Protection Of Family Rights Research Articles

Nikāh Sirri and Its Impact: The Perspective of Maqashid Ash-Shari’ah of Imam Asy-Syathiby

Background. The legal status of nikāh sirri (secret or unregistered marriage) is controversial because it is not announced and not officially recorded. The views of scholars on secret marriage and the factors causing it, as well as the legal regulations in force in Indonesia, need to be studied. Aim. Examines nikāh sirri from the perspective of maqāṣid asy-syari’ah, which includes five essential goals of Islamic law: the maintaining religion (hifẓ ad-dīn), soul (hifẓ an-nafs), descendants (hifẓ an-nasl), property (hifẓ al-māl), and reason (hifẓ al-’aql). Method. This research utilizes a literature review with a descriptive-analytical approach to Islamic jurisprudence and relevant regulations. Result. Nikāh sirri causes more harm (mafsadat) than benefit (maslahat), particularly concerning the rights of wives and children in inheritance, financial support, and legal protection. Based on maqāṣid asy-syari’ah, nikāh sirri is considered impermissible (haram) due to its adverse effects on mental well-being, economic instability, and threats to legitimate lineage. The formal registration of marriage is crucial for ensuring the protection of family rights.

FEATURES PROTECTING RIGHTS IN THE SPHERE OF FAMILY RELATIONS: STATUS AND PROSPECTS

Purpose of the study. The article identifies problems of theory and practice related to the consideration of cases in courts for the protection of rights arising in the field of family legal relations. The author substantiates the conclusion about the need to determine the specifics of justice in family cases, especially with the participation of minors, which is due to the participation of special bodies and authorized persons who ensure the protection of the family rights of citizens. The author has proven that effective protection of family rights is possible subject to the balanced use of different forms (jurisdictional and non-jurisdictional), including alternative methods, which essentially corresponds to the nature of family relations and contributes to the adoption of legal and informed decisions that meet the rights and legitimate interests of citizens.

PROBLEMS OF COMPENSATION FOR MORAL DAMAGE IN FAMILY LAW OF THE RUSSIAN FEDERATION

The Family Code of the Russian Federation fixes the personal rights of spouses, non-property rights of children, parents, and other family members, but provides for the possibility of compensation for moral damage only to a conscientious spouse when a marriage is declared invalid. The issue of using the institution of compensation for moral damage in family legal relations is controversial and is currently supported only by doctrine. An analysis of judicial practice shows that courts do not agree with the possibility of compensation for moral damage in cases of violation of family rights. The question of the need to take into account marital relations in order to compensate for moral damage when one spouse causes harm to the health of the other is also topical. In this regard, the authors analysed scientific points of view on the research topic, studied materials from judicial practice as a result of which, it was found that the institution of compensation for moral damage can be used to more effectively protect the non-material rights of spouses, parents, and children. For instance, the right to communicate with a child of a parent living separately is occasionally violated. Marital legal relations and relations between parents and children, in which compensation for moral damage can be a productive way of protecting violated rights, are analysed. Based on the results of the analysis of current legislation, doctrinal sources and materials of judicial practice, it was concluded that compensation for moral damage as a measure of liability is fully applicable in the protection of family rights, but is not provided for by current legislation.

Compensation for moral harm in violation of the right to disrespect for kinship and family ties

