The Public Order Reservation to Application of Foreign Family Law

Abstract

The effect of the norms of foreign family law is closely connected with the problem of restrictions relating to the action in Russia foreign law chosen by the parties or by the court and to be applied to family relations. Private International Law knows several methods that limit the effect of foreign family law. One of them is a public policy exception, which is enshrined in Art.167 of the Family Code. It generally meets modern standards of Private International Law. At the same time, its application in practice does not give a positive effect. The purpose of the study: ensuring the correct and uniform application of the rules of Private International Law by courts in resolving family law disputes, protection from undesirable consequences that the application of foreign family law may have to a specific legal relationship. Achieving this goal is carried out by solving the following tasks: to determine public policy and its elements for the needs of Family Law regulation, to assess the role of the public order exception to application of foreign family law from the point of view of doctrine and law enforcement. Basic research methods are: formal legal analysis, comparative method. It is substantiated that in Private International Family Law public order did not receive a generalized description, the author analyzes possible reasons for not applying this rule, draws attention to the shortcomings of the current wording of Art. 167 of the Family Code, makes proposals for improving the current legislation, gives recommendations to courts resolving cross-border family disputes. It is noted that the domestic doctrine and practice determine the elements of public order of the Russian Federation differently, the author draws attention to the negative trends in judicial practice. The author comes to the conclusion that the provision of domestic practices of the application of a public order clause should strive to achieve legal certainty, to exclude an unjustified refusal in the application of foreign law, to ensure the exercise of fundamental human rights. The author concludes that the public order of the Russian Federation must not correspond to a group of rules to be applied when resolving family law disputes complicated by a foreign element. The foundations of public order in the family law are the principles of family law enshrined in the Constitution and fundamental human rights.