Norms Of Family Law Research Articles

Implementation of child protection’ constitutional guarantees in the branch legislation

Constitutional guarantees are considered, their impact on the norms of industry legislation in terms of defining and consolidating guarantees in the sphere of labor for children, as well as in connection with motherhood, the presence of children, guarantees enshrined in the norms of family law, as well as some norms of administrative and criminal law. The guarantee nature of constitutional principles in relation to labor relations involving minor workers is substantiated. A classification of guarantee standards in the labor sphere is given. A classification of constitutional guarantees for the protection of children is proposed.

REALIZATION OF THE RIGHT TO INFORMATION ABOUT THE HEALTH STATUS OF THE FUTURE SPOUSE

In the context of the dispositivity of the norms of family law, which enshrine the right of future spouses to undergo a medical examination before marriage registration, law enforcement practice is being formed, which makes it difficult to implement this rule of law. The reason is the absence of authorized entities who are obliged to inform about this right and the procedure for passing a medical examination. The purpose of the article is to identify contradictions in the practice of applying the norms of family law on medical examination of persons entering into marriage and to develop proposals to eliminate them. The subject of the study is the institute of personal rights and freedoms of spouses, which includes a dispositive rule on the right of future spouses to undergo a medical examination. The result of the study is proposals for amendments to family law and legislation in the field of health protection. The novelty of the research lies in the generalization of the practice of legal support for medical examination of persons entering into marriage. Based on foreign and Russian experience, the opinions of the expert community, proposals for amendments to the family legislation of the Russian Federation are formulated. For the science of family law, the article is of interest, since expert positions on key problematic aspects of medical examination are summarized, and the author's point of view on the need to replace the dispositive norm with an imperative norm is substantiated. The component of scientific novelty is the author's assessment of foreign experience in regulating legal norms, based on the belonging of states to the Romano-German or Anglo-Saxon legal systems.

THE QUESTION OF THE NEED TO OBTAIN THE CONSENT OF THE SPOUSE WHEN SELLING THE PROPERTY OF A BANKRUPT INDIVIDUAL

This article addresses the issue of the need to obtain the consent of the spouse (former spouse) when notarizing transactions for the alienation of the bankrupt’s property. The norms of family law, bankruptcy legislation are analyzed, the legal aspects of legal regulation, protection of the property rights of a spouse (former spouse) during the sale of property that is in common joint ownership during the bankruptcy procedure are considered. The author provides evidence that, according to special rules of bankruptcy legislation and established judicial practice, a special mechanism is provided to ensure compliance with the legal rights and interests of creditors and the debtor’s spouse (former spouse).

Implementation of subjective family rights

In a scientific paper, the author explores the concept, principles and limits of the exercise of subjective family rights.
 The concept of the exercise of family rights is defined as the actual actions of subjects of family legal relations, consist in the management of their personal non-property and property subjective rights, which are defined by the norms of family law.
 It is noted that the peculiarities of the exercise of rights by subjects of family legal relations are evident in determining the moment from which the process of implementation of subjective law will begin. Subjects of family legal relations exercise subjective rights independently and at their own discretion.
 In the exercise of family rights, subjects of legal relations are guided by societeoretic principles, ideas that in science have been called «principles of the exercise of subjective rights.»
 The author highlights the basic principles of the exercise of subjective family rights: 1) participants in family legal relations have different subjective rights; 2) rights and obligations exist in connection with the family; 3) subjects of family legal relations exercise their rights freely, at their own discretion, without violating the rights, freedoms and interests of others; 4) the subject of family legal relations may not lose family law; 5) in the exercise of family subjective rights, participants of legal relations must observe the moral foundations of society; 5) the exercise of family rights may take place depending on the nature of the right by one-time, periodic actions or continuous activities.
 An important issue that requires research in the context of the exercise of rights by subjects of family relations is the notion of «limits on the exercise of subjective rights.» As a general rule, participants in family legal relations exercise family rights at their discretion, but this does not indicate absolute freedom in their actions.

Эволюция документирования брачно-семейных отношений в караимских общинах Крыма в XIX – начале XX века (по материалам ГАРК)

One of the most informative accounts of the past of the Karaite communities in the Crimea are the documents related to the regulation of marriage and family relations among the Karaites. Although the Russian authorities integrated the Karaites into the Russian linguistic and cultural space, the communal norms and tenets of the Karaite religion remained unchanged to the second half of the nineteenth century. In the sphere of matrimonial relations, the Karaites were guided by the teachings formulated in the works of the Karaite religious authorities of the Middle Ages and the commentaries to these works by authors from the Modern Period. The Karaite clergy carefully monitored the accuracy of religious rites, the observance of religious canons and the norms of family law. This article examines private legal documents, or Karaite marriage contracts shetar, signed between the representatives of Karaite communities of the Russian Empire, as well as the accompanying materials, which accompanied the process of documenting marital and family relations of the Karaites. Particularly, the author has analysed the peculiarities of their design and structure, as well as the main trends that influenced the transformation of their content, production, and appearance.

