• Basic principles (principles) of family law
    • Main directions of state family policy in the Russian Federation
  • System and sources of family law
    • Sources of family law
  • Grounds for applying civil law and international law to family relations
    • Application of international law to family relations
  • Exercise and protection of family rights
    • Protection of family rights
    • Ways to protect family rights
  • Limitation periods in family law
  • The concept of marriage. Conditions and procedure for its conclusion. Nullity of marriage
    • Concept of marriage under family law
    • Conditions for marriage. Obstacles to marriage
      • Obstacles to marriage
    • Medical examination of persons entering into marriage
    • Marriage procedure
    • Nullity of marriage
      • Persons who have the right to demand that a marriage be declared invalid
      • Circumstances eliminating the invalidity of a marriage
      • Legal consequences of declaring a marriage invalid
  • End of marriage
    • Concept and grounds for termination of marriage
    • Divorce in the registry office
      • Divorce in the registry office at the request of one of the spouses
    • Divorce in court
      • Divorce in court with mutual consent of the spouses to dissolve the marriage
      • Divorce in court in the absence of consent of one of the spouses to divorce
      • Issues resolved by the court when making a decision on divorce
    • The moment of termination of marriage upon its dissolution
      • Legal consequences of divorce
    • Restoration of marriage in the event of the appearance of a spouse declared dead or recognized as missing
  • Rights and responsibilities of spouses
    • Personal non-property legal relations between spouses
    • Property relations between spouses
    • Legal regime of marital property
      • Possession, use and disposal of common property of spouses
      • Property of each spouse (separate property)
      • Division of common property of spouses
    • Contractual regime of spouses' property
      • Change and termination of the marriage contract
      • Invalidation of a marriage contract
    • Responsibility of spouses for obligations
  • Rights and responsibilities of parents and children
    • Establishing the origin of children
      • Voluntary establishment of paternity
      • Establishing paternity in court
      • Legal consequences of voluntary or judicial establishment of paternity
      • Entry of the child's parents in the birth register
      • Challenging paternity (maternity)
    • Rights of minor children
      • Personal non-property rights of minor children
        • The child’s right to express his or her opinion
        • The child’s right to a first name, patronymic and last name
      • Property rights of minor children
    • Rights and responsibilities of parents
      • Exercise of parental rights by minor parents
      • Rights and responsibilities of parents regarding the upbringing and education of children
      • Rights and responsibilities of parents to protect the rights and interests of children
      • Parents' right to protection of parental rights
      • Exercise of parental rights by a parent living separately from the child
    • Disputes related to raising children
      • Participation of the guardianship and trusteeship authority in court consideration of disputes related to the upbringing of children
      • Execution of court decisions in cases related to raising children
    • Deprivation of parental rights and their restoration
      • Restoration of parental rights
    • Restriction of parental rights and its cancellation
      • Cancellation of restrictions on parental rights
      • Immediate (pre-trial) removal of a child from his parents
  • Alimony obligations of family members
    • General characteristics of alimony obligations
    • Maintenance obligations of parents and children
      • Amount of alimony for minor children collected in court
      • Responsibilities of parents for the maintenance of disabled adult children
      • Participation of parents in additional expenses for children
      • Responsibilities of adult children to support their parents
      • Participation of adult children in additional expenses for parents
    • Alimony obligations of spouses and former spouses
      • Alimony obligations of former spouses
      • Release of a spouse from the obligation to support the other spouse or limitation of this obligation for a period
    • Alimony obligations of other family members
      • Responsibility of pupils to support their actual teachers
      • Responsibilities of grandparents for the maintenance of grandchildren
      • Responsibilities of brothers and sisters for the maintenance of their minor and disabled adult brothers and sisters
    • Agreements on payment of alimony
      • Form of agreement on payment of alimony
      • The procedure for concluding, executing, changing, terminating and invalidating an agreement on the payment of alimony
      • Contents of the alimony agreement
      • Indexation of the amount of alimony paid under an alimony agreement
    • Procedure for payment and collection of alimony
      • Deadlines for applying for alimony
      • Collection of alimony until the dispute is resolved by the court
      • Obligation of the organization's administration to withhold alimony
      • Foreclosing on the property of a person obligated to pay alimony
      • Determination of alimony debt
      • Grounds for exemption from payment of alimony debt
      • Inadmissibility of offset and reverse collection of alimony
      • Indexation of alimony
      • Payment of alimony in the event of a person obligated to pay alimony leaving for a foreign country for permanent residence
      • Responsibility for late payment of alimony
    • Changing the amount of alimony established by the court and exemption from its payment
    • Termination of alimony obligations
  • Forms of raising children without parental care
    • Identification and placement of children left without parental care
      • Guardianship and trusteeship authorities
      • State data bank on children left without parental care
      • Forms of placement (upbringing) of children left without parental care
    • Adoption of children and its cancellation
      • Registration of children subject to adoption and persons wishing to adopt children
      • Persons entitled to be adoptive parents
      • Terms of adoption
      • Adoption procedure
      • Issues resolved by the court when adopting a child
      • Legal consequences of adopting a child
      • Grounds, procedure and legal consequences of cancellation of adoption
    • Guardianship and trusteeship of children
      • Guardianship and trusteeship of children in educational, medical institutions and social protection institutions
      • Rights of children under guardianship (trusteeship)
      • Rights of children left without parental care and in educational institutions, medical institutions and social protection institutions
      • Rights and responsibilities of a child's guardian (trustee)
    • Adoptive family
      • Contents of the agreement on the transfer of a child (children) to a foster family
      • Rights and responsibilities of adoptive parents
      • Rights of a child(ren) placed in a foster family
      • Financial support for a foster family
  • Application of family law to family relationships involving foreign persons and stateless persons
    • Grounds for applying the norms of foreign family law to family relations
    • Legal regulation of marriage and divorce involving foreign citizens and stateless persons
      • Invalidity of a marriage concluded on the territory of the Russian Federation or abroad
      • Divorce between citizens of the Russian Federation and foreign citizens
    • Legal regulation of personal non-property and property relations of spouses in the presence of a foreign element
    • Legal regulation of personal non-property and property relations between parents and children and other family members in the presence of a foreign element
    • Legal regulation - adoption in the presence of a foreign element
    • Establishing the content and limiting the application of foreign family law norms
      • Limitation of the application of foreign family law norms

    • Nullity of marriage

    In accordance with Art. 27 of the Family Code, a marriage entered into in violation of the conditions and (or) in spite of the obstacles provided for in Art. 12-14 and paragraph 3 of Art. 15 of the IC, as well as a marriage entered into without the intention of the spouses or one of them to start a family (the so-called fictitious marriage).