The admissibility of a wider application of compensation for moral harm in violation of family rights in the science of family law is assessed ambiguously. The law provides for such an opportunity only in art. 30 of the Family Code for a conscientious spouse when the marriage is declared invalid.It is necessary to take into account the specifics of family relations, as deeply personal, and the fact that art. 8 of the Family Code does not limit the protection of family rights in the ways specified in the legal norms, allowing the use of other methods. At the same time, in accordance with the provisions of art. 4 of the Family Code, the application of civil legislation to family relations is allowed, if it does not contradict the essence of family relations, which leads to refusals in a claim for compensation for moral harm due to the presence of obstacles to relatives from one of the parents in communicating with the child, due to the fact that the provisions of the current civil and family legislation do not provide for the possibility of his penalties.One of the most important reasons for the negative attitude of the courts to the fundamental permissibility of a wider application of the above-mentioned measure of responsibility in violation of family rights is seen in the absence of developed conditions for an offense that would be the basis for the application of compensation for moral harm, given that such conditions, taking into account the specifics of family relations, differ significantly from the usual conditions of civil liability.Goal. Identification of the criteria of private and family life applied by the European Court of Human Rights, as well as the study of the fundamental possibility of filing a claim for compensation for moral harm caused by the refusal of a parent to provide an opportunity to communicate with a child and participate in his upbringing to a separate parent.Methodology. In the course of the research, methods of generalization, description, analysis, synthesis, formal legal method were used.Results. The necessity of expanding the subject of proof in such a dispute with the inclusion of the following circumstances is justified. The presence of objective obstacles to communication, which can be associated with both the child (illness, unwillingness of the child to communicate with the parent), and with the personality of the parent living separately, communication with which can negatively affect the child. It is necessary to take into account the opinion and interests of the child. It is also necessary to take into account the actions of the parent himself, demanding compensation for moral harm, so if he evades the duties of maintaining his child, we assume the possibility of refusing the claim. Making a decision on compensation for moral harm involves taking into account the fault of the causer and his motives, which should not correspond to the interests of the child.

Methods of protection of family rights and interests of the child by law enforcement bodies and organizations

In the paper a study of methods of protection of family rights and interests of the child by human rights bodies and organizations was carried out. On the basis of the conducted scientific research, the author came to the conclusion that the Commissioner for Human Rights of the Verkhovna Rada of Ukraine, acting through his human rights representative and the Office for Monitoring Compliance with the Rights of the Child and Family, Youth and Sports, independently applies the following methods of protecting family rights and the interests of the child as: assisting parents in self-defense of family rights and interests of the child, which is manifested in the provision of legal information to parents necessary for self-defense, consideration of appeals from them and information about the best way to resolve the issue; monitoring the state of compliance with the family rights and interests of the child and promoting the restoration of the violated family rights and interests of the child by other state bodies, local self-government bodies, enterprises, institutions, and organizations by sending mandatory response acts. In this case, the protection of family rights and interests of the child by the Commissioner of the Verkhovna Rada of Ukraine for human rights is included in the content of the jurisdictional form of protection. The actions of public organizations and their implementation of human rights functions are united by the concept of "non-jurisdictional methods of protection", public human rights organizations in this context use such methods of protecting family rights and interests of the child as: organization of negotiations (mediation) between participants in family relations regarding the settlement of disputed issues, in including those related to the renewal of a violated, unrecognized or contested family right or interest, participation in the conclusion by the mediation parties of an agreement based on the results of the mediation, in which the obligations agreed upon by the mediation parties, the methods and terms of their implementation, as well as the consequences of their non-fulfilment or improper implementation.

Applied issues for the opening of proceedings in family cases in a civil proceeding

