Brachiolaria relationships are complex relationship of personal property and non-property character, based on kinship ties and regulated by the rules of civil (in the broad sense of the word) right. In many countries there is no family law as an independent branch of law, and family law relations are regulated by civil law (Germany, Switzerland, France). In most modern States separated from family law civil, codified and is an independent branch of law (Russian Federation, Algeria, Eastern Europe and Latin America).
In the regulations of most States do not have a statutory definition of marriage and its legal problems are not resolved, neither in law nor in doctrine. Almost universally accepted that the marriage is legally recognized voluntary Union of men and women, aiming to create a family and presumptive joint cohabitation in the same household. Immediately it should be mentioned that this definition of marriage consistent with the law, not all States. The modern doctrine of law and jurisprudence defines marriage as marriage is a contract, braccatus or marriage is a partnership. The most common is the view that marriage is a contract, a civil legal transaction creating the personal and property rights and obligations of spouses.
Family relations with a foreign element are part of the international civil relations. The foreign element in brachiocephalic relationship can manifest itself in all its variants. The laws of some States stand out “foreign” (foreigners) and “mixed” (between foreigners and their own citizens) marriages. Family relationships to the maximum extent connected with national traditions, religion, household, and ethnic traditions, but because family law in different countries is fundamentally different and is virtually impossible unification. All this raises serious conflict-of-laws pacesetting law.
The main conflict of legal problems marriage and the family are as follows:
form and conditions of the marriage;
racial and religious restrictions;
prohibitions on marriages with foreigners;
the need for permission (diplomatic, parents or guardians) for marriage;
personal law (supremacy) husband; li>the marriage by proxy and through the representative.
polygamy and monogamy;
legally responsible for refusal of entry into the promised marriage;
“limping marriages”, etc.
The doctrine of law through comparative analysis has identified the most common connecting factors to establish the applicable law:
the law of the place of marriage;
personal law of both spouses;
the law of the country of residence of the child;
personal law of the adopter;
the law competence of the institution;
the law court;
the joint law of the country of residence of the spouses;
the law of the last common place of residence;
personal law of the child;
the law of the location of the common family property.
Attempts at unification brachiocephalic relations with a foreign element are taken from the beginning of XX century On the universal level developed the whole complex of the Hague conventions on family law: resolving conflicts of laws and jurisdiction in the area of divorce and legal separations, 1902; on the law applicable to maintenance obligations, 1972; on cooperation in the field of intercountry adoption of 1993; resolving conflicts of laws in the field of marriage 1995, etc. (only about 50). These conventions contain mostly uniform conflict of laws rules. The main drawback of the Hague conventions – limited number of participants. Many of them did not take effect since it did not get the required number of ratifications.
In the UK produced a codification of legal norms relating to braceletand relations involving foreigners and stateless persons (sec. VII). To such relations may use both Russian and foreign law. In the case of a decision conflict-of-laws issue in favor of foreign law defines the procedure of establishing the content of foreign family law (article 166 of the family code ). It is the duty of the court and other competent authorities of the Russian Federation. The content of foreign family law set with its official interpretation, practice of application and the doctrine in the foreign country. The IC contains the ordre public (article 167), according to which the norms of foreign family law do not apply if their application is contrary to the principles of public order (ordre public) of the Russian Federation. In such cases, the provisions of Russian law.
10.2. The marriage of
The order of marriage and its basic shape from the point of view of occurrence of legal consequences in different countries are determined by fundamentally different ways: only the civil form of marriage (Russian Federation, Switzerland, France, Germany, Japan); only religious (Israel, Iraq, Iran, individual U.S. States and provinces of Canada; alternative or the other (UK, Spain, Denmark, Italy); at the same time, both civil and religious (in Latin America, the Middle East and Southeast Asia). Certain civil consequences and generates illegitimate, living in the same household. In some U.S. States simple cohabitation after a certain period of living together allows the court to establish a precedent, the presumption of a legal marriage.
The conditions of marriage in national laws also fundamentally different, but it is possible to allocate a number of common features: the attaining the statutory age of marriage; responsible for the concealment of circumstances hindering marriage; prohibition of marriages between close relatives, adoptive parents and adoptees, guardians and wards; the prohibition of marriage with incapable or completely incapacitated persons; the need for explicit consent of the bride and groom.
In the legislation of almost all countries there is a special form of marriage – consular marriages. Such marriages are made in consulates or consular sections of embassies between the citizens of the state of accreditation, located on the territory of this foreign state. Consular marriages are based on consular conventions; such marriages is governed by the law of the state of accreditation. In some consular conventions require to teach you to build and right of the receiving state (Sul Con with Kai con ven tion between the Russian Federation and the USA).
The most acute problem brachiocephalic relations with a foreign element – a large number of “limping” marriages, i.e. marriages are given legal effect within the state and considered to be invalid in another. This problem is generated by the fact that many countries do not recognize the form and manner of Contracting marriage, if they differ from their national regulations. For example, in Israel mixed marriages performed abroad are recognized only if there was a wedding in the synagogue. Limping marriages constitute a serious destabilizing phenomenon in international life, give rise to legal uncertainty and entail negative consequences. Not so long ago an attempt was made to rectify these shortcomings through the Hague Convention on the settlement of conflicts of laws in the field of marriage 1995, However, this Convention is in force not yet, as it has a limited number of participants and States that did not recognize prisoners abroad marriages, the Convention joined in.
The General conflict-of-laws bindings for resolving the issue of marriage are the personal law of both spouses (subject to internal conditions of marriage) and the law of the place of conclusion of marriage (determines the form and order of marriage). These bindings are provided both in national legislation and the Hague Convention on the settlement of conflicts of laws in the field of marriage.