    Every marriage registered in accordance with the procedure established by law is assumed to be legally completed, i.e. valid. Therefore, before a marriage is declared invalid, it exists with all the ensuing legal consequences. A marriage can only be declared invalid by a court.

    Until the court makes a decision to recognize a marriage as invalid, the persons involved in it are considered spouses with corresponding mutual rights and obligations. All legal consequences of marriage are annulled only on the basis of a court decision declaring the marriage invalid. No other body other than the court has the authority to consider a case of declaring a marriage invalid. The court recognizes a marriage as invalid through a claim proceeding.

    The presumption of the validity of a marriage concluded in accordance with the procedure established by law did not raise doubts both in the theory of Soviet family law and in modern legal literature. In recent decades, the point of view on the recognition of marriage as invalid as a sanction for violations of family law committed by the married persons (or one of them) has not changed.

    A specific list of grounds for declaring a marriage invalid is defined in paragraph 1 of Art. 27 IC, is exhaustive and is not subject to broad interpretation.

    TO grounds for declaring marriage invalid the following circumstances apply:

    1. lack of mutual voluntary consent of a man and woman entering into marriage;
    2. failure of married persons (or one of them) to reach marriageable age, if it has not been reduced in accordance with the procedure established by law;
    3. the presence of the married persons (or one of them) of another undissolved marriage;
    4. marriage between close relatives; marriage between the adoptive parent and the adopted child;
    5. marriage between persons, at least one of whom has been declared incompetent by a court due to a mental disorder;
    6. concealment by one of the persons entering into marriage of a sexually transmitted disease or HIV infection;
    7. entering into a fictitious marriage, i.e. if the spouses or one of them registered a marriage without the intention of starting a family.

    To declare a marriage invalid, it is sufficient to confirm in court one of the listed grounds, although in practice a combination of them may be present. Let's look at them in more detail.

    Absence of mutual voluntary consent of a man and woman entering into marriage, is often called in the theory of family law, by analogy with civil law, a vice of the will when entering into a marriage. Defect of will during marriage can be due to various reasons, the main of which, as a rule, include those provided for in Art. 28 IC circumstances: coercion into marriage (use or threat of use of physical or mental violence); deception; delusion of the person entering into marriage (misconception about the identity of the future spouse and the circumstances of the marriage that are of significant importance), the inability of the person at the time of marriage due to his condition to account for his actions and manage them (drug or alcohol intoxication, serious illness) .

    In particular, in judicial practice, a marriage is recognized as invalid if consent to its conclusion was given by a person who at that time, due to an illness, could not account for and manage his actions, and upon recovery did not continue the marital relationship. In cases of this category, the court may order a forensic psychiatric examination (in order to determine the person’s ability to account for his actions and manage them upon entering into marriage) or a forensic psychological examination (in order to identify the characteristics of mental processes and the person’s state that would allow draw a correct conclusion about his ability to understand the actual content of the committed action in the form of marriage and the ability to volitionally control it) in order to prove the presence of a defect of will as a legally significant circumstance when entering into marriage.

    For declaring a marriage invalid, the specific reasons that determined the lack of mutual voluntary consent of the man and woman entering into marriage (coercion, deception, delusion, the inability of a person to account for and manage his actions when concluding a marriage) are not essential, since in any of the above cases, regardless of its specific manifestations, there is a discrepancy between the formal expression of the will and the actual will of those entering into marriage or an erroneous expression of the will of those entering into marriage, i.e. the established Art. is violated. 12 IC condition of voluntary marriage.

    Another basis for declaring a marriage invalid is failure of the persons entering into marriage (or one of them) to reach marriageable age at the time of marriage, if it has not been reduced in accordance with the established procedure by a local government body. State registration of a marriage with a person who has not reached the marriageable age and does not have a local government decision to reduce it may be the result of both violations on the part of the registry office employees and deception on the part of the persons entering into marriage (for example, false information about age is provided ).

    The recognition of marriage as invalid in this case is predetermined by the interests of the minor spouse. Therefore, in accordance with paragraph 2 of Art. 29 of the Family Code, the court may refuse a claim to invalidate a marriage concluded with a person under marriageable age if the interests of the minor spouse so require (for example, a minor wife is pregnant or has given birth to a child), as well as in the absence of his consent to invalidate the marriage.

    The unconditional grounds for declaring a marriage invalid are violations of the provisions of Art. 14 IC requirements on obstacles to marriage. First of all, they include marriage between persons, at least one of whom is already in another registered marriage, which violates both the direct prohibition of the UK and the principle of monogamy (monogamy), according to which a man and a woman have the right to be in only one registered marriage at a time. Violation of the principle of monogamy (often found in judicial practice) is the basis for declaring a marriage invalid.

    In all cases, only the second marriage is considered invalid, i.e. subsequent. However, it should be borne in mind that if this basis has disappeared by the time the court considers the case on declaring the marriage invalid due to the termination of the previous marriage (dissolved in the registry office or in court), then, as follows from paragraph 1 of Art. 29 of the IC, a subsequent marriage may be recognized by the court as valid.

    The basis for recognizing a marriage as invalid is the marriage between close relatives (relatives in direct ascending and descending lines, as well as between full and half brothers and sisters) or the marriage between adoptive parents and adopted children, since their relationship, according to Art. 137 of the IC are equated to the relationship between parents and children by origin (unless the adoption is canceled in the manner prescribed by Articles 140-144 of the IC). Cases of declaring a marriage invalid on these grounds are almost never found in judicial practice. However, even if a marriage between close relatives is concluded, it cannot be recognized by the court as valid under any circumstances.