In the scientific article, the author conducted a scientific study of doctrinal and normative sources devoted to applied issues of opening proceedings in family cases in a civil process. In family law, a wide list of family rights and interests that are protected in court is distinguished. Considering the circumstances caused by the full-scale military invasion of the Russian Federation, which lead to significant violations of family rights and interests of spouses, parents, children, other participants in family relations, the issue of ensuring the proper protection of their rights (including the development of proper procedural mechanisms for the protection of family rights and interests remains relevant and timely. Research available in the legal doctrine only partially touched on the issue of features of opening proceedings in family cases in civil proceedings. Based on the conducted research, the author came to the conclusion that the features of opening proceedings in family cases are: a) the limited right of the plaintiff to file a motion to consider the case according to the rules of simplified legal proceedings and similarly – the limitation of judicial discretion in this area. Only in cases of division of the property of the spouses is it possible for the plaintiff to submit a petition for consideration of the case according to the rules of simplified legal proceedings, as well as the right of the court to resolve the issue - whether to consider this case according to the rules of general legal proceedings or simplified legal proceedings; b) peculiarities in the jurisdiction of family cases – with regard to a significant number of cases, jurisdiction is provided at the choice of the plaintiff, as well as the filing of a lawsuit for dissolution of marriage by a representative of a participant in family relations; c) particularities in the jurisdiction of family cases – for a significant number of cases, jurisdiction at the choice of the plaintiff is assumed; d) limited application of such a basis for the return of a statement of claim as the submission of a statement by a person who does not have procedural legal capacity. The court has the right to apply the submission of a statement by a person who does not have procedural legal capacity as a basis for returning a statement of claim only in the case of filing a corresponding claim, statement in the case of a separate proceeding, statement on the issuance of a court order by a person who has not reached the age of fourteen.

Contract as a source of regulation and an instrument for the protection of family rights in Ukraine

Contract as a source of regulation and an instrument for the protection of family rights in Ukraine

Consideration of family cases by the court according to the rules of simplified litigation: a review of judicial practice and trends of change

The article is devoted to the peculiarities of the implementation of the right to apply to the court for the protection of family rights and interests of each participant in family relations.National procedural legislation determines that the right to judicial protection of family rights is realized by applying to court and administering justice according to the rules of civil procedure in legal proceedings (general or simplified legal proceedings), in injunctive and separate proceedings. At the same time, the authors draw attention to the legislative possibility to resolve identical family disputes both in the order of legal proceedings and injunctive proceedings. Legislators of EU member states regulate the issue of consideration of family disputes in civil proceedings in various ways: with the possibility of applying a simplified procedure; creation of specialized courts that consider family disputes; consideration of family disputes only according to the ordinary procedure.In particular, the legislator’s classification of cases concerning the collection of alimony, its increase, the payment of additional expenses for the child, the collection of a penalty (penalty) for late payment of alimony, the indexation of alimony, the change in the method of its collection, if such requirements are not related to establishing or disputing paternity, is ambiguous. (maternity) to the category of insignificant. After all, such disputes are of great importance both for the parties (who are trying to protect personal rights related to paternity/maternity) and the court (for which each case is unique and requires careful research). It is the court that is entrusted with the duty of determining the procedure for consideration of family disputes, which actively applies discretionary powers within the framework of simplified legal proceedings, despite the requests of the parties and their desire to use as many means of protection as possible.Quick resolution of family disputes by the court is often necessary to effectively ensure the rights and freedoms of the participants in family relations. However, it is necessary to guarantee the real observance of the basic principles of the judiciary for the resolution of relevant disputes and to minimize the presence of evaluation categories in the Civil Procedure Code of Ukraine regarding the consideration of family cases

Granting the right to marry a minor as a way of judicial protection of family rights and interests

The scientific article investigates the nature of granting the right to marry as a way of judicial protection of family rights and interests. The methodological basis of the research is a combination of qualitative research methods, literature review and analysis of relevant legal acts.To achieve the goal of the article, the author used the following methods: (1) literature review; (2) analysis of normative legal acts; (3) qualitative research methods and (4) comparative analysis.The scientific article defines the essence and legal nature of granting the right to marry a minor as a way of protecting family rights and interests, considering the existing judicial practice. The scientific article shows that granting a minor the right to marry by the court is by its nature a changed family relationship, there is a partial change in two family relationships – between parents and the child who applied for the right to marry, as well as between the child and others. a person who wishes to marry a minor. As a result of the court’s decision to grant the right to marry, the legal status of a minor who receives the right to marry changes, this person actually loses the status of a child in the necessary legal relationship, wants and keeps it where it is necessary to ensure his best interests.Granting a minor the right to marry, on the one hand, is aimed at eliminating obstacles to the state registration of marriage by a person who has not reached the age of marriage and the emergence of a complex of personal non-property and property rights of spouses in this particular case; on the other hand – to protect her rights and interests as a child, after that this is the reason for the court’s decision to grant the right to marry a minor as an exception to the rules on the marriage of an adult.Granting the right to marry to a minor can be aimed at protecting not only the rights and interests of the applicant, but also the protection of the rights of the applicant’s unborn child who is pregnant, the interests of another participant in the process who wishes to marry the person requesting the right to marry.

