Обязанность взаимной верности супругов. Польская правовая реальность vs лакуна в российском праве

Abstract

The article discusses the evolution of Russian and Polish legislation on the issue of the duty of fidelity of spouses, and also analyses in detail the main approaches of Polish judicial practice and doctrine that reveal the content of the duty of fidelity of spouses. Express fixation of this obligation in statutes and taking into account the guilt for the breakup of family life led to the emergence in Poland of a fairly developed (in comparison with Russia) legal regulation of a very delicate area — the sexual life of married people. Supporting the idea of fidelity as a condition for maintaining two of the three components of joint life in marriage — physical community and spiritual (mental) community, Polish judges have developed a completely workable approach as to how to determine a violation of the duty of fidelity — the concept of appearance of infidelity. The author believes that due to the inefficiency of the moral regulator and the risks of opportunistic behavior in marriage, Russian law should protect the expectations of persons wishing to enter into a “traditional marriage” and should provide the duty of mutual fidelity of spouses expressly. For those who do not accept fidelity, but still consider it necessary to marry, the law may provide for the possibility of excluding this obligation by agreement of the parties.