    It is noteworthy that violation of the marriageable age, bigamy (bigamy), marriage between close relatives could be considered by the church authorities in Russia as grounds for declaring a marriage invalid or for dissolving a marriage back in the 18th century.

    A marriage is recognized as invalid if it was concluded between persons, at least one of whom is recognized by the court as incompetent due to a mental disorder in the manner established by civil procedural legislation. An incapacitated person cannot understand the meaning of his actions or direct them and, therefore, is not able to express his informed will to enter into marriage.

    At the same time, it is possible that after marriage, this person, due to recovery, is recognized by the court as capable and consciously expresses his will to continue the marriage, and therefore the circumstance that is the basis for declaring the marriage invalid has disappeared. In this case, the court, according to Art. 29 The IC can recognize such a marriage as valid.

    Another basis for declaring a marriage invalid in accordance with paragraph 1 of Art. 27 of the IC is the concealment by one of the persons entering into marriage of a sexually transmitted disease or HIV infection, but not the very fact of the presence of such a disease in one of the spouses. If the person entering into marriage did not hide the fact of his venereal disease or HIV infection, then there is no basis for declaring the marriage invalid.

    Thus, what has legal significance is not the presence of one of these diseases in a spouse, but the fact that he concealed it upon marriage, since in this case the health (and sometimes the life) of the other spouse and the unborn child is jeopardized. In addition, infecting another person with a sexually transmitted disease by a person who knew that he had this disease, as well as knowingly putting another person at risk of contracting HIV infection, is a criminal offense.

    Especially in paragraph 1 of Art. 27 of the IC identifies the basis for recognizing a marriage as invalid as the fictitiousness of the marriage. A fictitious marriage is one entered into without the intention of the spouses (one of them) to start a family, but only for the purpose of taking advantage of the rights and benefits of a property or other nature arising from it (the right to living space, the right to register at the spouse’s place of residence, the right to the spouse’s property in the event his death, the right to a pension, etc.).

    Therefore, the external expression of the will of the persons entering into marriage (or one of them) in such situations does not correspond to its internal content and the true intentions of the doctors (or one of them). In this regard, in the legal literature, the legal nature of a fictitious marriage is compared with the legal nature of a fictitious transaction, since in both cases certain legal actions are performed without the intention of causing corresponding legal consequences, i.e. marriage is just for show, without the intention of starting a family. In the theory of family law, it is recognized as necessary to distinguish the concept of a fictitious marriage from the so-called failed marriage, as well as from a marriage of convenience, although the law does not mention such marriages. A “failed marriage” is a marriage concluded in violation of the rules (procedures) for its registration (for example, a marriage was registered in the absence of one of the spouses, in absentia, through an authorized person, upon presentation of someone else’s passport, etc.).

    A “failed marriage” does not exist legally and therefore does not need to be declared invalid. The civil registration of such a marriage is canceled on the basis of a court decision made at the request of the interested party (Article 75 of the Law on Civil Status Acts). A “marriage of convenience” is a marriage concluded, albeit for certain selfish reasons on the part of one or both spouses, but with the unconditional actual purpose of creating a family, whereas when concluding a fictitious marriage, such a goal is completely absent.

    Despite the fact that “marriage of convenience” has a negative assessment in society, it cannot be declared invalid, since it is aimed not only at obtaining some benefits (material, social, etc.), but also at establishing marital rights and responsibilities.

    Cases on declaring a marriage invalid on the basis of a fictitious marriage are not uncommon in judicial practice. Moreover, a marriage can be recognized as fictitious both if there is no goal of creating a family for both persons entering into marriage, or if one of the spouses does not have such a goal. From the point of view of proof, cases of fictitious marriage present significant difficulties for the court, especially when only one of the spouses had no intention of starting a family, since this unscrupulous spouse creates the appearance of a family for a certain time, and having received what he wanted (the right to register at the spouse’s place of residence , the right to use residential premises, etc.), dramatically changes his behavior (demands for divorce, division of living space).

    The fictitious nature of a marriage can be proven by any evidence permitted by civil procedural law, including the testimony of witnesses. The court is obliged to evaluate all the evidence available in the case related to the marriage (duration of the parties being married; joint management of a common household or its absence; the presence or absence of children in the marriage and the reasons for this fact; direct evidence of a fictitious marriage; other significant circumstances).

    The question of whether a marriage is fictitious must be decided by the court on the basis of a thorough, comprehensive study of all the circumstances of the case and an assessment of the collected evidence. A marriage can be declared invalid by a court only if it is proven that the marriage was registered by the spouses or one of them without the intention of starting a family.

    Thus, a characteristic feature of a fictitious marriage is the fact that it is concluded without the intention of creating a family, since the persons entering into it (or one of them) have as their goal the receipt of certain benefits or advantages of both a property and non-property nature.

    In accordance with paragraph 3 of Art. 29 of the Family Code, a marriage cannot be recognized as fictitious if the persons who entered into it actually created a family before the case was considered by the court, i.e., despite the initial intentions, a marital relationship nevertheless developed between the parties.

    Any other circumstances not directly provided for in paragraph 1 of Art. 27 of the Family Code (for example, silence by one of the persons entering into marriage about the presence of children or the inability to have them for health reasons, concealment of an illness (with the exception of venereal or HIV infection), or violation of the requirements established by law for the procedure for concluding a marriage (for example, registration of marriage before the expiration of a month from the date of filing the application with the registry office, unless this period has been reduced in Russia in the manner provided for in paragraph 1 of Article 11. In such cases, it is only possible to raise the issue of ending the marriage on the initiative of the spouse (spouses).

    As already noted, a marriage can be declared invalid only by a court in civil proceedings, i.e. at the claim of eligible persons specified in Art. 28 SK. In practice, there are cases of filing claims in court with the plaintiff putting forward two demands: to declare the marriage invalid and to dissolve the marriage. Simultaneous presentation of such demands by a party is impossible.