State protection of family rights of internally displaced persons

The protracted war in Ukraine and the full-scale invasion led to an increase in the number of refugees from Ukraine and internally displaced persons in the middle of the country, actualizing the issue of protecting their rights. That is why this article analyzes the mechanism of state protection of family rights of internally displaced persons. It is clarified how the mechanism of state protection of the family functions during the war. It is substantiated that the basis of the mechanism of state protection of family rights is the principle of state protection of the family. The provisions of international acts, the Constitution of Ukraine, the Law of Ukraine "On Ensuring the Rights and Freedoms of Internally Displaced Persons", as well as norms of family legislation, were studied.
 The differences between the concepts of "protection" and "protection" are analyzed. It is emphasized that the mechanism of state protection of the family rights of internally displaced persons includes legal norms that provide for various tools for ensuring and protecting rights, as well as positive obligations of the state. The approach of the Constitutional Court of Ukraine, formed during the war, regarding the understanding of social protection and protection of the family, childhood and motherhood (parenthood) is clarified.
 It was noted that the number of orphans and children abandoned by their parents increased during the war, therefore the system of legal guarantees for the placement of such children in such forms, which are closest to family ones, is of great importance.
 It is proved that the mechanism of state protection of family rights of internally displaced persons is based on the general principle of state protection of the family and includes legal, institutional, procedural, financial and informational tools. It is substantiated that the project of the State Policy Strategy on Internal Displacement for the period until 2025 contains a limited approach to guaranteeing the family rights of IDPs. First of all, the principles must be supplemented with the principle of the best interests of the child, and the list of measures must guarantee the right of every family member who is an IDP to information about missing relatives.

Компенсация морального вреда при нарушении права на личную и семейную тайну

The permissibility of a wider application of compensation for moral damage in violation of family rights in the science of family law is assessed ambiguously. The law provides for such an opportunity only in paragraph 2 of paragraph 4 of Article 30 of the Family Code of the Russian Federation for a bona fide spouse when the marriage is declared invalid. It is necessary to take into account the specifics of family relations, as deeply personal, and the fact that Article 8 of the Family Code of the Russian Federation does not limit the protection of family rights in the ways specified in the norms of the Family Code, allowing the use of other methods. Expands the possibilities of using this method of protection Resolution of the Plenum of the Supreme Court of the Russian Federation No. 33 “On the practice of application by courts of norms on compensation for moral damage” dated 15.11.2022, according to which moral damage caused by violation of personal and family secrets must be compensated. Purpose. The purpose of the study is to identify the features of the legal regime of family secrecy and its possible content. Methodology. In the course of the research, methods of generalization, description, analysis, synthesis, formal legal method were used. Results. encroachment on absolute rights and causing harm by these illegal actions are grounds for the occurrence of tort obligations, it is advisable to apply to these relations the provisions of the Civil Code of the Russian Federation on the conditions of non-contractual liability, including the conditions of guilt. It is necessary to take into account the actions of the victim himself regarding information about his private and family life, including the disclosure of this information in available sources. Considering that the secret of adoption protects not only the adoptive parent, but also, above all, is established in the interests of the adopted person, it is necessary to take into account his attitude to the disclosure of information about adoption.

