In accordance with Family Code Russian Federation divorce between citizens of the Russian Federation and foreign citizens or stateless persons, as well as marriage between foreign citizens on the territory of the Russian Federation is carried out in accordance with the legislation of the Russian Federation.
A citizen of the Russian Federation living outside the territory of the Russian Federation has the right to divorce a spouse living outside the territory of the Russian Federation, regardless of his citizenship, in a court of the Russian Federation. If, in accordance with the legislation of the Russian Federation, divorce is allowed in the civil registry office, the marriage can be dissolved in diplomatic missions or consular offices of the Russian Federation.
Divorce of marriage between citizens of the Russian Federation or dissolution of marriage between citizens of the Russian Federation and foreign citizens or stateless persons, committed outside the territory of the Russian Federation in compliance with the legislation of the relevant foreign state on the competence of the bodies that made decisions on divorce, and the legislation subject to application in the case of divorce , is recognized as valid in the Russian Federation.
Divorce of a marriage between foreign citizens, completed outside the territory of the Russian Federation in compliance with the legislation of the relevant foreign state on the competence of the bodies that made decisions on divorce, and the legislation to be applied upon divorce, is recognized as valid in the Russian Federation.
Along with the Family Code, the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, adopted in Minsk on January 22, 1993, is in force, according to which the legislation of the Contracting Party whose citizens are the spouses at the time of filing is applied in cases of divorce statements.
If one of the spouses is a citizen of one Contracting Party, and the other is a citizen of another Contracting Party, the legislation of the Contracting Party whose institution is considering the divorce case is applied.
The conflict of laws rule of the Convention uses two criteria for determining jurisdiction: the citizenship of the spouses and their place of residence. Moreover, the first provision of the specified conflict of laws rule determines the competence of judicial institutions to consider a divorce case solely on the basis of the principle of the citizenship of the spouses. As for the place of residence of spouses who are citizens of the same state, if both spouses live in the country of their citizenship, then the application of the rules of private international law and, in particular, the Convention is excluded, and the competence of the judicial institution in this case is determined solely on the basis of the rules of national legislation their states of residence.
If the marriage of spouses who are citizens of one of the states party to the Convention, but living in different states party to the Convention, is dissolved, then the institutions of the state of which they are citizens are competent.
Conflict of issues of personal and property relations between spouses, between parents and children
Personal non-property and property rights and obligations of spouses in various countries are defined differently. Basically, these legal relations are subject to the principle of joint residence.
In accordance with paragraph 1 of Art. 161 of the Family Code of the Russian Federation, personal non-property and property rights and obligations of spouses are determined by the legislation of the state in whose territory they have a joint place of residence, and in the absence of a joint place of residence by the legislation of the state in whose territory they had their last joint place of residence. Personal non-property and property rights and obligations of spouses who do not have a common place of residence are determined on the territory of the Russian Federation by the legislation of the Russian Federation.
The Family Code also speaks of the possibility of concluding a marriage contract, which is currently widespread due to fraudulent actions of one of the future spouses. When concluding a marriage contract or an agreement to pay alimony to each other, spouses who do not have a common citizenship or common place of residence may choose the legislation to be applied to determine their rights and obligations under marriage contract or under an agreement to pay alimony. If the spouses have not chosen the legislation to be applied, the provisions of paragraph 1 of this article apply to the marriage contract or their agreement on the payment of alimony.
Based on the desire to ensure that citizens of the Contracting Parties and persons living on their territories are provided in all Contracting Parties with respect to personal and property rights the same legal protection as their own citizens, the participating states signed the Convention on Legal Assistance and Legal Relations in Civil, family and criminal cases in Minsk on January 22, 1993
According to this Convention, the personal and property legal relations of the spouses are determined by the legislation of the Contracting Party in whose territory they have a joint residence.
If one of the spouses resides in the territory of one Contracting Party, and the other in the territory of the other Contracting Party, and both spouses have the same citizenship, their personal and property legal relations are determined by the legislation of the Contracting Party of which they are citizens.