    Nevertheless, the court has the right to consider in one proceeding both the interrelated demands of the spouses for the dissolution of the marriage and for the recognition of its invalidity (here, each of the spouses puts forward an independent demand: one for the dissolution of the marriage, the other for the recognition of the marriage as invalid, or vice versa).

    It should also be borne in mind that, according to paragraph 4 of Art. 29 of the Family Code, a marriage cannot be declared invalid after its dissolution (both in court and by the registry office), except in cases where the validity of the marriage is disputed on the grounds of the presence between the spouses of a degree of kinship prohibited by law or the condition of one of them at the time of state registration marriage in another undissolved marriage.

    The requirement to recognize a marriage as invalid is not subject to a statute of limitations, except for the case expressly provided for by the UK: when one of the persons entering into a marriage concealed the presence of a sexually transmitted disease or HIV infection from the other person. The claim of a spouse whose rights are violated by the conclusion of such a marriage is subject to the statute of limitations established by Art. 181 Civil Code, i.e. one year from the day the spouse learned or should have learned about the other spouse’s concealment of a sexually transmitted disease or HIV infection upon marriage.

    The operative part of the court decision to recognize a marriage as invalid shall indicate the time of state registration of the marriage, the number of the marriage certificate and the name of the registry office that registered the marriage. In Art. 27 of the IC establishes the obligation of the court, within three days from the date of entry into legal force of the court decision to recognize the marriage as invalid, to send an extract from this court decision to the registry office at the place of state registration of the marriage.

    In turn, the registry office, upon receipt of an extract from the court decision in accordance with Art. 75 of the Law on Civil Status Acts must cancel the record of the marriage act, making an appropriate note in it indicating when and by which court the decision was made to declare the marriage invalid. In the identity document of the former spouse, the registry office that annulled the entry makes a corresponding note, which is certified by the official’s signature and seal.

    A marriage is declared invalid from the date of its conclusion (clause 4 of Article 27 of the Family Code), and not from the date of the court’s decision. Thus, marriage legal relations, and therefore the rights and obligations of spouses, are canceled from the moment of marriage due to the retroactive effect of a court decision declaring the marriage invalid.

    Under annulment of marriage means the annulment of a marriage and all its legal consequences from the moment of its conclusion, i.e. from the moment of state registration of marriage in the registry office.

    Grounds for invalidating a marriage established in paragraph 1 of Art. 27 RF IC. These include the following circumstances:

    1. Marriage in the absence of conditions established by law for marriage: mutual voluntary consent of persons entering into marriage and their achievement of marriageable age, if this age has not been reduced in the manner prescribed by law (Articles 12 and 13 of the RF IC).

    2. Concluding a marriage if there are obstacles to its conclusion: the presence of another registered marriage, close relationship, adoption relationship or incapacity of the persons (persons) who entered into the marriage (Article 14 of the RF IC).

    3. Concealment of HIV infection or sexually transmitted disease by one of the spouses during marriage(Article 15 of the RF IC).

    4. Conclusion of a fictitious marriage, those. marriage without the intention of the spouses (or one of them) to start a family. The purpose of entering into such a marriage is the desire to obtain any rights or benefits arising from the very fact of registering a marriage, for example, the right to living space.

    No other circumstances other than those listed in paragraph 1 of Art. 27 of the RF IC cannot serve as a basis for declaring a marriage invalid. Thus, violation of the requirements established by law for the procedure for concluding a marriage cannot serve as a basis for declaring a marriage invalid, for example, registering a marriage before the expiration of a month from the date of filing an application with the registry office, if this period has not been reduced in the manner provided for in paragraph 1 of Art. 11 IC of the Russian Federation.

    With a general approach to the legal consequences of breaking the law during marriage, the norms of family law, based on the goals of strengthening the family, protecting the interests of spouses and children, oblige the court to take into account the specifics of each specific case. Yes, Art. 29 of the RF IC provides that if, by the time the case is considered, the circumstances that prevented the conclusion of a marriage have ceased (for example, a previous marriage is dissolved, the spouse who was a minor at the time of the marriage has reached the age of majority, the spouse who was incompetent at the time of the marriage has recovered and is recognized as capable) , etc.), the court may recognize this marriage as valid. In the theory of family law, this is called “sanitation (improvement) of marriage.” Sanitation of a marriage is impossible if the marriage is declared invalid due to the close relationship of the spouses.

    The law also takes into account the need to carefully resolve the issue of the invalidity of a marriage concluded with a minor (if at the time of consideration of the case he has not yet reached the age of majority - marriageable age). According to paragraph 2 of Art. 29 of the RF IC, in these cases, the court may refuse the claim (to the parents, the guardianship and trusteeship authority or the prosecutor) if this is required by the interests of the minor spouse or if this spouse does not agree with the recognition of his marriage as invalid.

    For example, the parents of seventeen-year-old K. filed a lawsuit to declare their daughter’s marriage invalid. The girl went to study in another city. There I met and fell in love with a young doctor. With the help of his relative, a registry office employee, the young people registered their marriage without unnecessary “formalities.” The indignation of the girl's parents knew no bounds. However, the court found that she was completely satisfied with her marriage and was not going to change anything in her life. In her family there is peace, love, mutual understanding and a child will soon appear. Under such circumstances, in the interests of minor K., the court rejected her parents’ claim.

    Entering into a marriage without the intention of starting a family (a fictitious marriage) in itself also does not entail the recognition of such a marriage as invalid. There are cases in life when a man and a woman who entered into a fictitious marriage (for example, in order to acquire the right to housing) subsequently decide to create a real family, i.e. actually become husband and wife. If genuine family relationships between them arose before the case was considered in court, the court cannot recognize the fictitious marriage as invalid (Clause 3 of Article 29 of the RF IC).

    The presence of family relationships is confirmed by such circumstances as living together, acquiring property for joint use, mutual care for each other, mutual material support, revealing one’s marital relationship to third parties (in personal correspondence, in communication, etc.) and other characteristic for spouses relationships.

