Legal Consequences of Marital Relationship Actual Termination for the Property Relationships of Spouses
Abstract
The specific of the regime of spouses property relations who have actually terminated marital relations is recognized and embodied in the legal norms of many European legal orders. In the Russian Family Code there is no concept of “actual termination of the marital relations”; the legal significance of the relevant fact for the property relations of spouses remains outside the scope of lawmaking attention. However, in juridical practice, this circumstance has a number of significant legal consequences that have not yet received generalization and understanding in the legal doctrine. The main goal of this study is, based on the analysis of judicial practice, to establish the real significance of the actual breakdown of the family for the property relations of the spouses, to identify its legal consequences through the systematization of the most frequently stated requirements and formulated law positions, and to assess these consequences in terms of their need for legislative systematization. It has been established that in the current jurisprudence the idea of “actual termination of marriage” as a full-fledged fact-state, entailing a number of legal consequences, united by the general principle is formed: in the opinion of the courts, with respect to the property relations of such persons, this fact has a meaning equivalent to that of the fact of termination of the marriage. The legal consequences of the actual termination of marital relations are systematized and divided into two groups (expressed in the shift in the boundaries of the legal regime of marital property in time; in the transition from the presumption of joint use of income received from the sale or use of common property to the presumption of their distribution). It has been proved the expediency of law-making interpretation of the results of discretionary creativity of the courts for their compliance with social expectations and moral and ethical ideas of society, as well as the position and logic of the legislator, both in terms of recognizing the actual termination of marital relations of legal significance in principle, and in terms of linking to this fact to legal consequences.
References
Gordeyuk E.V. (2016) Objects of legal relations of spouses living separately. Vestnik ekonomicheskoi bezopasnosti=Bulletin of Economic Security, no. 4, pp. 137-141 (in Russ.)
Gromozdina M.V. (2017) Legal aspects of the division of common property of spouses in court. Yuridicheskie issledovaniya=Legal Studies, no. 9, pp. 14-23 (in Russ.)
Izmailov V.V. (2020) Protection of the rights of spouses dissolving a marriage: legal nature, forms and means. Candidate of Juridical Sciences Thesis. Moscow, 250 p. (in Russ.) DOI: https://doi.org/10.31085/9785392336739-2021-200
Malakhova M.N. (2015) Inheritance by a surviving spouse: legal regulation. In: Issues of jurisprudence in modern Russia: a collection of articles. N.V. Ivantsova, N.M. Shvetsov (eds.). Yoshkar-Ola: Interregional Open Social Institute, pp. 283-289 (in Russ.)
Militsina E.S. (2022) Features of the distribution of the burden of proof in disputes on the division of property of spouses. Evraziiskii yuridicheskii zhurnal=Eurasian Law Journal, no. 1, pp. 202-203 (in Russ.)
Plekhanova O.I. (2013) Inheritance by the surviving spouse upon the actual termination of marital relations. Glagol”pravosudiya=Verb of Justice, no. 1, pp. 135-137 (in Russ.)
Rabets A.M. (2016) The presumption of the community of property of spouses acquired in marriage, the limits of action and trends in law enforcement. Vestnik Omskogo gosudarstvennogo universiteta. Seriya Pravo=Bulletin of Omsk State University. Series: Law, no. 3, pp. 85-90 (in Russ.)
Rabets A.M., Bakaeva M.K. (2016) The effect of the law-forming function of marriage in regime of property of spouses in Russia and in neighboring countries. Vestnik Omskogo gosudarstvennogo universiteta. Seriya: Pravo=Bulletin of the Omsk State University. Series: Law, no. 1, pp. 121-126 (in Russ.)
Slepko G.E., Strazhevich Y.N. (2017) The emergence of a regime of common property for spouses, one of whom is a military man. Pravo v vooruzhennykh silakh=Law in the Armed Forces, no. 4, pp. 111-115 (in Russ.)
Svetlichnyi A.D. (2016) The subject of proof and evidence in cases of invalidating a transaction on the disposal of the common property of the spouses (example of vehicles). Notarius=Notary, no. 7, pp. 24-27 (in Russ.)
Tarusina N.N. (2009) Family law: Essays on classics and modernity. Yaroslavl: University, 615 p. (in Russ.)
Tarusina N.N. (2019) Judicial practice in family matters: problems of discretion on the verge of lawmaking. Lex Russica, no. 5, pp. 40-48 (in Russ.) DOI: https://doi.org/10.17803/1729-5920.2019.150.5.040-048
Ul'bashev A. Kh. (2018) Marriage in the system of legal facts of family law. Vestnik Rossiiskoi pravovoi akademii=Bulletin of the Russian Law Academy, no. 3, pp. 37-44 (in Russ.)
Yakushev P.A. (2019) Cohabitation of men and women: institutionalization in the context of traditional values. Gosudarstvo i pravo=State and Law, no. 12, pp. 104-112 (in Russ.) DOI: https://doi.org/10.31857/S013207690007823-7
Zapisnaya T.V., Zagadaeva S.N. (2019) Division of property after the actual termination of family relations. In: Russian state and law. History and modernity: collection of papers. V.V. Nizovtsev, N.M. Rebrova (eds.). Novocherkassk: Southern Russian State Polytechnic Platov University, pp. 121-125 (in Russ.)
Copyright (c) 2022 Law Journal of the Higher School of Economics
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
