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 ofrestrictions relating to the action in Russia foreign law chosen by the parties or by thecourt and to be applied to family relations. Private International Law knows severalmethods 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 standardsof Private International Law. At the same time, its application in practice does not give apositive effect. The purpose of the study: ensuring the correct and uniform application ofthe rules of Private International Law by courts in resolving family law disputes, protectionfrom undesirable consequences that the application of foreign family law may have to aspecific 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, toassess the role of the public order exception to application of foreign family law fromthe point of view of doctrine and law enforcement. Basic research methods are: formallegal analysis, comparative method. It is substantiated that in Private InternationalFamily Law public order did not receive a generalized description, the author analyzespossible reasons for not applying this rule, draws attention to the shortcomings of thecurrent wording of Art. 167 of the Family Code, makes proposals for improving the currentlegislation, gives recommendations to courts resolving cross-border family disputes. Itis noted that the domestic doctrine and practice determine the elements of public orderof 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 domesticpractices 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 exerciseof fundamental human rights. The author concludes that the public order of the RussianFederation must not correspond to a group of rules to be applied when resolving familylaw disputes complicated by a foreign element. The foundations of public order in thefamily law are the principles of family law enshrined in the Constitution and fundamental human rights.
For citation: Voitovich E.P. (2020) The Public Order Reservation to Applying Foreign Family Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 26–43 (in Russian) DOI: 10.17323/2072-8166.2020.3.26.43