Abstract
This article analyzes the political and legal aspects of the first decrees of the Soviet government from 1917 and the codified acts on marriage and family from 1918 and 1926 as large and small “revolutions” in Russian and Soviet family law. These acts put Russia forward into progressive positions in comparison with comparable European and American law of that time. The article analyzes the repressive, “counterrevolutionary” decisions of 1930s and 1940s that pushed family law, particularly in the sphere of marriage and the legal status of children born out of wedlock, back to pre-revolutionary imperial standards. It also reviews the normative legal acts on marriage and the family dating from the “Khrushchev thaw” period. The article identifies the contradictory and conflicting approaches of legal scholars and legislators to the methodology of legal regulation of family relations in different periods of political and social history, as well as in our times. The quality of Russia’s current family legislation, which mainly evolved during the political, economic and social reforms of the late 20th century, is also assessed. The article traces the influence of Soviet family law on the content of similar legislation elsewhere in Eastern Europe and the countries of the former Soviet Union, where there are various levels of legal sovereignty. Their independent legal positions, which are worth comparing with Russia’s family-law doctrine and legislation, are revealed. The article investigates and evaluates both successful and partially unsuccessful attempts of modern Russian legislators to adapt the current Family Code and other federal laws regulating family relations to new challenges in the sphere of marriage and family. It speculates on three tendencies of family law doctrine: a certain adherence to the revolutionary ideas of 1917, an orientation toward a return to traditional family values, and a relatively peaceful coexistence with Western doctrines.
Highlights
This article analyzes the political and legal aspects of the first decrees of the Soviet government from 1917 and the codified acts on marriage and family from 1918 and 1926 as large and small “revolutions” in Russian and Soviet family law
Gadzhyev noted the considerable complexity in resolving the issue under discussion and, inter alia, emphasized the following: 1) the exclusive right of a surrogate mother obviously entails disputes about the child’s destiny; 2) the legislation does not provide a definition of the concept of “the child’s mother,” making it unclear whether the surrogate mother is a mother in the sense in which the Russian Constitution provides protection to motherhood; 35 The wording is very mysterious with regards to family law, since de facto marriage does not have any legal status in Russia, and only spouses or unmarried persons are entitled to adopt a child
The 1917 decrees on marriage and family represented a vivid new revolution in legal regulation of family relations and their basic provisions are by no means exhausted
Summary
One regards the historical events of October 1917 and irrespective of whether they are described as “the (Great) socialist revolution,” “the October upheaval” or “anarchy,” it is an obvious historical fact that this was a time of a supersignificant and super-progressive transformation of the legal status of relations affecting family life: marriage, parenthood and childhood. Those who advocated protection for the interests of de facto spouses insisted that this argument was self-resolving: the stable nature of a family relationship should be the criterion for distinguishing between long-term and casual attachments, and the professional discretion of the courts could be relied upon in each individual case This proved to be the only open – and, by the standards of the time, completely liberal – discussion of the issue; subsequent decades saw no more free public debates until the so-called “thaw” of the early 1960s. Leaving aside a few details, and regardless of the revolutionary fantasies of political and public figures, all the legal positions discussed above represented a genuine systemic breakthrough into a fundamentally new legislation on marriage and the family of the 20th century It had no equivalent in any institutions in Europe, far less in the USA. To enact, to varying degrees, the ideas of freedom of marriage and divorce, equal rights for men and women, and equal treatment of all children, regardless of the circumstances of their birth
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