Contrary to the prevailing opinion of the overwhelming majority of Russian citizens, a “civil marriage” is a relationship between a man and a woman registered with the registry office. The current legislation of the Russian Federation recognizes only marriages concluded in the civil registration authorities (clause 2 of article 1 of the RF IC). It is with this fact that the law connects the emergence of the rights and obligations of spouses.
However, in practice, “civil marriage” is usually called a type of relationship in which a man and a woman, living together, acquire property, give birth and raise children, live together and have a common budget, but the relationship is not registered in the registry office.
But what kind of “civil marriage” is this - is it an official marriage or not? Are the man and woman in such a marriage a de facto family, or is it just a non-binding cohabitation, a temporary arrangement for the couple for greater comfort?
So-called de facto marital relations give rise to many questions, and conflict situations of a property and personal nature often arise that arise from this type of family relationship.
Therefore, it seems necessary to try to characterize the current phenomenon, determine its legal nature and try to decide how it is possible to influence the existing situation with the help of law.
Marriage or not marriage - that is the question
There are a number of concepts similar in content - “unregistered marriage”, “informal marriage”, “de facto marital relations”, “cohabitation”, which define the relationship between cohabiting partners that are not formalized in the established manner as marriage.
In Russia, the term “actual marital relations” was introduced into use by the KZoBSO RSFSR in 1926.
By the decree of the Presidium of the Supreme Soviet of the USSR of July 8, 1944, de facto marriage relations were deprived of legal force.
Persons who were members of them were given the opportunity to register a marriage, indicating the duration of their actual life together.
If such registration turned out to be impossible, since one of the de facto spouses died or went missing at the front during the Great Patriotic War, then the other de facto spouse was given the right to apply to the court to recognize him (her) as the spouse of the deceased or missing person. based on previous legislation.
Is it possible to divide property: law
Civil marriage or cohabitation is not protected by law to the same extent as official marital relations. Civil spouses do not bear any property or other obligations to each other, and all property will be considered the premarital property of the person to whom it officially belongs. But this does not mean that a civil marriage does not provide for the division of property at all and does not regulate it in any way. Simply, regulation takes place under the auspices of the Civil Code, not the Family Code.
Therefore, if one of the common-law spouses wants to protect themselves when purchasing common property, drawing up a marriage contract will not help, since this document will not have legal force. In addition, there are different formats of ownership; the division of property can also take place according to different algorithms. The right algorithm must be chosen depending on the circumstances.
Consequences of unregistered marriages
The current Family Code of the Russian Federation does not use the term “actual marriage”, and the unregistered cohabitation of a man and a woman does not give rise to mutual rights and obligations. Such a marriage does not lead to the formation of common joint property of the spouses, subject to division in the event of termination of the relationship.
Family law norms do not apply to property acquired by cohabitants in a civil marriage.
The ownership of property by each of the cohabitants is determined depending on who it is registered in the name of. Persons living in such a marriage cannot enter into a marriage contract.
Despite all of the above, in today’s Russia actual marriage plays an increasingly significant role, and in colloquial speech the concept of “civil marriage” is often used for these purposes, which was the name for unregistered relationships in the Russian Empire, since the only officially recognized form of marriage then was church marriage.
Any rationally thinking person does not dispute the fact that unregistered marital relations not only significantly reduce the level of security of the most vulnerable partner in a relationship, but also derogate from the rights of a child born in such a family.
Back in 1918, a law was passed according to which a marriage had to be subject to registration so that it could give legal consequences or, more simply, could enjoy the protection of the law (Brandenburgsky Y.N. Marriage and family. M., 1926. P. 7).
But today, to return to that system of relations between people, when only a marriage registered in the registry office is considered necessary for the official creation of a family, and any, as is now commonly called, “actual marriage relations” are considered only as cohabitation (something indecent, condemned in society, and therefore not regulated by the legislator), is quite difficult.
It will be necessary to change some of the foundations that have already taken root in the public consciousness, to set people up in a different spiritual and moral way, to instill in the younger generation other principles of interaction between people in pairs.
Achieving this only by explaining the negative consequences of unregistered relationships (children born out of wedlock, the need to establish paternity, problems of inheritance, division of jointly acquired property, etc.) does not seem difficult enough.
Therefore, one should not ignore the fact that an increasing number of young couples frivolously consider their informal relationships to be quite acceptable, while the legal consequences of a “civil marriage” are remembered only when the problem has already become relevant.
Of course, the main feature of marriage is its goal - creating a family; otherwise, relationships can be of a different nature (comradely, creative, etc.), and not always regulated by law.
In practice, three different situations may arise:
1. A couple has decided to start a family, registered a marriage, has a common life, a budget, there is mutual moral and material support, communication between the spouses, etc. That is, in these legal relations there are all the signs of creating a family. Therefore, such a marriage can be considered not just a formalized union between a man and a woman, but also a real family.