Features of application of methods of protection of family rights and interests by guardianship and care bodies: the question of content

In the scientific article, the author conducted a scientific study of the peculiarities of the application of methods of protection of family rights and interests by the guardianship and guardianship authorities, and determined an exhaustive list of the methods of protection used by these authorities. On the basis of the conducted research, the author came to the conclusion that there are two forms of protection of family rights and interests of parents and children by guardianship authorities: direct participation in the protection of family rights and interests, when the guardianship authority independently applies appropriate methods of protection, and indirect, when the authority guardianship and guardianship is involved in the resolution of a family dispute regarding the upbringing and maintenance of a child, but does not apply appropriate protection methods on its own. The guardianship body applies the following methods of protecting family rights and interests: establishing a family legal relationship, changing it, granting the right to exercise separate rights and duties as parents or legal representatives of a child, preventing actions that violate family rights. The last two methods are special and belong only to guardianship and guardianship bodies. Granting the right to exercise separate rights and obligations as parents or legal representatives of the child as a method of protection is applied by the guardianship authority by granting permission to commit acts regarding the child's immovable property, other acts regarding the property, the owner (co-owner) and/or user of which the child is , to conclude an agreement on the termination of the right to alimony for a child in connection with the transfer of ownership of immovable property or on the alienation of property received under this agreement, granting legal capacity to perform other powers to perform acts regarding the child's property or his civil obligations or alimony obligations of parents. Prevention of actions that violate family rights as a means of protection is carried out by conducting control and supervision measures on the targeted spending of alimony on a child, on the conditions of maintenance, upbringing, education of a child under guardianship or guardianship, on compliance with the rights of an adopted child, etc.

Concept and legal nature of methods of protecting family rights and interests

In the scientific article, the author conducted a scientific study of doctrinal sources devoted to the issue of the concept of methods of protection of family rights and interests, determining on this basis the legal nature of methods of protection of family rights and interests. In the family legal doctrine has developed several approaches to the concept of "methods of protection of family rights and interests", which are mainly related to the application of other categories to the content of this concept - "form of protection of family rights and interests", "means of protection of family rights and interests", "about "objects of protection of family rights and interests", "grounds for the protection of family rights and interests" or the complete or partial separation of these concepts from the concept of methods of protection. Based on the conducted research, the author came to the conclusion that the methods of protection of family rights and interests are coercive measures defined by family legislation or a family contract, with the help of which influence is exerted on the participants of family relations, which are applied by bodies or persons specially authorized by the law to apply them or by the participants of family relations themselves in relation to themselves or other participants, and are aimed at the restoration of violated, unrecognized or contested family law, taking into account the family interest of the participant in family relations. The concepts of "methods of protection of family rights and interests" and "measures of protection of family rights and interests" are essentially identical. The application of a specific method of protection of family rights and interests is carried out with the help of means of protection of family rights, which is a relevant act of law enforcement, which is aimed at applying the relevant method of protection. The concepts of "method of protection" and "form of protection" are not identical, the latter is a procedural aspect of solving the question of the possibility and expediency of applying the appropriate method of protection.
 The legal nature of the method of protection of family law or interest is that it: 1) the possibility of its application by the relevant jurisdictional subject or participant in family relations must be provided for by family legislation or a family contract; 2) represents a set of actions, which must be committed in accordance with the adopted law enforcement act or which are actually committed by a person in self-defense; 3) affects a violated, unrecognized or disputed family right or an unaccounted-for family interest, restores or takes into account a family right or a family interest; 4) the object of protection is any family right or interest, which are violated, not recognized, disputed or not taken into account; 5) may be applied in the interests of another participant in family relations if this is allowed by family law.