    It is impossible to recognize a marriage as invalid after its dissolution, since the court, when dissolving a marriage, proceeds from its validity. This rule does not apply to the recognition of a marriage as invalid due to close kinship between spouses and due to the condition of one of the spouses in another undissolved marriage (Clause 4 of Article 29 of the RF IC).

    The procedure for recognizing a marriage as invalid

    A marriage can be declared invalid only by a court through a lawsuit. according to the rules established by the Code of Civil Procedure of the RSFSR. In the absence of a court decision, no one has the right to refer to the invalidity of a marriage, even when presenting evidence of the illegality of its conclusion.

    A marriage is declared invalid not from the day the court decision enters into legal force (for the future), but from the day of its conclusion, i.e. from the date of its state registration with the registry office. Based on a court decision declaring the marriage invalid, which must be sent to the registry office within three days, the record of the marriage act (and, accordingly, the marriage certificate) is canceled and the marriage is considered non-existent. Persons who have been in such a “marriage” lose all rights and obligations of spouses, with the exception of certain cases provided for by law (Article 30 of the RF IC) in order to protect the rights of a conscientious spouse and children born in such a marriage (see Consequences of declaring a marriage invalid ).

    Persons whose circle is defined in Art. 28 of the RF IC in relation to each specific basis for declaring a marriage invalid. This approach makes it possible to ensure the protection of the rights of citizens, preventing interference in their family and personal lives by strangers. The proper plaintiffs in this category of cases are persons whose rights are violated by the conclusion of this marriage (for example, only a spouse who has reached marriageable age - if a marriage entered into by him before reaching this age is declared invalid), as well as the guardianship and trusteeship authority and the prosecutor acting in protection of both the rights of citizens and state interests (for example, a prosecutor - when invalidating a fictitious marriage, when both spouses entered into a marriage without the intention of starting a family).

    When accepting a statement of claim, the judge finds out on what basis the validity of the marriage is being challenged (clause 1 of Article 27 of the RF IC) and whether the plaintiff belongs to the category of persons who, by virtue of Art. 28 of the RF IC has the right to raise the issue of declaring a marriage invalid precisely on this basis. If the applicant does not belong to such persons (that is, he is an improper plaintiff), the judge refuses to accept his statement of claim on the basis of paragraph 1 of Art. 129 Code of Civil Procedure of the RSFSR.

    Regardless of who brought the claim to invalidate a marriage concluded with a person under marriageable age, as well as with a person declared incompetent by the court, the court is obliged to involve in the case the guardianship and trusteeship authority, which, in accordance with civil legislation (Article 31 and 34 of the Civil Code of the Russian Federation) carries out functions to protect the rights of incapacitated and minors.

    Disputes about declaring a marriage invalid should be distinguished from cases of challenging the correctness of legal records of marriage. This occurs, for example, when registering a marriage by one person without the knowledge and consent of the other using forged documents, in the absence of one of the parties to the marriage, although he has submitted an application for marriage registration. In these cases, it is impossible to talk about any marriage: it simply does not exist, and the official record of its conclusion does not reflect the true state of affairs. Since there is no marriage at all, there is no need to recognize this kind of “failed marriage” as invalid. The entry made is canceled by the registry office based on the relevant court decision.

    Consequences of declaring a marriage invalid

    A marriage declared invalid by a court is considered non-existent. Persons in such a marriage have no rights or obligations of spouses.(personal and property) as a general rule is not recognized(clause 1 of article 30 of the RF IC). For example, property acquired during marriage is not considered common property of the spouses, and the right to alimony does not arise. A spouse who has adopted the surname of the other spouse during marriage registration is assigned his premarital surname.

    The legal relations of persons who were in a marriage declared invalid regarding their property are regulated by the norms of the Civil Code of the Russian Federation on shared ownership (Articles 244, 245 and 252 of the Civil Code of the Russian Federation), and not by the norms of the RF IC on joint property of spouses. This means that property acquired in such a “marriage” is considered to belong to the spouse who acquired it with his own funds. The other spouse may demand recognition of his right to a share in this property only if he participated in its acquisition with his own funds. The size of this share will depend on the amount of funds invested. The rules of the RF IC stipulate that property acquired by spouses during marriage (common property of spouses) is their joint property, regardless of the name of which spouse it was acquired or the name of which or which spouse contributed funds (Article 34 RF IC), and the equal share of each spouse in the event of division of their common property (Article 39 RF IC) does not apply to relations between persons who were in an invalid marriage (clause 2, Article 30 RF IC).

    From the general rule that persons in an invalid marriage lose all rights and obligations of spouses, there are exceptions established by law for a conscientious spouse(Clause 4 and 5 of Article 30 of the RF IC).

    A bona fide spouse is a spouse who did not know about the existence of obstacles to marriage and whose rights were violated by entering into an invalid marriage.

    The conscientiousness of the spouse is established by the court. When establishing this fact, regardless of the grounds for the invalidity of the marriage, the court has the right to recover from the other (guilty) spouse alimony for the maintenance of the conscientious spouse, if the latter is disabled and in need or is caring for a disabled child, and also if the conscientious spouse is a pregnant wife or wife caring for a child under three years of age.

    If, when a marriage is declared invalid, the question arises about the division of property acquired jointly before the marriage was declared invalid, then the court in these cases (if the spouse is in good faith) divides it according to the norms of the RF IC (Articles 34, 38 and 39) on joint property of spouses ( see Property Rights and Obligations of Spouses).

    A bona fide spouse also has the right to demand from the other guilty spouse compensation for losses incurred as a result of a marriage that was subsequently declared invalid, as well as compensation for moral damage, which are carried out according to the norms of civil law (Articles 15 and 151 of the Civil Code of the Russian Federation).

    Moral harm is the physical or moral suffering that a citizen undergoes as a result of a violation of his rights. For example, when a marriage is declared invalid, the moral experiences of a conscientious spouse in connection with a change in lifestyle, place of residence, physical pain due to a disease resulting from experienced moral suffering, etc.

    Moral damage is compensated in monetary form in an amount determined by the court. Its size depends on the nature and depth of the physical and moral suffering of the victim, the degree of guilt in this of the harm-doer, taking into account the individual characteristics of the victim.