2. The couple registered their marriage, but did not want to start a family, but only used the form of marriage (official agreement to create a family) for some other purposes, for example, to obtain an apartment on preferential terms or to travel abroad for work. Such a marriage is not recognized by law and is annulled in court as a fictitious agreement (Article 27 of the RF IC).
3. The couple entered into a so-called de facto marital relationship, i.e. into a relationship without marriage. In this case, the family was also not created for the simple reason that the persons who began living together and sharing a common life, and perhaps even decided to have a child, did not come to create a family: they did not try to formalize their relationship, because they do not yet consider necessary to give these relationships the status of a family.
Benefits of cohabitation
Despite the huge number of privileges that the state provides to registered families, many couples still believe that going to the registry office is an unnecessary procedure. Why:
- Most marriages break up in the first few years of life because it turns out that people were in a hurry to start a family. They didn’t get to know each other enough and couldn’t put up with their suddenly revealed character traits. Previously, no attention was paid to this: those who entered into an alliance before God were doomed to “grind in” and find compromises. Today this is not considered mandatory, because it is as easy to dissolve a marriage as it is to enter into one. Many people think that they will always have time to legitimize the relationship later, when they are sure of each other;
- a stamp in a passport is considered a restriction of freedom, and not everyone is ready to put up with this, at least psychologically. Cohabitation is convenient, mutually beneficial, but at the same time everyone, albeit nominally, retains the right to personal life;
- A very common view is that a stamp in a passport does not change anything, which means it is not needed. If in Soviet times much attention was paid to the thought “what will people say?”, today it is customary not to take other people’s opinions into account;
- life in official freedom has a number of privileges. For example, a single mother has the right to some benefits that will be given to her regardless of the fact that in fact she does not live alone and runs a common household with a man whom she considers her husband.
Problems when terminating an unregistered relationship
As statistical data taken from the country's population census show, there are much more women in civil (unregistered) marriages than men, i.e. individuals evaluate their relationships differently.
This only means that these kinds of couples are just trying, perhaps even have the intention of starting a family in the future, but have not yet become one.
A registered marriage, on the contrary, means a clear position of the persons in the couple to have a family, to consider their relationship as family law, to recognize them as such before the state, society and each other.
The main legal problems faced by “common-law spouses” are children born out of wedlock and their rights to alimony, inheritance, housing rights, and division of property.
In accordance with Art. 53 of the RF IC when establishing paternity in the manner provided for in Art. Art. 48 - 50 of the RF IC, children have the same rights and obligations in relation to their parents and their relatives as children born from persons married to each other.
The current IC of the Russian Federation not only equalizes the rights of so-called legitimate and illegitimate children, but also, in comparison with the previously effective law, is more loyal to children born out of wedlock.
However, in practice, many citizens face numerous obstacles in establishing the fact of paternity; problems arise with proving the origin of a child from a specific person. At the same time, the conclusion of an examination on the issue of the origin of the child, including one carried out using the method of “genetic fingerprinting”, by virtue of Part 3 of Art. 86 of the Code of Civil Procedure of the Russian Federation is one of the pieces of evidence that is assessed by the court in conjunction with other evidence available in the case.
The problem of dividing property between “common-law” spouses may arise if property (for example, a car, various real estate objects) is acquired and registered in the name of one of them.
The residence of the “actual” spouse in someone else’s apartment (especially without registration at the place of residence) in the event of the termination of family relations creates problems associated with access to jointly acquired property and with proving in court the fact of their ownership.
Within the meaning of Art. 244 of the Civil Code of the Russian Federation, the fact of the creation of common shared ownership can only be confirmed by agreement of the parties. Therefore, as admissible evidence, it is possible to use only written documents, explanations of the defendant, including those set out in audio recordings, which must confirm not only the fact of financial participation of the other “actual” spouse in the acquisition of property, but also the agreement to acquire property as common shared ownership. Obtaining such evidence in practice is extremely problematic.
Actual marital relations are sometimes associated with the acquisition of residential premises into the ownership of one of the “actual” spouses. Often, parties invest all their savings, and sometimes even proceeds from the sale of personal property, into real estate.
Subsequently, upon termination of de facto family relationships, when it is not possible to prove ownership of housing, the question may inevitably arise about preserving the “common-law” spouse’s right to use his only residential premises.
Inheritance by will
A will is a way to dispose of property after death. A citizen has the right to bequeath his own property to any person, including his actual cohabitant. There are no restrictions on the circle of family ties.
Despite the will, the mandatory share rule for disabled dependents applies. The legislation establishes a formula for calculating the size of the mandatory share.
A will is drawn up by an adult capable citizen in person. The will is disputed or declared invalid in court if there are grounds in the Civil Code of the Russian Federation.
