriage took precedence over church marriage, and civil marriage was fully introduced into German family law.
What is civil marriage and cohabitation according to the family code?
Laws and regulations do not have a clear interpretation of the concept of official marriage.
It is understood as a union registered and formalized in the relevant authorities. An unregistered relationship may have almost all the signs of an official marriage, but not be one. A man and a woman also live together for a long time in the same living space and raise children, but these relationships are not regulated by law.
Property acquired during an informal relationship not regulated by law is not common and belongs only to the owner. Registration of shared ownership rights in the case of a house or apartment allows you to prevent possible disagreements in the event of separation.
If it is necessary to divide property, cohabitants are forced to prove the fact of cohabitation.
When ending a relationship, men and women have to confirm that they invested their own money to purchase a car, real estate, land, jewelry, etc.
Attention! Marriage has legal force in the case of division of property and inheritance.
Marriage in Russia. Legal aspects
Nowadays, only a marriage that is registered in accordance with the laws of the country where the spouses live is considered an official marriage.
In addition, a marriage that was registered between spouses in another country under the law of the country where it was concluded is considered valid throughout the world. This obligation of each country is spelled out in the basic laws of most states (including Russia: Article 158 of the Family Code of the Russian Federation - hereinafter referred to as the RF IC). Many newlyweds are afraid before marriage that they are making a mistake or are afraid of deception, or maybe they are simply embarrassed by the formality that the other party or one of the relatives insists on. Before entering into marriage, it is necessary to understand the following rights and obligations of spouses.
Regime of use of spouses' property
In accordance with Art. 33 of the RF IC, the legal regime for the property of spouses is valid unless otherwise established by the marriage contract. It means the following:
1. All property that was acquired during marriage from the family budget is recognized as common jointly acquired property, regardless of which spouse the right is registered to (Article 34 of the RF IC);
2. When one of the spouses makes a transaction to dispose of the spouses’ common property, it is assumed that he is acting with the consent of the other spouse (Part 1 of Article 35 of the RF IC). However, in accordance with Part 3 of Art. 35 of the RF IC, in order for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the notarized consent of the other spouse. The spouse, whose notarized consent to carry out the specified transaction was not received, has the right to demand recognition of the transaction as invalid in court within a year from the day when he learned or should have learned about the completion of this transaction;
3. In the event of the death of one of the spouses, the other spouse inherits together with the children of the spouses and the parents of the deceased spouse in the first place (clause 1 of Article 1142 of the RF IC);
4. In addition to jointly acquired property, spouses also share debts (Part 3 of Article 39 of the RF IC).
5. In the event of the termination of a marriage, a spouse who does not have housing and does not have the financial opportunity to buy or rent it, by a court decision, may remain living for a certain period in the residential premises of the wealthy spouse (Part 4 of Article 31 of the RF IC).
For newlyweds, marriage is a new stage of life, filled with new positive, interspersed with negative, emotions. However, as mentioned above, for lawyers, marriage is an agreement, a transaction. Yes, it sounds very unpleasant, but this is how marriage is interpreted by lawyers, judges and registrars.
It’s not for nothing that there are institutions to challenge marriage. Challenging a marriage as a transaction is not easy, but it is still possible.
Civil marriage (actual marriage, cohabitation)
The term civil marriage, which in Russian rumor is used as an actual marriage (cohabitation), is not entirely correct in etymology. A civil marriage, recognized as such by international law, is a marriage that is registered under civil law - through the procedure of its registration in the registry office (civil registry authorities).
The correct name for the so-called civil marriage is de facto marriage or cohabitation. The term cohabitation is originally Russian.
Actual marriage is good for those spouses who do not yet fully trust each other, but have a desire to run a common household.
The advantages of actual marriage include (regardless of the presence of joint children)
— absence of registration red tape; - lack of rights and obligations of spouses in relation to each other; - absence of inheritance legal relations between spouses (but not their joint children); — the ability to make any transactions without the prior consent of the other spouse (including in relation to real estate); - no obligation to support the other spouse; - no need to register this legal fact upon divorce; - one spouse is not responsible to the other for loans taken by him; — the opportunity to represent the interests of the other spouse in any transactions.
The disadvantages of actual marriage include
: - lack of family benefits (including a preferential mortgage loan, as well as the inability to participate in the federal program “Young Family”; - controversial establishment of paternity; - distrust of banks in credit relations; - impossibility of receiving housing subsidies; - impossibility of inheriting after the death of another spouse.