Place of judicial protection in the system of forms of protection of family rights and interests

In the scientific article, the author conducted a scientific study of the place of judicial protection of family rights and interests in the system of forms of protection of relevant rights and interests. The author determined in the scientific article that the protection of family law or interest is the activity of the body, authorized to carry out the restoration of the violated or recognition of the disputed family right and interest of the participant of family relations, which is manifested in the application of protective measures to the participants of family relations, with the help of which the corresponding right or interest is renewed (recognized) - the so-called methods of protection; the form of protection is distinguished as the activity of the corresponding jurisdictional body, aimed at protecting the violated right, which has its own specificity, caused by the presence of a separate protection procedure, a special subject composition and special methods of protection that can be applied. In the family legal doctrine has developed several approaches to the classification of forms of protection of family rights and the interests of participants in family relations, which is manifested in the allocation of jurisdictional and non-jurisdictional forms of protection, judicial and administrative forms of protection, as well as the allocation of forms of protection depending on the body, which provides appropriate protection along with self-defense. The author determined that in the family legal doctrine, the allocation of judicial protection as a separate type of jurisdictional form of protection of family rights and interests prevails along with other types, the list of which may vary depending on whether the possibility of exercising jurisdictional protection of family rights and interests is recognized only by state bodies, or by local self-government bodies, as well as by entities authorized to perform legally significant actions on behalf of the state (lawyers, notaries, mediator, etc.). Based on the conducted research, the author came to the conclusion that that judicial protection is a universal form of protection of family rights and interests, which is characterized by the fact that it is carried out by a special state body - the court; takes place in the form prescribed by the civil procedural law by passing a court decision, which is final and has universal binding force, can be performed with the possibility of state coercion; can be implemented if the person who owns the right or interest, which is the object of protection, applied to the court with the corresponding demand using the appropriate procedural form within the limitation period; has exclusive competence on the most important issues of family relations; along with the national level of judicial protection, there is also an international one.

Features of the legal regulation of the adoption of children by foreigners according to the family legislation of foreign countries

In the scientific article, the author conducted a scientific study of the foreign experience of legal regulation of the adoption of children by foreigners, primarily according to the legislation of the European Union states and states adjacent to Ukraine. Based on the conducted research, the author came to the conclusion that in the practice of states adjacent to Ukraine and states members of the European Union, there are three approaches to determining the procedure for adopting children by foreign citizens: through the definition of a national regime for foreigners, similar to that which exists for citizens of the relevant state (Latvia); through the determination of conflicts of laws with respect to the law applicable to adoption, which are defined in civil codes (Germany, France, Czech Republic) or separate laws on international private law (Spain, Switzerland); due to the establishment of a separate procedure for adoption (Bulgaria, Belarus, Moldova, Ireland) or an exceptional case of adoption of a child by foreigners using the same procedure for adoption, as with national adoption (Poland, Hungary). In the latter case, the possibility of international adoption is provided, if the child, after being transferred to a foster family, was not adopted in the state of his/her citizenship, because the measures taken to adopt the child were not successful, moreover, in Poland, exceptions to this rule are provided when there is a kinship relationship between the adopter and the adopted child or if the adopter has already adopted a brother or sister of the child being adopted. In the Republic of Bulgaria, foreigners wishing to adopt a child must obtain a permit for international adoption from the Minister of Justice, in the Republic of Belarus - in addition to the written permission for adoption from the Minister of Education, it is also necessary to obtain the child's consent for adoption, the child's stay in the relevant register for a year and the absence of an initiative by citizens of Belarus to adopt a child. In the case of international adoption of citizens of the Republic of Moldova, the ethnic origin of the child, his/her belonging to a certain culture, religion, language and other features that deserve attention must be taken into account; persons wishing to adopt a child must submit a special application - for international adoption, to the Ministry of Health, of Labor and Social Protection of the Republic of Moldova and the Department of Social Security and Protection of Family Rights as territorial guardianship bodies carry out preliminary and final selection of foreigners who wish to adopt a child who is a citizen of the Republic of Moldova.