If one of the spouses is a citizen of one Contracting Party, and the other is a citizen of the other Contracting Party, and one of them resides in the territory of one, and the other in the territory of the other Contracting Party, then their personal and property legal relations are determined by the legislation of the Contracting Party in whose territory they had their last joint residence.
If the persons did not have joint residence in the territories of the Contracting Parties, the legislation of the Contracting Party whose institution is considering the case shall apply.
The legal relations of spouses relating to their real estate are determined by the legislation of the Contracting Party in whose territory this property is located.
The legal status of the child comes from his belonging to a particular state, i.e. from his citizenship.
In accordance with Art. 12 Federal Law dated May 31, 2002 No. 62-FZ “On Citizenship of the Russian Federation” child acquires citizenship Russian Federation by birth, if on the child’s birthday:
1) both of his parents or his only parent have citizenship of the Russian Federation (regardless of the child’s place of birth);
2) one of his parents has citizenship of the Russian Federation, and the other parent is stateless, or is declared missing, or his location is unknown (regardless of the child’s place of birth);
3) one of his parents has citizenship of the Russian Federation, and the other parent is a foreign citizen, provided that the child was born on the territory of the Russian Federation, or if otherwise he will become a stateless person;
4) both of his parents or his only parent residing on the territory of the Russian Federation are foreign citizens or stateless persons, provided that the child was born on the territory of the Russian Federation, and the state of which his parents or his only parent are citizens does not provide the child with your citizenship. A child who is on the territory of the Russian Federation and whose parents are unknown becomes a citizen of the Russian Federation if the parents do not show up within six months from the date of his discovery.
According to the Determination of the Constitutional Court of the Russian Federation of April 21, 2005 No. 118-O, the provision of paragraph “a” of the first part of Art. 12 of the Federal Law “On Citizenship of the Russian Federation” does not prevent a person whose both parents or his only parent are recognized as citizens of the Russian Federation by birth, regardless of place of birth of this person in the territory former USSR in obtaining recognition of citizenship of the Russian Federation by birth, unless this person has lost citizenship of the Russian Federation by his own free will.
In accordance with the Family Code of the Russian Federation:
1) establishing and challenging paternity (maternity) are determined by the legislation of the state of which the child is a citizen by birth;
2) the procedure for establishing and challenging paternity (maternity) on the territory of the Russian Federation is determined by the legislation of the Russian Federation. In cases where the legislation of the Russian Federation allows for the establishment of paternity (maternity) in the civil registry office, the child’s parents living outside the territory of the Russian Federation, at least one of whom is a citizen of the Russian Federation, have the right to apply for the establishment of paternity (maternity) in diplomatic missions or consular offices of the Russian Federation. The rights and obligations of parents and children, including the obligation of parents to support children, are determined by the legislation of the state in whose territory they have a joint place of residence. In the absence of a joint place of residence of parents and children, the rights and obligations of parents and children are determined by the legislation of the state of which the child is a citizen.
Related information.
Divorce in private international law
· Divorce in the Russian Federation. Marriages between foreigners and citizens of the Russian Federation, as well as marriages between foreigners, are dissolved according to Russian law. Thus, citizens of the Russian Federation who live outside of Russia have the right to divorce a foreign spouse, regardless of his nationality, in a Russian court.
· Divorce outside the Russian Federation. Divorce between citizens of the Russian Federation or between foreigners and citizens of the Russian Federation, which was committed outside the Russian Federation, is also recognized in Russia.
· Divorce in a consular or diplomatic office. Such dissolution of a marriage is considered possible if the dissolution of the marriage itself is allowed outside judicial procedure.
Personal property and non-property relations of both spouses. This issue of choosing the applicable law is resolved on the basis of the territorial principle. If the spouses had or have a common place of residence, the conflict of choice is usually the so-called law of the state of the common last place of residence or place of residence.
International adoption of a child. When a child who is a citizen of the Russian Federation is adopted within Russian territory by foreign citizens, the applicable law is usually determined by the actual law of the adoptive parent. In addition, the requirements of the law of the Russian Federation, as well as the necessary provisions of international treaties relating to this international adoption with the participation of the Russian Federation, must be taken into account.