ПРАВОВЕ РЕГУЛЮВАННЯ СІМЕЙНИХ ВІДНОСИН, УСКЛАДНЕНИХ ІНОЗЕМНИМ ЕЛЕМЕНТОМ

The article is devoted to the study of the legal regulation of family relations complicated by a foreign element. Emphasis is placed on the definition of "foreign element" in legislation and scientific literature. The methods of regulating family legal relations with a foreign element, which are used in private international law, are singled out. One of the most common of these is the adoption of regulations with relevant conflict rules and the conclusion of bilateral or multilateral agreements between states. International treaties are designed to unify the rules of law governing family relations between citizens of different countries due to the differences between the laws. The content of conventions that accumulate conflicting rules on the regulation of certain areas of family relations, in particular, the Convention on Consent to Marriage, Minimum Age, Registration of Marriage (1962) and the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (1993). The normative legal acts of Ukraine regulating family relations complicated by a foreign element have been studied. Among them, special attention is paid to the Family Code of Ukraine and the Law of Ukraine «On Private International Law». It is established that the Family Code of Ukraine contains norms on the peculiarities of the adoption of children by citizens of Ukraine living abroad and foreigners. The Law of Ukraine «On Private International Law» is a special normative legal act that contains conflicting norms of family law and ensures the realization of the rights and freedoms of citizens. The role of bilateral and multilateral agreements in the field of private law relations in the regulation of family relations between citizens of different states is determined. The content of the Agreement between Ukraine and the Republic of Poland on legal assistance and legal relations in civil and criminal cases is analyzed.

Polish Citizenship of the Parent as a Prerequisite for the Acquisition of Polish Citizenship by Birth (in the Light of the Recent Jurisprudence of the Supreme Administrative Court)

According to Article 14(1) of the Act on Polish Citizenship of 2 April 2009, by operation of law a minor acquires Polish citizenship by birth if ‘at least one of the parents is a Polish citizen’. Likewise, Article 6(1), first sentence, of the formerly applicable Act on Polish Citizenship of 15 February 1962 stipulated as follows: ‘The child of parents, one of whom is a Polish citizen and the other a citizen of another country, acquires Polish citizenship by birth’. Although the latter of the cited provisions remained in effect until 14 August 2012, it is still applied in the jurisprudence of administrative courts due to the need to resolve citizenship of children born while it was in effect. Particularly in recent times the Supreme Administrative Court actively moulds the understanding of the abovementioned legal provisions (especially as regards the term ‘parents’ used therein), proceeding – depending on the child’s birthdate – either based on Article 6(1), first sentence, of the previously applicable Act on Polish Citizenship of 15 February 1962, or on the basis of Article 14(1) of the Act on Polish Citizenship of 2 April 2009. The primary subject of the analysis undertaken in the article are four judgments of the Supreme Administrative Court dated 30 October 2018, which are derived from the approach that: – the issue of acquiring citizenship ‘is exclusively subject to the public law regime’; – ‘norms of family law that indicate the methods of confirming biological kinship between a child and parents’, do not apply to the acquisition of citizenship; – ‘concepts of public law should not be interpreted through the lens of private law principles and norms’.

РАСТОРЖЕНИЕ БРАКА ПО ЗАЯВЛЕНИЮ ОБОИХ СУПРУГОВ ПО ЗАКОНОДАТЕЛЬСТВУ РЕСПУБЛИКИ УЗБЕКИСТАН: ОСОБЕННОСТИ И ПУТИ СОВЕРШЕНСТВОВАНИЯ

In the article, the approach to considering the issues of divorce at the request of both spouses was carried out based on a provision that determines that divorce in the registry office should take into account certain points and directions for the implementation of preventive work to strengthen both the moral and material values of the family. The definition of divorce is given based on the analysis of the norms of the family legislation of the Republic of Uzbekistan, as well as the procedure for dissolution of marriage at the request of both spouses in an administrative manner. The rationale and certain advantages of the divorce procedure in the administrative order, that is, in the registry office, are given. An opinion was expressed regarding the passivity of the registry office in the procedure for dissolution of marriage in the study of the reasons for the desire of spouses to dissolve the marriage. The positive aspects of the use of pre-trial settlement of divorce issues based on the use of the mediation procedure as a method aimed at quick and qualified settlement of disputes between persons dissolving a marriage are considered. The foreign experience of legal regulation of divorce in the administrative order is also considered. Proposals have been formulated to improve the norms of family law governing the state registration of divorce administratively.