Sudovyi zakhyst simeinykh prav batkiv ta ditei za simeinym zakonodavstvom okremykh yevropeiskykh derzhav

In the scientific article the author conducts a study of foreign experience of legal regulation of judicial protection of family rights of parents and children, primarily under the legislation of certain states of the European Union (such as Germany, France, the Czech Republic, Slovakia, Poland, Hungary, Latvia, Estonia) and under the legislation of the Republic of Moldova. Based on the conducted research, the author comes to the conclusion that in the German civil and French civil legislation, the Civil Code of Hungary and the family laws of Estonia and Slovakia, an exhaustive list of methods and types of judicial protection of the family rights of parents and children is not defined, although it can be formed on the basis of the analysis of the texts of individual articles devoted to specific issues of the exercise of family rights of parents and children and their protection. At the same time, as shown by the analysis of the family legislation of this state, which regulates the specifics of the protection of family rights and obligations of parents and children, the court must have the right to consider all disputes regarding the implementation of family rights of parents and children, similarly to what is provided for by Family Law of Ukraine. The French Civil Code separately defines the procedural powers of the court of first instance, which are intended to resolve cases that come up for consideration within the framework of a dispute over the exercise of parental rights. The analysis of the civil legislation of the Czech Republic, Latvia, Poland and Romania allow us to conclude that the court is not the only (albeit the main) body authorized to protect the rights of parents and children; specific methods and forms of protection of family rights, in particular parents and children, similar to French and German civil legislation, are defined in separate articles. Latvian civil law, along with the judicial protection of the family rights of parents and children, also contains a quasi-judicial form of protection represented by orphan courts, which are guardianship and care bodies of local self-government bodies and decide on the issue of transferring a child to the care and upbringing of a future adopter, on the adoption of a child, on assistance in parents' implementation of their rights and obligations towards a child, assistance to a child in case of improper implementation by the parents of their rights and obligations regarding a child, termination of the right of guardianship of the parents over a child or renewal of such right, appointment, approval or dismissal of a guardian. Polish and Romanian family legislation provide for two independent forms of protection of family rights — judicial and quasi-judicial, similar to Latvian legislation, when the issue of adoption, establishment of guardianship, resolution of disputes between parents regarding the fulfilment of parental rights and duties by them is decided by «guardianship and guardianship courts» as bodies of custody and care. The Family Code of the Republic of Moldova adopts an order with courts as bodies that ensure the protection of family rights of parents and children, guardianship bodies, and also provides that family rights are protected by competent public administration bodies, and in some cases by mediators and judicial authorities. The court, as a rule, protects the family rights of parents and children in the presence of a conflict of interests between parents and children.

Russian Legislation Novelties on Protection of Family Rights

The State Duma adopted the Federal Law «On Amendments to the Family Code of the Russian Federation and Certain Legislative Acts of the Russian Federation» (draft No. 835938-7). The paper discusses and analyses the new provisions of the Family Code of the Russian Federation from the point of view of scientific and law enforcement approach. The new version of paragraph 2, paragraph 3, Article 35 of the Family Code of the Russian Federation creates prerequisites for considering the fact that the counterparty in the transaction knew or should have known about the absence of the notarized consent of the spouse as a basis for recognizing transactions on the disposal of community property requiring such a notarized consent. In order to avoid different interpretations in judicial practice, the author substantiates the conclusion on the extension of the provision of paragraph 2 of paragraph 2 of Article 35 of the Family Code of the Russian Federation on the need to prove the above-mentioned fact to transactions provided for in paragraph 3 of Article 35 of the Family Code of the Russian Federation. Special attention is given to transactions on the disposal of exclusive rights, which may also be part of the community property. It is also concluded that it is advisable to enter the state of marriage of the owner of the exclusive right to registered objects into the registers of the Federal Service for Intellectual Property and the Ministry of Agriculture of the Russian Federation. Having considered the novelties of paragraph 2 of Article 39 of the Family Code of the Russian Federation on the expansion of the grounds for departing from the principle of equality of the spouses’ shares in the division of property by the court in relation to the provisions of paragraph 2 of paragraph 2 of Article 35 of the Family Code of the Russian Federation, the author concluded that it was expedient to apply these norms in cases where the dispute on the recognition of the transaction invalid was not considered by the court, including if the statute of limitations has been missed, or it has not been possible to prove that the other party to the transaction knew or should have known about the other spouse’s disagreement to make the relevant transaction.