    A conscientious spouse also has the right to retain the surname assigned to him upon marriage (Clause 5, Article 30 of the RF IC).

    Recognition of a marriage as invalid does not affect the rights of children born in such a marriage (or within 300 days from the date of recognition of the marriage as invalid). They are fully equal to the rights of children born in marriage (clause 3 of article 30 of the RF IC). The issue of place of residence, maintenance of children if the marriage is invalid and other issues related to the relationship between parents and children are resolved in the same way as in the case of parental divorce (see Divorce).

    To study the concept of invalidity of marriage and the peculiarities of legal regulation, it seems very useful to familiarize yourself with the history of the development of the institution of invalidity of marriage (this phenomenon). This approach makes it possible to fully reveal the principles, trends, approaches in the legislative regulation of the invalidity of marriage, and to use for this purpose methods of system analysis, an integrated approach and comparative law, and other research techniques.

    An analysis of Russian legislation indicates that the problems of marriage invalidity are associated with non-compliance with the conditions and obstacles to its conclusion.

    Let us note that family relations among the Slavic tribes before the adoption of Christianity were regulated by common law. From sources of law, the forms of marriage were known (kidnapping of the bride without her consent, by conspiracy, for ransom). There is no information about the invalidity of the marriage for this period.

    After the adoption of Christianity in Russia, the canonical rules and secular decrees of the Byzantine emperors began to apply (nomocanon, with additions - the Pilot's Book).

    Conditions and prohibitions for marriage were established: mutual consent, age for the groom - 15 years, for the bride - 13 years as a condition for marriage; marriages were prohibited between close relatives, persons who were spiritually related (baptism), between persons, one of whom was married, as an obstacle to marriage; divorce was regulated. There was no talk about the invalidity of the marriage.

    The legal reform of Peter I also concerned the invalidity of marriage. Marriage was a voluntary act; it was forbidden to marry “fools who are not fit for science or service.”

    The following were established: prohibited degrees of kinship (Decree of the Synod of 1744), a ban on marriage with persons convicted of bigamy, as well as conditions for marriage: age, parental consent.

    Issues related to the invalidity of marriage were also regulated.

    So, in accordance with Art. 31 of the Civil Laws, a marriage could be declared invalid if it was committed as a result of violence or insanity of one or both spouses; between persons who are in prohibited degrees of relationship or affinity; if there is another undissolved marriage; with a person over 80 years of age; with a person of the clergy doomed to celibacy; Orthodox with non-Christians.

    The age condition was not a basis for invalidity: if a marriage was concluded with a person who had not reached the marriageable age established by secular legislation (16 and 18 years), but had reached the canonical marriageable age (13 and 15 years), the spouses were separated before the age of marriage.

    Polygamy was the basis for the invalidity of marriage in the spiritual court.

    It should be noted that in the legislation of pre-revolutionary Russia there were no uniform rules for all subjects. Marriage legislation - both secular and canonical - was based on religious rules.

    Thus, we can conclude that the legislation of pre-revolutionary Russia limited the circle of persons who had the right to challenge a marriage, provided for spiritual kinship as grounds for invalidity, distinguished between the grounds of invalidity according to secular and canon law, did not know a clear mechanism of invalidity, and recognized religious marriage .

    There is a different regulation of the institution of invalidity of marriage in post-revolutionary Russia.

    On December 18, 1917, the decree “On civil marriage, children and the maintenance of civil registers” was adopted, which provided for marriage in government bodies; religious marriage did not give rise to legal consequences. At the same time, marriages concluded in the church before the adoption of the decree remained valid. The conditions for marriage concerned age (16 and 18 years) and the consent of the spouses. The following were recognized as barriers to marriage: the presence of mental illness in one of the spouses; the condition of the bride or groom in the prohibited degrees of kinship; the presence of another unresolved marriage. The institution of invalidity of marriage was absent.

    The “Decree on Divorce” adopted on December 19, 1917 also did not concern the invalidity of marriage.

    On October 22, 1918, the Code of Laws “On acts of civil status, marriage, family, and guardianship law” was adopted. It established the procedure for registering marriage - in the registry office, the conditions for marriage (age 16 and 18), obstacles to marriage (the same as in the decree of 1917).

    It should be especially noted that the Code provided for the institution of invalidity of marriage. A distinction is made between divorce, which terminates the marriage for the future, and the recognition of marriage as invalid, which is retroactive and annuls the marriage from the moment of its conclusion.

    The grounds for invalidity are highlighted: marriage with a person under marriageable age; lack of consent to marriage of one of the spouses; marriage between persons, one of whom is in another undissolved marriage; the presence of prohibited degrees of relationship; marriage to an incompetent person.

    A judicial procedure for recognizing a marriage as invalid was provided for. These rules were in effect until 1926.

    In 1926, the Code of Laws “On Marriage, Family and Guardianship” was adopted, which came into force on January 1, 1927. This act gave force to actual marriage. The theory about the withering away of marriage has received legislative registration. A uniform age for marriage was established - 18 years.

    There was no institution for recognizing marriage as invalid.

    Violation of conditions and obstacles to marriage was recognized as grounds for challenging the registration of marriage (Article 116).

    These rules were in force until the adoption of the Code on Marriage and Family of the RSFSR in 1969.

    Now only registered marriages were again recognized; actual marriages had no force. In the Code, Chapter 6 was devoted to the institution of invalidity of marriage. According to Art. 43 grounds for declaring a marriage invalid were violation of conditions (mutual consent, not reaching the age of marriage - 18 years) and obstacles to marriage (the condition of one of the spouses in another undissolved marriage; marriage between relatives in a direct ascending and descending line, between full and half brothers and sisters , between adoptive parents and adopted children, with a person declared incompetent); An innovation was the fictitiousness of marriage, that is, marriage without the intention of starting a family.

    A judicial procedure for recognizing a marriage as invalid was provided for.

    The circle of persons who have the right to challenge the marriage was established; persons are obligatory participants in the process. The consequences of the invalidity of a marriage were also regulated.