LEGAL REGULATION OF MARRIAGE

The present article deals with marriage, as one of the important institutions of family law. With the development of mankind marital relationship have also changed significantly. The article discusses legal nature of marriage and related legal regulations. The article discusses the legal nature of marriage and related regulated to it. Marriage has a centruries-old history and it takes its origin from the birth of mankind. Today the study of the institution of marriage is driven by the needs of society. This instutation can be considered as a livind organism, that requires development and growth. At various stages, the norms of family law have lost their force in modern times. An increase in the needs of society leads to a change in a legal relationship that directly regulates a person’s right to be a member of perfect society. Therefore, marriage is a complex phenomenon built on social relations, which includes legal stages; registration of marriage, rights and obligation of spousec during the marriage, divorce, it can be bodly said, that it is one of the inportant institutions of family law. In this article we try to present the importance of marriage registration and discuss the legal consequences associated with it. It’s fact, that the institution of family law is very broad. Currently our area of interest is legal registration, for which we will analyze the existing legal framework. We will review the court decision and share the practice of foreign countries on this issue.

Applied nature of legal facts in family legal relations

For the analysis of legal facts in family law and their applied role, the criterion may be the degree of compliance of family law norms with generally accepted ideas of justice, good faith, reasonableness, since unfair legislative norms are especially unacceptable in regulating family relations, as factors that determine physical and mental health. health and moral potential of society. Legal facts and their compositions, which determine the emergence, change and termination of relations, play a special role in family law. Combining the norms of family law with social relations that are part of the subject of the branch of family law, legal facts transform social relations into legal ones. Legal facts are essentially the basis for the differentiation of the legal regulation of family relations. The study of this topic is of interest both for rule-making and law enforcement activities, and for the development of the science of family law in general. The law enforcement agency must not only establish all the legal facts necessary to resolve the case, but also properly qualify them. Analyzing judicial practice, the author notes that the problem of establishing the legal nature of law-terminating legal facts requires its scientific solution, taking into account the existing factual or legal circumstance of reality.

REFORMIST VIEWS OF AHMAD DONISH (NINTH AND TWENTIETH CENTURIES)

The relevance of this article lies in the fact that it analyzes the whole spectrum of the system of pedagogical views in the analysis of the stages of creative activity and life of the great thinker and pedagogue of the recent past Ahmad Donish. his biography and rich heritage are a model worthy of imitation and a great school of human education in the context of the formation of a new society. Ahmad Donish’s conceptual positions include humanistic views, enlightenment ideas, calls for the development of science and crafts, protection of human rights, development of family law norms and solving family problems, and labor education. , which has played an invaluable role in improving the upbringing of the new generation. In the works of Ahmad Donish, the philosophy of upbringing is clearly reflected and plays an important role in the preparation of a well-rounded person in society.

“Mutual Assistance” and “Assistance” as a Legal Category and a Principle for the Exercise of Family Rights

Introduction. Traditionally mutual assistance and assistance was considered as moral and ethical categories. The study proposes a different vision of mutual assistance and assistance as legal categories, the principle of exercising family rights and fulfilling duties. Goals and Objectives of the Study: to identify the legal nature of mutual assistance and assistance in family legal relations, based on the work of specialists in various fields of law, examining regulatory legal acts of both international and domestic levels, in which the category of assistance, care, support, care, service, cooperation, in for the exercise of family rights; the ways of implementing the criterion-principle of mutual assistance and assistance in exercising family rights and fulfilling obligations have been identified. Methodological Basis: analysis and synthesis, induction and deduction, argumentation, generalization, historical, comparative legal analysis. Results: mutual assistance and assistance as legal categories and the principle of the implementation of family law are detailed in the norms of family law, are a detail of the principle of humanity (Article 5 of the RF IC), are interconnected with other principles of the exercise of family rights, differ in content from the principle of cooperation in civil law, the family-legal nature of guardianship carried out by family members is highlighted, a number of useful conclusions are drawn for the development of the science of family law and law enforcement. Conclusions: Proposals have been made for the development of Russian legislation in a direction conducive to the development of the institution of the family and its viability.