Constitutional principles of protection of family rights and interests of the child in civil proceedings

In today's society, paradigms and models of child-rearing, values, and opportunities of parents, competent authorities, and the court to ensure the rights of the child are changing. Most states have identified the protection of family rights and interests of the child, the avoidance of violence against the child, the prohibition of bullying, etc. among the priority areas of state policy. It is important to analyze the constitutional principles of protection of family rights and the concept “the best interests of the child” in civil proceedings, because it is the court that the legislator has the broadest powers in this area, compared to other jurisdictions. The work aims to study the guiding constitutional principles based on which the court can protect the family rights and interests of the child. The research methodology consists of general theoretical and special scientific methods, namely: hermeneutic, system-structural, structural-functional, historical-legal, comparative-legal, and formal-logical. As a result of the study, the mechanisms of the best possible protection of children's rights by the courts were analyzed. An analysis of current case law, including the case-law of the European Court of Human Rights, concluded that today courts and other competent bodies pay considerable attention to analyzing "how a child will be better" and make informed decisions and, if necessary, correct previous mistakes.

Peculiarities of the application of individual methods of protection of family rights and interests by the state registration of civil status acts

In the scientific article, a scientific study of the peculiarities of the application of certain methods of protection of family rights and interests by the bodies of state registration of acts of civil status was carried out. On the basis of the above scientific research, the scientific article determined that the bodies of state registration of acts of civil status carry out the protection of family rights and interests of participants in family relations, both indirectly, by implementing the relevant court decision, and directly, by applying the appropriate methods of protection. In the first case, the basis for taking appropriate registration actions by the civil status act registration body is a relevant court decision, which recognizes the absence of a relevant event previously registered by the civil status act registration body at the time of registration, or the presence of an event that indicates the need for cancellation a previously performed registration action (for example, in the case of the execution of a court decision declaring a marriage invalid, unconcluded or fictitious) or its change (execution of a decision to renew a marriage in connection with the cancellation of a court decision to recognize a person as missing or declared dead, execution of a court decision on establishing the origin of the child in case of a dispute about it, on adoption, its invalidation or cancellation, on deprivation of parental rights, their renewal). In such a case, the state registration body of civil status acts executes the court decision, which has applied such protection methods as annulment of family legal relations, renewal of family legal relations in connection with the cancellation of the court decision on recognition of the missing spouse as absent or declared dead; establishing a family legal relationship in connection with the determination of the child's origin by the court; change of family relationship. In the second case, the body of state registration of civil status acts independently applies the following methods of protection of family rights and interests: annulment of the family legal relationship by annulment of the legal record of marriage, which is invalid; termination of a family relationship, which appears to be available to the relevant authorities to dissolve the marriage at the request of a spouse who does not have children or at the request of one of the spouses in the event that the other spouse is recognized as missing or declared dead due to the drawing up of a certificate of divorce; establishment or change of the parental legal relationship by drawing up a record of the child's birth or making changes to it..

Legal methods of resolving family disputes

Consideration of issues of protection of family rights in Russia is conditioned by a special social aspect. Today, this problem is acutely traced in the legislative aspect, in particular from the point of view of the tendency to level family values, on the basis of which a modern model of private law protection of family rights and legally protected interests should be built. We should also not forget that not all relationships that arise in the family circle are amenable to clear legal regulation. In such cases, the value, moral and legal regulators of family relations come to the fore, which are of no small importance for the use of special methods and methods of private legal protection of family rights. Thus, the task of legal regulation of relations between modern civil and family legislation comes to the fore and it consists in creating a working, effective socially oriented basis for the maintenance and development of the family, which, in turn, will include effective methods of protecting the rights and legitimate interests of its members, conditions for their exercise of independent powers in personal non-property and property relations, with the use of a law enforcement mechanism to ensure family legal protection.