    The Family Code of the Russian Federation of 1996 also contains the institution of invalidity of marriage (Chapter 5). The grounds and consequences of the invalidity of marriage have been expanded.

    The invalidity of a marriage means that such a marriage has not become a legal fact of the emergence of a relationship between the persons who entered into it, with the exception of a conscientious spouse and children born in such a marriage, that is, these persons have not acquired mutual rights and obligations from the moment of its conclusion.

    Recognition of a marriage as invalid is possible only in court; administrative procedure is not applicable in such cases.

    Persons who have the right to file a claim in court to declare a marriage invalid are determined according to the rules of Art. 28 of the RF IC, including on grounds of invalidity.

    Thus, if a marriage is concluded with a person under marriageable age, in the absence of permission to lower the marriageable age, such a claim may be brought by:

    • - minor spouse;
    • - his parents (persons replacing them);
    • - prosecutor.

    In case of violation of the principle of voluntariness under the influence of external factors (violence, threat, etc.) or internal factors (due to the inability to understand the meaning of their actions), persons entitled to go to court are:

    • - the spouse whose rights have been violated;
    • - prosecutor.

    If a marriage is contested due to the presence of obstacles to its conclusion, the following are recognized as eligible persons:

    • - a spouse who did not know about the presence of obstacles;
    • - guardian of an incapacitated spouse;
    • - spouse from a previous undissolved marriage;
    • - other persons whose rights are violated by marriage;
    • - guardianship and trusteeship authorities;
    • - prosecutor.

    The fictitiousness of the marriage allows you to initiate a case upon request:

    • - prosecutor;
    • - a spouse who did not know about its fictitiousness.

    Concealing a sexually transmitted disease or HIV infection gives the other spouse, who was not aware of these circumstances, the right to go to court.

    Let's give an example. S. filed a lawsuit against Z. to declare the marriage invalid, citing the fact that at the time of the marriage, an agreement was made between them to register Z. in a residential building for a fee. They both did not want to start a family. After the marriage, Z. began to oppress her. The court refused to accept the statement of claim, citing the fact that S. knew that the marriage was fictitious and did not have the right to go to court.

    The persons participating in the case and their procedural position are also largely determined by the basis of invalidity.

    The claim is brought at the place of residence of the defendant. An obligatory participant in the process will be the guardianship and trusteeship authority if the marriage is concluded with a person under marriageable age, as well as with a person declared incompetent.

    The subject of proof is also determined by the basis of invalidity. Thus, Kh. filed a lawsuit against T. to invalidate the marriage concluded between his father G. and defendant T., citing the fact that his father G. was 45 years older than T., was a disabled person of group I and did not was capable of physical intimacy. T. did not recognize the claim, citing the fact that she fulfilled her marital duties for three years before G.’s death. The court rejected the claim, based on the fact that family law does not provide for such a ground of invalidity as the inability of a spouse to have a physical relationship. A family between G. and T. was created. Mutual rights and obligations between them arose and were fulfilled.

    It should be noted that the court has the right to recognize a marriage as valid if, by the time the case is considered, the circumstances preventing the marriage have ceased, in particular, the spouses have actually created a family. The court has the right to refuse to satisfy the claim, the basis for the invalidity of the marriage for which was failure to reach the marriageable age, if this is required by the interests of the child or if he does not agree to have the marriage declared invalid.

    We especially note that the dissolution of a marriage excludes its subsequent recognition as invalid, with the exception of the presence between the spouses of a prohibited degree of relationship or the status of one of them in another, undissolved marriage.

    For example, between K. and I. the marriage was dissolved in 1995. In 2003, K. filed a lawsuit to declare the marriage invalid, citing the fact that I. was in another, undissolved marriage. The court granted the claim, finding that I., before registering his marriage with K., was in another, undissolved marriage.

    The consequences of the invalidity of a marriage were partially mentioned earlier; let us dwell on the special provisions.

    The norms of the Civil Code of the Russian Federation (Chapters 14, 16), and not the Family Code, apply to property acquired during a marriage that is subsequently declared invalid. The marriage contract is declared invalid.

    The invalidity of a marriage does not affect the rights of children born in such a marriage and within 300 days from the date of its invalidation.

    The court may recognize the right of a conscientious spouse to receive alimony from the other spouse, apply the rules of joint ownership to property, recognize the marriage contract as valid, compensate for moral and material damage, and retain the surname chosen when registering the marriage.

    Thus, I. filed a lawsuit against V.’s ex-husband for moral damages. In support of the claim, she indicated that she had been married to V. for seven years and had two children; in 2002, the marriage was declared invalid due to V.’s condition in another, undissolved marriage. The court upheld the claim because it established that plaintiff I. is a conscientious spouse.

    In another case, M. filed a lawsuit against E. to declare the marriage invalid, motivating her demands by the fact that when entering into marriage, she hoped that they would live together and run a joint household. The defendant promised to take care of her, but the family was not created and the common household was not maintained.

    The court concluded that the claims were satisfied, stating the following: the parties entered into a registered marriage on November 27, 1996, and on January 14, 1997, the plaintiff registered the defendant in her living space, jointly owned with her granddaughter, located in Moscow. The defendant had no intention of creating a family, and marriage is a voluntary union of a man and a woman, aimed at creating a family and giving rise to mutual personal and property rights and obligations for them.

    The court found that after registering the marriage and registration in the apartment, the parties did not create a family, the defendant never lived in the apartment, sometimes came with friends for tea, but left in the evening or at night, they did not maintain a common household. Upon entering into marriage, the defendant promised to look after the plaintiff, buy her the necessary medications, and pay for housing, since she is a disabled person of group I, but did not fulfill his obligations. Neighbors and acquaintances provided her with help with housework. The spouses did not acquire any property for common use.

    The personal relationship characteristic of spouses was not created.

    Taking into account the above evidence, the court rightfully declared the marriage invalid.