In such (international) adoption, when the actual nationality of the child and the adoptive parent does not coincide, special consent of the competent government authorities at the child’s place of residence may be required. At this adoption within the Russian Federation, Russian citizens of a foreign child must also obtain the consent of the competent authorities, but of the state of which the child is currently a citizen.
Marriage and family relations are complex relations of personal non-property and property nature, based on family ties and regulated by the norms of civil (in the broad sense of the word) law. In many countries there is no family law as an independent branch of law, and family law relations are regulated by civil law (Germany, Switzerland, France). In most modern countries, family law is separated from civil law, codified and represents an independent branch of law (Russian Federation, Algeria, countries of Eastern Europe and Latin America).
The procedure for dissolving marriages with a foreign element under Russian law is established in Art. 16 °CK, containing a “chain” of conflict of laws rules. Only Russian law, i.e., the law of the court, applies to the dissolution of any marriages on the territory of the Russian Federation. The right of Russian citizens to dissolve marriages with foreigners living outside the Russian Federation is legally established in Russian courts or in diplomatic and consular missions of the Russian Federation. The dissolution of any marriages outside the Russian Federation is recognized as valid in Russia, subject to the laws of the relevant foreign state. The main requirements are compliance with the requirements of foreign law on the competence of bodies and legislation on divorce.
Legal relations between spouses
By general rule conflict regulation of personal non-property relations of spouses is based on the application of the personal law of the husband and the personal law of the wife. The main conflict of law connection is the law of the last joint residence of the spouses. The defining principle has a territorial attribute. If the spouses have never lived together, then the law of the country of the forum applies. There is widespread use of the public policy clause. IN developed countries Equal rights of husband and wife are established by law. A peculiar regulation of personal relations between spouses takes place in Anglo-American law (Great Britain, USA). Spouses are required to create a conjugal community of life (consortium).
The problem of choosing what is applicable to the regulation of personal marital relations rights are resolved using a “chain” of conflict of laws rules. General conflict of law connection - the law of the country where the spouses live together; in the absence of a joint place of residence - the law of the state in whose territory the spouses had their last common residence. If the spouses have never lived together, the law of the country of the forum applies. In some countries (Great Britain, Germany, France), the dominant conflict of law is the personal law of the husband, which applies regardless of the different place of residence and different citizenship of the spouses.
The law applicable to issues of establishing and challenging paternity and maternity is defined in Art. 162 SK. The main conflict of laws is the law of the child’s citizenship by birth. Establishing (challenging) paternity (maternity) on the territory of the Russian Federation involves the application of Russian law. The legislator has established the right of Russian citizens outside the Russian Federation to contact diplomatic and consular missions of the Russian Federation regarding the resolution of these issues.
The rights and responsibilities of parents and children are regulated by Art. 163 SK. The main conflict of laws is the law of joint residence of parents and children. If there is no joint residence, the law of the child’s nationality applies. Alimony obligations and other relations presuppose the subsidiary application of the law of the child’s place of permanent residence. Maintenance obligations of adult children and other family members are determined by the law of joint residence (Article 164 of the Family Code). In the absence of a joint place of residence, the law of the state of which the person applying for alimony is a citizen is applied.
Adoption in international private law
The institution of adoption is one of the most ancient legal institutions(known since the Ancient World). Adoption is a complex legal and ethical issue because it requires a strong belief that the best interests of the child are being served. At the international level, the main issues of adoption are resolved in the European Convention on the Adoption of Children of 1967. last years Adoption by foreign citizens and adoption abroad have become extremely common. In this regard, in modern international law of the Russian Federation. At the same time, the need to comply with the family legislation of the Russian Federation and international treaties of the Russian Federation is established (Part 2, Clause 1, Article 165 of the Family Code). The adoption of children of Russian citizens by foreigners married to Russian citizens on the territory of the Russian Federation presupposes the application of Russian law, taking into account the international obligations of the Russian Federation. The legislator also established the application of the law of the competent institution in the event of adoption of a foreign citizen on the territory of the Russian Federation. A list of cases has also been established when adoption requires the consent of the competent institution of the Russian Federation, the legal representatives of the child and the child himself.
