Право/9. Гражданское право

Cand.Phil.Sci. O.A.Morozova

Institute of the sphere of services and entrepreneurship (branch) DSTU

The historical stages of the legal development of the marriage contract in Russia

An analysis of the historical and legal specifics of the development of the marriage contract gives the possibility to describe the transformation processes affecting our modern society and effectively predict possible scenarios of its further development.
Today in the modern Russian society is the practice associated with the prevalence of legal regulation of the marriage contract.

Recently, we can only speak about a marriage contract characterizing the family law of foreign states. In addition, it can be noted that the idea of the marriage contract at least alien to the views of our compatriots, ideally, from an ethical position, was considered to be insincere, selfish and vicious. Therefore, a marriage contract, up to a certain time in our country was unacceptable. Today the state does not interfere in the relations of the spouses, but it offers the laws which prevent violations of rights in the family.

History of formation and development of the marriage contract in Russia can be divided into three stages: pre-revolutionary (before 1917), Soviet (from 1917 to the early 90-ies of the XX century) and modern.

The concept of «marriage contract» Russia knew back in the XV century, at that time under the marriage contract was understood civic engagement, i.e. a promise to marry. Studying the life and traditions of the Russian peasantry in the field of marriage and the family were built almost always on the basis of customary (unwritten) law, how succumbing to» the General civil legal regulation. In peasant life a marriage contract (on the letter or, more often, in words, with assaulting) was more used. The subject of its serves is the interests of the contracting parties to the property. Main conditions: on wedding costs about masonry board of the bride; dowry; gifts; finally about advance on a contractual penalty for a breach of contract. Peasant marriage contract (marriage transaction) can be called marriage contract very, very conditional, especially if you compare it with how this legal institution is subject to the same period in Western European countries, or associate it with the marriage contract of modern Russia. The terms of such marriage contracts were merely preliminary marriage character as related organizational and property relations arising in connection with preparation and holding of the marriage ceremony. After committing such a marriage, the marriage contract was losing its power, was not to be changing the regime of marital property and without making any contractual elements in the relations of the spouses. In other words, such a contract is essentially a pre-marriage and premarital agreement.

Despite the fact that in the positive legislation of the period under review included the norms of law governing marriage contract, this legal institution, rather, its beginnings existed in practice, were legal custom of Russian peasantry. This confirms the fact that the terms of this «marriage contract» were based exclusively on a property that is characteristic of modern regulation of marriage contracts in Russia and most of the Western countries. The Russian pre-revolutionary law was not aware of such a legal institution as marriage contract.

As a result of the October social revolution in 1917 in our country was not only a radical transformation of the private law sphere, but also a significant change in the internal systems and structures now Soviet law. Especially noticeably such changes became visible in the family law.

In 1918 was adopted Code of laws on civil status, marriage, family and legal guardian law [1]. This document was not only the first family code in the history of Russia, but in General the first code (in the modern sense of the meaning of this term), adopted for the whole history of the Russian state.
Adopted in 1922 USSR Civil code of laws did not contain any regulations with regard to family and legal status of participants of private law relations. Family law did not envisage the conditions of any contractual elements in regulating property relations between spouses, including such legal institution as marriage contract.
In 1926, the Code of laws on marriage, family and guardianship was adopted. As a result of the adoption of the new Code of family law was significantly reformed: have changed many legal rules, individual legal institutions were built on the opposite models, are not known before, pre-revolutionary, neither the Soviet legislation (for example, legal force received the so-called actual marriages, i.e., marriages are not registered in the civil registry). For the first time in the entire history of Russian legislation was proclaimed the principle of generality marital property. Now the property, acquired by the spouses during the marriage was not the separate property of each of them, and went into the General married «piggy bank»; each spouse is recognized equal to the owner, and could possess, use and dispose of such property on a par with the other spouse. In case of division of property, caused by, for example, the dissolution of marriage, the joint property of the spouses was divided between them in certain (usually equal) shares. The necessity of this measure was substantiated by the fact that the principle of separateness did not give women who had no independent source of income and are engaged in a household, the right to family property. Because all of this equipment was purchased on the income of the husband, it was split (personal) property. Given that the majority of women at that time were in that position, they missed it [2]. Unchanged in the regulation of property rights and responsibilities of spouses was only the absence in the Code of legislative norms, regulating the Institute of the marriage contract. Spouses were not given an opportunity to enter into marriage contracts or somehow differently to regulate mutual relationship.

In 1968, the principles of legislation on marriage and family of the USSR and Union republics were adopted. On their basis each Union Republic has developed and adopted its own codified family law. In 1969 on the territory of the USSR entered into force on marriage and family Code[3] of the USSR (CMF). This document has become the latest act in a codification of family laws of the Soviet state. Moreover, CMF continued to operate on the territory of Russia after the collapse of the USSR before the entry into force in 1996, the current Family code of the Russian Federation. [4]

Despite all the positive trends in family law in the second half of the XX century norms regulating the Institute of the marriage contract and have not appeared.
Code of 1969 established the only possible mode of property - legal (in the form of joint matrimonial property), resulting in property relationship of spouses still were built exclusively on a mandatory basis, and contractual elements in married life, family and there was no place.

The modern level of development of the Russian society, the existence of market relations, and integration in the international community demanded a fundamental change of domestic legislation, including the family. January, 1, 1995, Russia entered into force Part 1 of the RF Civil code, which embodies the best achievements of the pre-revolutionary and partly Soviet civil law, as well as a wealth of foreign and international experience of regulation of private law relations. It contained the first (though indirectly) the mention of the marriage contract, which can be found in the modern Russian legislation. In article 256 of the CC RF devoted to the General property of spouses, says that the property acquired by spouses during the marriage is their joint property, if the contract between them establishes a different mode of this property. From the wording of the said article, the civil code does not call this contract a marriage contract and in no way discloses its legal nature.
The Family code of the Russian Federation adopted in 1995 and entered into force on March, 1, 1996, became the first in the history of national legislation normative document containing the regulation of the legal institution of marriage contract.
The emergence of Institute of a marriage contract in the Russian law is to give the subject of civil-legal sphere big contractual freedom in General construction of many norms of the civil and family legislation on discretionary basis and principle of freedom of contract.

However, the new Family code leaves many unresolved problems and even generates new ones. It is connected with the qualitative change of the level of life of the citizens, the appearance in the composition of their property objects of high value and social significance, the expansion of the circle of objects of the right of matrimonial property on account of a number of non-traditional objects of legal relations, the increase in the share and the role of intangible object of legal relations.

Literature:

1. Code of laws on civil status, marriage, family and опекунском law // SU RSFSR 1918. № 76, 77. Article. 818 (repealed).

2. Antokolskaya M.V. Family law: Textbook. M: Yurist, 1997. C. 71.

3. The marriage and family code of the RSFSR (approved by the government. Supreme Soviet of the RSFSR 30.07.1969) (amended on 07.03.1995, with MEAs. from 29.12.1995) // Bulletin of the Supreme Soviet of the RSFSR, 1969 № 32. Article. 1397. (repealed).

4. Family code of the Russian Federation of 29.12.1995 № 223-FZ of 25.11.2013) // Collection of legislation of the Russian Federation, 01.01.1996. № 1. Article. 16