Many couples choose not to register their marriage for a variety of reasons. Some are protecting their other half from the need to disclose information about income and property, some are trying to protect at least part of their joint assets from foreclosure, and some simply do not want to take on additional responsibilities.
At Krainev and Partners, we often encounter the need to protect rights in actual marital relations. Many clients are surprised when they learn that the commonly used expressions “common-law marriage” and “common-law spouse” are best avoided in official documents. Most judges, prosecutors, tax inspectors and other recipients of our documents close to the jurisprudence are vaccinated against this term while still in university.
In this regard, we are trying to use more neutral terms: mother/father of the Plaintiff’s child, partner, lover, etc. But sometimes you can’t do without the word “cohabitant”. Of course, many people get upset when they see it in documents. The negative connotation of this concept was aptly noted by stand-up comedian Victoria Skladchikova in “Open Microphone”:
- Who is he to me? Roommate? It seems to me that when you call a person “cohabitant,” you automatically assign him a diagnosis of “alcoholism and theft.”
Today we are looking at 10 main advantages and disadvantages of “civil marriage”, and also dispelling several myths about it.
You can establish paternity of your common children even without being married
Outside of marriage, paternity is established by a joint application of the child’s parents simultaneously with the registration of his birth or later. If, before the birth of the child, you have a suspicion that after the birth it will be difficult or impossible to submit a joint application (for example, one of the parents will go on a long business trip or there is a risk to his life), you can submit the application during pregnancy.
The father can also file an application to establish paternity on his own (without the mother’s consent, but with the consent of the guardianship and trusteeship authority) in the following cases: the mother has died, been deprived of parental rights, or been declared missing.
Differences arise when the father objects to the establishment of paternity.
The only difference between an official marriage and an unregistered partnership is the simplified nature of the “assignment” of paternal status. During marriage and for 300 days after its dissolution, there is a presumption that the official spouse of the mother is the father of the born child (unless she wishes to leave a dash in the “Father” column or indicate another person).
If the spouse in the marriage has objections, he can challenge paternity in court, but until the decision enters into legal force, he will remain the father of the child. In an unregistered union, it’s the other way around: the man will not be considered the father of the child until the court’s decision to establish paternity comes into force.
Registration of alimony
Both parents, regardless of whether they have gone through the marriage procedure, must support their child. Therefore, both the father and mother may be obligated to pay child support. However, for this to happen the following conditions must be met:
- Official recognition of paternity either by the civil registry office or by a court order;
- One of the parties adopted someone else's child.
If a man does not recognize family ties, but the mother wants to receive alimony, she will have to initiate a paternity procedure. After the appropriate entries have been made, you can count on the state to oblige the man to pay child support.
If the parents live in a civil marriage, and the father is included in the birth certificate, then it is enough for the couple to enter into a voluntary alimony agreement. To do this, the parties agree on all the conditions and the amount of payments, after which they go to a notary to draw up a document.
If the father evades paying child support, the child's mother will have to turn to the judicial authorities. Upon completion of the consideration of the case, Themis will determine the amount of penalties and oblige the parent to pay money for maintenance.
Official registration of marriage or its absence does not in any way affect the amount of alimony.
✅ 3. The rights and responsibilities of parents towards their children are the same both within and outside of marriage
Both parents have the right:
- participate in the child's upbringing;
- receive leave to care for him;
- organize the child’s communication with his relatives;
- go to the hospital with your child;
- choose an educational institution (in agreement with the second parent) and so on.
And in the same way, they equally bear responsibilities: for the material support of the child, his upbringing and development, protecting the child from harmful influences, ensuring that he receives an education, etc.
Marriage in this situation is not of fundamental importance: the basis for the emergence of the rights and responsibilities of a parent is the entry in the child’s birth certificate.
✅ Outside of marriage, you will not lose the right to receive alimony for the maintenance of a joint child
If suddenly your union breaks up or creditors encroach on the property of the child’s second parent, the parent with whom the child lives has the right to demand that the other pay child support.
If you want to officially formalize the amount and procedure for paying alimony, there are two ways: concluding a notarial agreement on the payment of alimony and going to court. They are also available to everyone, regardless of whether they registered their marriage.
When resolving a dispute in court, the parties also have the right to enter into a settlement agreement or proceed to mediation at any time before the judge retires to the deliberation room.
✅ 4. Outside of marriage, you can also acquire property as community property
A couple can register any property, including real estate (house, apartment, land, etc.), purchased at the expense of the common budget, into common shared ownership.
In this case, the termination of the relationship or the death of one of the partners allows each of the partners to remain with their own. To recognize rights to a share in property, you do not have to go to court.
The difference from an official marriage is that there is no presumption of community of property acquired during cohabitation.
In marriage, you can move away from this “pre-established” option and enter into a prenuptial agreement or an agreement on the division of jointly acquired property.
Outside of marriage, on the contrary, it will be necessary to provide for the division of each individual object or several objects, or to enter into some kind of “framework” agreement for future acquisitions (for example, a simple partnership agreement).
✅ 5. Even without the consent of your partner outside of marriage, you can receive a share in the common property or return the money spent on it. But you will have to try for this
Often, in a couple that has not registered a marriage, property is purchased with common money and, for convenience, one of the partners registers it in his or her own name. If a dispute arises about the ownership of property or if the partner who is the official owner dies, the second partner can go to court.
There are three options:
1) File a claim for the award of a share in property rights.
This is a rather complex method of protection: positive decisions are made by the courts in cases where it is possible to prove the existence of an agreement between partners to acquire the disputed property as shared ownership.