When possible violation rights of the child, it is necessary to refuse adoption or cancel the adoption in court. The consular offices of the Russian Federation are entrusted with the responsibility to protect the rights and interests of children - citizens of the Russian Federation, adopted by foreign citizens, outside the Russian Federation. When adopting children who are citizens of the Russian Federation outside the Russian Federation, the law of the competent institution of the state of which the adoptive parent is a citizen is applied. To carry out such an adoption, it is necessary to obtain prior permission from the competent authority of the Russian Federation.
Marriage in private private partnership.
The procedure for concluding marriage and its main forms from the point of view of its occurrence legal consequences V different countries are defined in fundamentally different ways: only the civil form of marriage (Russian Federation, Switzerland, France, Germany, Japan); religious only (Israel, Iraq, Iran, certain US states and Canadian provinces); alternatively one or the other (Great Britain, Spain, Denmark, Italy); simultaneously both civil and religious (Latin American states, states of the Middle East and Southeast Asia). Certain civil legal consequences also arise from illegal cohabitation with the management of a common household. In some US states, simple cohabitation after a certain period of time life together allows the court to establish a precedent for the presumption of legal marriage.
The conditions for marriage in national laws are also fundamentally different, but a number of common features can be identified: reaching the legal age for marriage; responsibility for concealing circumstances that impede marriage; prohibition of marriages between close relatives, adoptive parents and adopted children, guardians and wards; prohibition of marriage with persons with limited legal capacity or completely incapacitated persons; the need for explicit consent of the bride and groom.
The legislation of almost all countries provides for a special form of marriage – consular marriages. Such marriages are concluded in consulates or consular departments of embassies between citizens of the accreditation state located on the territory of a given foreign state. Consular marriages are concluded on the basis of consular conventions; The legislation of the accrediting state applies to such marriages. Some consular conventions provide for the requirement to take into account the law of the receiving state (Consular Convention between the Russian Federation and the United States).
The most pressing problem in marriage family relations with a foreign element – a large number of“lame” marriages, i.e. marriages that give rise to legal consequences in one state and are considered invalid in another. This problem arises from the fact that many countries do not recognize the form and procedure for marriage if it differs from their national regulations. For example, in Israel mixed marriages weddings concluded abroad are recognized only if the wedding took place in a synagogue. Lame marriages represent a serious destabilizing phenomenon in international life, give rise to legal uncertainty and entail Negative consequences. Recently, an attempt was made to eliminate these shortcomings with the help of the Hague Convention on the Settlement of Conflicts of Laws in the Field of Marriage of 1995. However, this Convention has not yet entered into force, since it has a limited circle of participants and states that do not recognize marriages concluded abroad, have not acceded to the Convention.
The general conflict of laws bindings for resolving the issue of marriage are the personal law of both spouses (the internal conditions of marriage are subject to it) and the law of the place of marriage (determines the form and procedure for marriage). These links are provided for both in national legislation and in the Hague Convention on the Settlement of Conflicts of Laws in the Field of Marriage.
When concluding mixed and foreign marriages on the territory of Russia, their order and form are subject to Russian legislation (clause 1 of article 156 of the IC). The legislator has provided for the cumulation of conflict of laws links. The conditions for marriage are determined by the personal law of each spouse (i.e., it is possible to apply simultaneous decisions of two legal systems). In this case, it is necessary to take into account the provisions of Russian law regarding circumstances that prevent marriage (clause 2 of Article 156 of the Family Code).
Regulation of the procedure for marriage of bipatrids and stateless persons is carried out in a special manner. If a binational also has Russian citizenship, the conditions for his marriage are determined by Russian law. For persons with multiple citizenship, the conditions for marriage are determined by state legislation at the choice of the person himself (clause 3 of Article 156 of the Family Code). When determining the conditions for marriage for stateless persons, the law of the state of their permanent place of residence is applied (clause 4 of Article 156). Thus, in Art. 156 of the IC establishes a “chain” of conflict of laws rules, regulating the procedure for concluding marriage differently for different categories individuals. Marriages between foreigners concluded in consular and diplomatic missions of foreign states on the territory of the Russian Federation are recognized as valid on the basis of reciprocity (clause 2 of article 157 of the Family Code).