Pitfalls of unregistered relationships
Marriage is a logical continuation of the relationship between two loving people. If a man is in no hurry to lead his beloved to the altar, it means that his feelings are not strong enough to overcome the fear of responsibility for the family, or he does not see a woman as a companion for life. The disadvantages of civil marriage are obvious:
- lack of confidence in your partner;
- instability;
- lack of joint plans for future life;
- It will not be possible to claim alimony from the unofficial husband if the couple has minor children after the separation.
The main disadvantage of such cohabitation is the different views of common-law spouses on their union. Women, even without a stamp in their passport, consider themselves married, but men, on the contrary, think that they are single and do not owe anything to anyone.
Divorce
The aspects of divorce have already been listed to some extent in the previous question. However, we will repeat the most important of them and add something else.
Unlike a civil (actual) marriage, a legal marriage registered with the registry office is subject to dissolution if the spouses or one of them so desire.
No one can prevent the divorce (not even the second spouse). If one of the spouses has expressed a desire to end the family relationship, then the civil registry office (in the absence of minor children) or the court (in the presence of minor children) must dissolve the marriage. However, the court, if it considers it necessary and justified (in practice, very often), may give the spouses time to think (no more than 1 month).
Divorce at the request of one of the spouses, regardless of whether the spouses have common minor children, is carried out at the civil registry office, if the other spouse:
declared missing by the court;
declared incompetent by the court;
convicted of committing a crime to imprisonment for a term of over three years (Article 19 of the RF IC).
The court's consideration of issues regarding minor children (who the children will live with after the divorce, what the amount of alimony will be, what the child's last name will be after the divorce, etc.) is mandatory.
The issue of common property of spouses is not mandatory for consideration by the court. One of the spouses may file a claim with the court for the division of the spouses’ property within three years from the date of registration of the divorce (Part 7 of Article 38 of the RF IC).
Divorce is also possible in the absence of the other spouse, but only in court.
Upon termination of family relations, the spouse who lived during the marriage in the living space of the second spouse may be evicted from the living space by a court decision (Part 4 of Article 31 of the Housing Code of the Russian Federation).
Debts of spouses are also subject to division upon termination.
It is also worth considering that in accordance with Art. 17 of the RF IC, a husband does not have the right, without the consent of his wife, to initiate proceedings for divorce during the wife’s pregnancy and within a year after the birth of the child.
Why do people prefer living together without registering their relationship?
There are three main reasons why people prefer cohabitation or de facto marriage to an official union. In the Russian Federation, every third couple refuses to register their life together; in Europe, for every four cohabitations, there is only one officially registered one. So, for what reasons do people prefer to live together, remaining strangers to each other from the point of view of the law:
- young people gain valuable life experience and conduct a so-called rehearsal before entering into a legal relationship. They get used to each other, look at the partner’s character and understand whether they can get along in the future;
- people feel freedom, nothing holds them together and, if they wish, they can separate at any moment, not burdened with any responsibility to each other. In such a union, as a rule, there is no stereotype that the husband is the head of the family and the main breadwinner in the house, and the wife is a housewife, forced to be at the stove all day;
- For mature people who have already been officially married and divorced, this is an excellent opportunity to avoid repeated problems with divorce.
In any case, cohabitation is a shaky and unstable union. During a long-term cohabitation, some people think about taking out a mortgage while in a civil marriage. However, it will be difficult to prove cohabitation in the event of a breakup, because there is no documentary evidence of the existence of such a union.
From the point of view of lawyers, a joint mortgage in a civil marriage is impossible, since cohabitation is invalid from the point of view of law. But banks, taking into account the popularity of such relationships, are ready to issue a mortgage for both “spouses” who are in an unofficial marriage, even dividing the apartment into shares. How to get a mortgage in such a situation? To do this, you will have to fill out an agreement on behalf of both persons who will be the owners of the property. But how can you get a mortgage if one spouse refuses to sign the documents? In this case, he simply will not have the rights to own this property, and upon separation, the question of how to divide the property will not arise.
Conclusion
Precisely based on the fact that marriage is, in essence, an agreement between persons of different (for now, and, we hope, always in Russia) different sexes to maintain a common joint household for the purpose of having children, as well as mutual assistance to each other. In marriage, both spouses must support each other (not only morally, but also financially - Article 89 of the Family Code of the Russian Federation). Therefore, before you sign a lifelong (hopefully) agreement on mutual assistance, think about whether the assistance will be mutual and whether there is treacherous self-deception behind betrayed feelings.