2) File a claim to recover funds invested in the purchase as unjust enrichment, if there was no agreement on the joint acquisition of property.
It will not be possible to use this method if the court finds that from money transfers or correspondence between the parties it follows that the money was gifted or transferred to the second partner specifically for some purpose.
3) File a claim to recover the transferred funds under the loan agreement.
Don’t be confused by the word “agreement”: to file this claim, it will be enough to confirm the transfer of funds to the second party and (if there are objections from the opponent) to confirm the absence of intention to donate them. The absence of a written agreement or receipt only deprives the parties of the right to refer to the testimony of witnesses, but the rest of the evidence is correspondence, recordings of negotiations, bank statements, etc. - can be used. If you did not agree on a time frame for the return of funds, simply send a request for a return of funds to the other party. After thirty days (unless a different period is agreed upon in the contract), you can go to court.
Please note the statute of limitations: for each claim it is three years:
- for a claim for the award of a share in the right: from the moment when the share in the right should have passed to the plaintiff (and did not);
- for a claim for recovery of unjust enrichment: from the moment the defendant receives funds or other property;
- for a claim for debt collection under a loan agreement: from the moment when the debt should have been repaid under the terms of the agreement, and if the period is not agreed upon in the agreement - from the thirty-first day from the date of sending the demand for the return of funds (not counting the day the demand was sent).
✅ For comparison, a claim for the division of property acquired jointly during marriage can be filed at any time during the marriage and within three years after its dissolution.
✅ 6. Outside of marriage, you decide for yourself what debts your partner owes
An official marriage allows creditors to foreclose on jointly acquired property, demand its sale and, most importantly, demand payment of the debt assumed by your spouse. However, the debt will be presumed to be personal unless the creditor proves that the debt arose in connection with the needs of the family and with the consent of the second spouse.
In the case of unregistered relationships, there is a presumption that all debts of each partner are their own. Otherwise, it must be expressly provided for by the agreement of the parties (for example, you can agree and become co-borrowers on a loan or accept guarantee for the debts of your other half).
The rights to inherit and receive maintenance in an informal union are quite limited
An official marriage presupposes that if one of the spouses is incapacitated, the second, able-bodied spouse, assumes the obligation to take care of him. In the event of a dispute, the disabled spouse may demand the establishment of alimony: the main thing is that the incapacity for work occurred during the marriage and not through his own fault.
He also has the right to an obligatory share in the inheritance (it is half of what would be due to him by law). This rule cannot be circumvented either with the help of a will or with the help of an inheritance agreement (by the way, we wrote about it in one of our recent posts).
In an unofficial couple, all these guarantees are absent. To inherit, there must be a will of the second partner; there are no rights of the first-priority heir, and in case of inheritance without a will, there is no right to accept the inheritance. There is also no right to demand alimony (including for the maintenance of the mother of a joint child during pregnancy and for three years after the birth of the child - in official marriages this obligation of the spouse, including the former, exists).
✅ 8. You can get a tax deduction for a common child, regardless of whether you are married
To register, you must provide the child's birth certificate. The deduction is applied to personal income tax paid during the year and amounts to:
- 1,400 rubles - for the first child annually;
- 1,400 rubles - for the second child annually;
- 3,000 rubles - annually for the third and each subsequent child annually;
- 12,000 rubles - annually for each disabled child, full-time student, graduate student, resident, intern, student under the age of 24, if he is a disabled person of group I or II.
If one of the partners dies outside of marriage, the other will not be able to receive funeral benefits.
The vast majority of readers will involuntarily wince when reading this title. Of course, we prefer not to think about bad things and drive away thoughts of death.
Unfortunately, pills for immortality have not yet been invented. A funeral benefit does not compensate for the pain of loss, but in some cases it allows you to avoid aggravating the mental pain by urgently seeking a loan for the funeral of your partner and subsequent payments on it. Many take out loans from microfinance organizations out of desperation and time constraints, and are then forced to pay off debts for years.
For 2021, the funeral benefit in Moscow is 5,946 rubles. 47 kopecks for employed widowers and 16,946 rubles. 47 kopecks for unemployed and disabled citizens. Also in Moscow there is an additional payment from a constituent entity of the Russian Federation, it amounts to 11,000 rubles.
What rights does a common-law father have over a child?
He has the same rights as the mother of the child. It does not matter whether a child was born in a registered marriage or not, parents have equal rights in relation to him.
The main condition is that both are included in the child’s certificate.
The father's rights are as follows:
- give your last name and patronymic;
- participate in education;
- determine the place of study;
- spend vacations, weekends, and leisure time together with your child;
- represent the interests of your child in court, government agencies or other authorities;
- give / not give permission to carry out certain medical procedures;
- request the information he needs from preschool and school educational institutions;
- choose your own paid/free education;
- give / not give consent for the child and mother to travel to other countries;
- open a bank account in the name of a minor;
- exercise other rights in the interests of the child.
When exercising their rights, a parent must not forget that his main responsibility is the material support of his minor child. Therefore, he must pay child support regularly.
Otherwise, he will be limited in his rights or completely deprived of them. But only the court can do this!
But not only the father can ignore his responsibilities. Often mothers also behave in an unworthy manner, do not raise their children properly, and lead an antisocial lifestyle.
The father has every right to obtain full custody of his child. The mother can be deprived of her rights, but forced to pay child support.
All manipulations to determine the child’s place of residence and his future fate are carried out with the participation of the guardianship authorities, the prosecutor and the court.
