The Limits of Analogy in Establishing the Legal Consequences of a Fictitious Divorce

Abstract

In the Russian and foreign family legal reality, the practice of inappropriate use of divorces has become widespread. With the general attention of law to fictitious legally significant phenomena in the context of normative uncertainty of the concept, signs and consequences of fictitious divorce, it is necessary to check and take into account the possibilities of analogy as a traditional means of filling legal gaps in private law regulation in relation to the problem of the lack of legislative regulation of the legal consequences of fictitious divorces. At the same time, the method of analogy can and should act not only as one of the objects of study, but also as a means of achieving a scientific result. The study raises and rejects the scientific hypothesis about the similarity of the normatively undefined consequences of the depravity of the causa of a fictitious divorce and the regulated consequences of a fictitious marriage. At the same time, the author shows the positive role of the analogy of law as part of the means of settlement and family law disputes and methods of countering unfair behavior in marriage dissolution without the purpose of its termination. The significance of the work is manifested in its ability to doctrinally support the legislator’s abstinence from direct normative consolidation of the criteria of fictitious divorce and its invalidity. At the same time, the article indicates the way to situationally overcome the uncertainty of the concept under consideration using the analogy of law.