    To summarize, we can conclude that, firstly, Russian legislation of both the pre-revolutionary and post-revolutionary periods provided for the institution of invalidity of marriage, which, with the adoption of each subsequent regulatory legal act, developed dynamically, expanded the scope of the grounds and consequences of invalidity, and remained closed. scroll; secondly, the circle of persons who have the right to challenge a marriage has traditionally been limited; thirdly, the difference between the invalidity of marriage and other institutions, including the civil law institution of invalidity of a contract, is noted; fourthly, the judicial procedure for the invalidity of marriage was regulated.

    A marriage is recognized as invalid if the conditions of the marriage are violated, as well as in the case of a fictitious marriage, that is, if the spouses or one of them registered the marriage without the intention of starting a family.

    A marriage is declared invalid by a court.

    The court is obliged, within three days from the date of entry into legal force of the court decision to recognize the marriage as invalid, to send an extract from this court decision to the civil registry office at the place of state registration of the marriage.

    A marriage is declared invalid from the date of its conclusion.

    The following persons have the right to demand recognition of a marriage as invalid:

    The minor spouse, his parents (persons replacing them), the guardianship and trusteeship authority or the prosecutor, if the marriage was concluded with a person under marriageable age, in the absence of permission to enter into marriage before this person reaches marriageable age. After a minor spouse reaches the age of eighteen, only this spouse has the right to demand recognition of the marriage as invalid;

    The spouse whose rights are violated by the marriage, as well as the prosecutor, if the marriage was concluded in the absence of the voluntary consent of one of the spouses to its conclusion: as a result of coercion, deception, delusion or the inability, due to one’s condition, at the time of state registration of the marriage to understand the meaning of one’s actions and lead them;

    A spouse who did not know about the existence of circumstances preventing the conclusion of a marriage, a guardian of a spouse declared incompetent, a spouse from a previous undissolved marriage, other persons whose rights were violated by the conclusion of a marriage performed in violation of the requirements of Article 14 of the RF IC, as well as the guardianship and trusteeship authority and the prosecutor ;

    The prosecutor, as well as the spouse who did not know about the fictitious marriage in the event of a fictitious marriage;

    The spouse whose rights have been violated, in the presence of the circumstances specified in paragraph 3 of Art. 15 IC RF.

    When considering a case on invalidating a marriage concluded with a person under marriageable age, as well as with a person declared incompetent by the court, the guardianship and trusteeship authority is involved in the case.

    The court may recognize a marriage as valid if, by the time the case on declaring the marriage invalid is considered, those circumstances that, by force of law, prevented its conclusion have ceased to exist.

    The court may refuse a claim to invalidate a marriage concluded with a person under marriageable age if the interests of the minor spouse so require, as well as in the absence of his consent to invalidate the marriage.

    The court cannot recognize a marriage as fictitious if the persons who registered such a marriage actually created a family before the court considered the case.

    A marriage cannot be declared invalid after its dissolution, except in cases where there is a degree of relationship prohibited by law between the spouses or the condition of one of the spouses at the time of registration of the marriage in another undissolved marriage.

    Cases on declaring marriage invalid are not uncommon in judicial practice. So, by the court decision dated 12.03. In 2005, the marriage between the Ganisyan spouses was declared invalid under Art. 27 RF IC.

    As it turned out during the trial, A.A. Ganisyan did not want to get married. However, V.Sh. Ginisyan forced her to do this by threatening her with physical harm. V.Sh. Ganisyan justified his position by the fact that, in accordance with his religious traditions, marriage is concluded without the consent of the bride.

    Under the influence of threats, A.A. Ganisyan agreed to the marriage.

    Upon marriage, the Ganisyan spouses entered into a marriage contract, which was certified by a notary.

    Subsequently, A.A. Ganisyan, after consulting with a lawyer, filed a lawsuit to declare the marriage invalid.

    By court decision dated 12.03. 2005 the plaintiff's claims were satisfied.

    A marriage declared invalid by a court does not give rise to the rights and obligations of spouses provided for by the RF IC.

    The provisions of the Civil Code of the Russian Federation on shared ownership apply to property acquired jointly by persons whose marriage is declared invalid. The marriage contract concluded by the spouses is declared invalid.

    The recognition of a marriage as invalid does not affect the rights of children born in such a marriage or within three hundred days from the date of recognition of the marriage as invalid.

    Overview analysis of judicial practice on marriage issues

    An analysis of judicial practice shows that problems for spouses arise not only during the dissolution of a marriage, but also during its conclusion.

    Thus, O. Overtseva and M. Moiseev submitted an application for marriage registration to the Zaeltsovsky department of the registry office of Novosibirsk on October 10, 2005. Marriage registration was scheduled for November 12, 2005. O. Overtseva and M. Moiseev asked to reduce the monthly period, because wanted to register in October, not November. Due to workload, the Zaeltsovsky department of the registry office of Novosibirsk refused to reduce the term. O. Overtseva and M. Moiseev, believing that their rights were violated, went to court to protect their rights.

    The court, guided by the fact that reducing the monthly period for registering a marriage is a right and not an obligation of the registry office, refused to satisfy the plaintiffs’ request.

    The next category of disputes is related to the refusal of state registration of marriage. Thus, the head of the registry office refused state registration of the marriage of A.V. Zinovieva. and Khachaturyan O.Z., because Khachaturyan O.Z. was already in a registered marriage with Khachaturyan Ch.V. Khachaturyan O.Z. adheres to the Muslim faith, which allows polygamy. He considered the refusal to register the marriage to be a violation of his rights.

    Current family legislation does not allow marriage with persons who are already married. On this basis, the refusal to register a marriage is lawful.

    A condition that prevents marriage is that the person is in a registered marriage. The Zaeltsovsky District Court of Novosibirsk considered the case when Selezneva M.S. filed an application to the court with a request to invalidate the marriage concluded between A.S. Istrafilov. and Zemina S.V., because she has been in a civil marriage with A.S. Istrafilov for 2 years and they have a child together.

    In this case, there are no legal grounds for recognizing a marriage as invalid, because the marriage was concluded in compliance with the requirements of the law.

    By the decision of the Zaeltsovsky District Court of Novosibirsk dated September 14. 2004 No. 432, the claim was denied.

    Thus, we can conclude that legal disputes often arise regarding marriage issues. In most cases, they are subject to satisfaction.