The concept and legal nature of personal non-property rights of spouses in family law doctrine

The scientific article researches the concept and legal nature of personal non-property rights of spouses in the family law doctrine. In particular, the author notes in the article that the personal non-property rights of spouses are, on the one hand, relations regulated by the norms of family law regarding the personal non-property goods and interests of married persons, on the other hand, they are subjective, natural, those that cannot be transferred to another person, inalienable rights of an immaterial, long-lasting nature that arise and operate from the moment of marriage and are changed or terminated from the moment of dissolution of marriage, namely from the date of registration of the dissolution of marriage, or from the date of entry into force of the court decision on dissolution of marriage. The author defines the following list of signs of personal non-property rights of spouses: they arise from the moment of marriage, registered in the state registration bodies of acts of civil status; are decisive in family relations compared to property relations – other rights of spouses arise from them as derivatives; exercise of these rights is possible subject to agreement with the other spouse and taking into account the interests of the family as a whole; arise in connection with the conclusion of a marriage and can be terminated only in the event of the death of one of the spouses or dissolution of the marriage, recognition of the marriage as invalid, cannot be terminated or changed by agreement of the spouses, and cannot be exhausted as a result of their implementation; the list of personal non-property rights of spouses is determined by national culture, historical traditions, socio-economic conditions, and personal factors; do not have an economic meaning and are not of a property nature; arising from certain intangible assets; closely related to the personality of each of the spouses, inseparable from it and cannot be alienated, just like the goods themselves, in connection with which personal non-property rights and obligations arise; cannot be the subject of a marriage contract; timelessness; exercise of rights in accordance with the moral principles of society; saturation with norms of a moral nature; their inexhaustibility by those rights defined in family legislation.

Typological models of legal regulation of matrimonial relations through the prism of comparative approach in private law

This article outlines a number of typological models of legal regulation of matrimonial relations using the method of comparative-legal analysis. Leaning on the formal-legal approach, analysis is conducted on certain typological models. First and foremost, the author explores the model that is based on inclusion of the norms of family law in the Civil Code. It features two basic modifications that take roots in the reference European codifications of civil law: French (institutional) and German (pandect). Another typological model under review relies on coexistence of the two separate codes within the national legal system: civil and family. The typological distinctness characterizes the model that is based on inclusion of the norms of special statutes dedicated to family law in the Single Civil Code (for example, PRC). The development of family law may take the path of adoption of separate legislative acts (UK, USA). In some instances, federative nature of the country may also affect the development of the system of sources of family law. The countries with pluralistic legal system, either have exclusive jurisdiction over matters of family law (for example, Israel), or stimulate the processes of its modernization through adoption of a special law (for example, India). The author believes that the formal-legal criterion of typology should be correlated with the substantive aspect of the matter. From this perspective, the author highlight the two trends in regulation of matrimonial relations: the first is associated with strengthening of public law principles, while the second is associated with private law principles. The typological model depends on the dynamics of their ratio.

POLYGAMY IN INDONESIA AND ITS RELEVANCE TO THE PROTECTION OF WOMEN AND CHILDREN IN THE PERSPECTIVE OF ISLAMIC LAW PHILOSOPHY

This article discusses the regulation of polygamy in Law No. 1 of 1974 and its derivative rules, as well as the Compilation of Islamic Law with an analysis of Islamic legal philosophy/maqashid al-shari’ah. This research is based on the legitimacy of polygamy as stated in Law Number 1 of 1974 concerning Marriage, article 3, paragraph 2. Polygamy also has rules that require the husband to obtain formal permission from the wife through a court process. Why do the Marriage Regulations regulate this? This research is based on a qualitative descriptive literature review. The method of analysis employed was content analysis, which involved creating an inventory of Indonesian family law norms and analyzing them using the maqashid al-shari’ah theory. This study finds that the regulation of polygamy in Indonesia is carried out to protect women's rights and children's rights. Furthermore, the rule aims to build a happy, peaceful, and prosperous family in the long run (sakinah, mawaddah, wa rahmah). This is in accordance with maqashid al-shari’ah, particularly in terms of soul preservation and descendent preservation.

The second wife: Ambivalences towards state regulation of polygamy in Indonesia

This paper explores how legal and value pluralism creates or constrains space for second wives to express ambivalences towards negative aspects of their unregistered polygamous marriages. It analyses two types of ambivalence toward dominant Muslim family law norms: first, ambivalence toward dominant norms pertaining to the second wives’ status and roles within a polygamous marriage; and, second, ambivalence toward state regulation of Muslim marriage as exhibited within the Indonesian Islamic courts and Offices of Religious Affairs. The three case studies will show how second wives express ambivalence towards their inequal social position to the first wife, lack of support by their husband, social stigma, and lacking marital status. In expressing these ambivalences, they do not engage in oppositional discourses, or “hidden transcripts”, yet show their discontent towards certain aspects of their polygamous marriage while referring to alternative norms. This paper links this ambivalence toward social practice of polygamy to ambivalence on the state level, as exhibited through lenience, accommodation, and facilitation of unregistered polygamous marriage. We believe that an investigation of ambivalence from these two different perspectives is an apt way to uncover the loci where the clash of norm in the context of unregistered polygamy are the most profound.