Marriages outside the territory of the Russian Federation are regulated in paragraph 1 of Art. 157 and art. 158 SK. Norm clause 1 art. 157 IC raises many questions: what character does it have - imperative or dispositive; what exactly it establishes – the right or obligation for citizens of the Russian Federation to enter into marriages abroad in diplomatic or consular offices of the Russian Federation; Do Russian citizens have the right to marry each other outside the Russian Federation, not in diplomatic or consular institutions of the Russian Federation, but in local authorities marriage registration? Marriages concluded between Russian and foreign citizens outside the Russian Federation are recognized as valid in Russia if their form and procedure comply with the law of the place where the marriage was concluded and the requirements of Art. 14 SK.
In connection with some specific trends in the development of family law abroad (the Netherlands, Sweden, the USA, etc.), the problem of recognition in the Russian Federation of same-sex marriages concluded between Russian and foreign citizens outside the Russian Federation arises, since Russian legislation does not directly prohibit same-sex marriages. Marriages between foreigners concluded outside the Russian Federation are recognized as valid subject to the laws of the place where the marriage was concluded. The invalidity of marriages with a foreign element is determined by the legislation that was applied when the marriage was concluded (Article 159 of the Family Code).
According to Russian legislation divorce carried out either in court or in the registry office. The registry office can dissolve a marriage by mutual consent of spouses who do not have common minor children, as well as in some other cases provided for by law. If you have minor children or if one of the spouses does not consent to divorce, you must go to court.
Divorce between Russian and foreign citizens or stateless persons, as well as between foreign citizens on the territory of the Russian Federation occurs in accordance with Russian legislation (clause 1 of Article 160 of the RF IC). In these cases, the application of the law of the country of citizenship of foreign spouses is not provided.
According to paragraph 2 of Art. 160 of the RF IC, a Russian citizen living outside the territory of Russia has the right to divorce a spouse living outside the territory of Russia, regardless of his citizenship, in a court of the Russian Federation. Thus, it is possible to dissolve the marriage of a Russian citizen with a foreigner living abroad in a Russian court. The introduction of this rule into Russian legislation is explained by a number of reasons, in particular by the fact that in some countries foreigners are deprived of the right to apply to court for divorce.
At consideration of divorce cases the court applies Russian legislation unless otherwise follows from the international treaties concluded between the Russian Federation and foreign states. Since, except in cases provided for by an international treaty, the application of foreign law is excluded, a divorce carried out in Russia may not be recognized abroad.
Marriages between Russian citizens and marriages of Russian citizens with foreign citizens (and stateless persons) can be dissolved abroad by the competent authorities of foreign states. The general rule providing for this possibility is enshrined in the RF IC. According to paragraph 3 of Art. 160 of the RF IC, the dissolution of a marriage between citizens of the Russian Federation and foreign citizens or stateless persons, committed outside the territory of Russia in compliance with the legislation of the relevant foreign state on the competence of the bodies that made the decision on divorce, and the legislation subject to application in the case of divorce, is recognized as valid in the Russian Federation. Documents issued to foreigners to certify a divorce completed according to the laws of the relevant states are recognized as valid in the Russian Federation.
In some countries, state registration of a court decision on divorce is required, and only after such registration the marriage is considered terminated, and the relevant persons have the right to enter into a new marriage. According to the legislation of most foreign countries, a court decision on divorce is final, and state registration divorce is not required (in the USA, for example, the court issues a divorce certificate). It follows that in the event of a divorce in these states, upon remarriage, the Russian registry office should not require foreign citizens to obtain a certificate from the registry office of foreign states on divorce.
Russian legislation establishes relevant rules regarding the recognition of divorces between foreign citizens committed abroad. According to paragraph 4 of Art. 160 of the RF IC, the dissolution of a marriage between foreign citizens, committed outside the territory of Russia “in compliance with the legislation of the relevant foreign state on the competence of the bodies that made decisions on divorce, and the legislation subject to application in the case of divorce, is recognized as valid in the Russian Federation.”