Раздел совместно нажитого имущества бывших супругов в случае смерти одного из них: правовое регулирование и правоприменительная практика

Introduction: the study of the division of jointly acquired property of spouses and inheritance of property has always been given special attention by the scientists and practitioners. Quite a lot of works are devoted to this area of legal relations. However, it is not so variable and depends on the intricacies of life that there are constantly many issues that require special research and improvement of the legal regulation. The division of jointly acquired property by the spouses at the dissolution of the marriage is regulated by the norms of family law, as well as civil law in the event of the death of one of the former spouses, who do not fully correspond to each other. In this regard, today citizens often face the problems of protecting their property rights. The purpose of the research: to reveal some aspects of the legal regulation and law enforcement practice of protecting the rights of former spouses in the division of jointly acquired property in the event of the death of one of them, and to offer suggestions to help improve the relevant rules. Methods: the methods of scientific cognition are applied together, among which the main ones are the formal-legal, system methods, analysis and synthesis. Results: it is proved that the current system of the legal regulation of division of joint property of the former spouses in the event of the death of one of them requires the improvement of the legal regulation, as laid down in the legislation, the protection of property rights is quite long and expensive, which leads to the futility of efforts. Conclusions: the law enforcement practice of protecting the property rights of former spouses in the division of jointly acquired property should be recognized as generally conforming to the established norms of law. However, the lack of the clear legal regulation of the criteria and conditions for the division of jointly acquired property in the event of opening of an inheritance after the former spouse before the expiration of the threeyear statute of limitations, leads to the situations where 2 spouses will claim the inheritance – the former and the present. This situation leads to costly conflicts that are resolved in court.

SOURCES OF LEGAL REGULATION OF FAMILY RELATIONS IN UKRAINE

With the adoption of the Civil Code of Ukraine (2003) and the Family Code of Ukraine (2002), the process of reforming the family legislation of Ukraine began. The study of sources of family law is relevant and has important theoretical and practical significance. The purpose of the article is to analyze the problems in the sources of legal regulation of family relations in Ukraine. Sources of family law – a set of state and legal, social and legal requirements and legal positions, which regulate family relations and are reflected in such forms as regulations, general principles of family relations, principles of family law, generally accepted principles and norms of international law, international treaties normative legal agreements, legal acts of the European Union, family agreements, legal doctrine, judicial and administrative precedent, case law of the Constitutional Court of Ukraine, the Supreme Court determine the types of sources of family law according to the legal tradition of origin and existence of legal sources in the family legislation of Ukraine, according to the subject of legal regulation, depending on the subject of perception, depending on the action in space, depending on the legal force and the place of the system of sources of law, depending on the primary origin and primary derivative in content. Conclusions. 1. The concept of sources of family law as a special legal category, which denotes a set of state and legal, social and legal regulations and crisis legal positions in the field of family and marriage, regulating a special area of public relations using a special method of legal regulation, as a set state-legal, social-legal prescriptions and legal positions that contain norms of family law and regulate family relations. 2. The system of sources of family law is characterized as a single dynamic legal system taking into account the international and European experience of regulating family relations. 3. The normative-legal agreement is a source of family law and a social regulator of family relations, which carries out individual legal regulation of family relations. It is proved that the normative-legal contract is an exclusive source of family law, which is applied in cases of necessity of settlement of opinion of several public-legal subjects.

Применение норм о разделе общего имущества и норм об обязательствах вследствие неосновательного обогащения в спорах между супругами о взыскании части распределенной прибыли общества с ограниченной ответственностью

The article deals with the issue of the rules applicable to resolving disputes between spouses on recovery of a part of the distributed profit of a limited liability company received by a spouse — a participant in a limited liability company. It is concluded that the recovery of the spouse (ex-spouse) with spouse (ex-spouse), the shares of part of the distributed profit belonging to the common property, shall be in accordance with the norms of family law on the division of common property, and not the civil law on obligations due to unjust enrichment.

On the influence of moral values on the principles and norms of family law

On the influence of moral values on the principles and norms of family law