Первый отдел. Семейные отношения

Chapter one. General concepts § 1. General properties of family relationships. – Their social character. – In what ways they are subject to the legal definition. – The property of family power and its difference from possession. – Wealth issues and claims related to family law. – Restoration of family power. – Government interference in family relationships. – Family relationships The word family reminds, firstly, of the union by which spouses are united, both among themselves and with their children. Secondly, about the relationship in which the head of the house has to all members of the house and family who are subordinate to him. Finally, thirdly, it indicates a whole circle of people connected by a connection of common origin. All these unions enter into one another, and the mutual relations of the members of each circle among themselves, as far as can be legally determined, constitute the subject of family law. The family comes from the union of a man and a woman. There are two sides to this connection – physical and spiritual. Beginning with an unconscious action, this connection is gradually imbued with consciousness, like any human relationship. The union of the sexes and birth are phenomena common in human nature with the nature of animals. In physical nature, this phenomenon has the meaning of a simple fact, which expresses one goal - maintaining the breed, reproducing the unit from itself. At this level, the concept of family is not yet associated with the union of the sexes. At this level, the connection between parents and children is instinctive, and lasts only until the children become capable of independent existence. Beyond this line, any concept of union disappears. But man is not limited, like animals, to one factual relationship. In human nature there is a desire to affirm a fact, to assign it constancy, strength, duration, and to elevate it into a permanent relationship. Man, as a rational being, strives to generalize phenomena. As a result, the concept of a marital union is affirmed as a permanent cohabitation of a man and a woman, a union of parents and children that lasts a lifetime, a family union, a clan. This is how a blood union is formed. At first, it constitutes the only form of community life, supported by its internal strength. But society cannot stop at this form; in a blood union there is not enough constancy, strong firmness, and, as the family multiplies, its unity is broken, the connection weakens and is forgotten. Instead of blood relations, civil and state relations gradually arise. Blood and family relationships are not destroyed through this, because they are rooted in human nature, but, being constrained in the circle of their action, they acquire all the more reasonable significance in the sphere to which they exclusively belong. Here we only have to talk about the civil significance of clan and family, in private civil relations. Property of family relationships. These relationships are essentially personal and therefore incommunicable. They constitute the main element of social and state relations, and retain this property forever. Like social and state relations, family relations embrace the whole person, and not just one aspect of his life. This is a complete relationship. At the same time, they are permanent and indefinite. Although these are relations between individual individuals, they retain a social character forever. In other legal civil relations, we see the relationship of a person to a thing, or the relationship to a person regarding a thing - property, property. Here, the relationship between persons is not limited to the concept of property or property, but personality refers to the individual in its entirety. There, the relationship of person to person stems from personal will, which serves as the source and engine of the relationship. Here relationships arise independently of personal will, but one person gravitates towards another due to a necessary natural connection, and moreover, in such a way that the possibility of unconditional disposal of one person by another is excluded. In the development of blood union and blood relations we see a gradual agreement of natural physical elements with the reasonable needs of human nature. Blood relations are gradually penetrated by civil elements, limited, defined. But it should be noted that these relations are incomparably less amenable and subject to legal definitions than all others: precisely because of their integrity, precisely because they contain many elements that a legal definition cannot and should not embrace, just as it cannot descend into the depths of conscience and moral feeling. A positive law can concern only one side of these relations, namely the side from which clashes between family autonomy and state autonomy are possible. Firstly, the state can intervene in these relations to protect the individual when it is suppressed by the family principle (for example, it remains to be determined to what extent the power of parents and fathers of the family extends over the actions of subordinate members); secondly, the state can determine the forms and conditions under which, in general, a union of persons among themselves has the right to be called family - the forms in which relationships are formed; otherwise there would be no order and firmness of family ties. Thirdly, finally, all those property relations that arise between individuals as a result of their blood connection are subject to definition by law. In a close sense, a family consists of several persons interconnected by the unity of a household bond; it constitutes a single household. This does not necessarily mean that all such persons have one, common place of residence and one household; but they all stand among themselves in a mutual relationship of power, patronage or protection, subordination and loyalty. One person in this union has power; power is of a special nature, for it stems not from private will, which receives the force of law, but from a natural, natural relationship. In other respects, power is an independent right to demand, in one’s own interest, certain, predetermined actions; here, leadership and protective power appears not for its own sake and not in its own interest, but as an accessory and natural consequence of such a relationship in which protection and guidance are required - for those under power. The head of the family or home seems to be the natural manager and leader for the rest of the family members, and this is where his power lies. This power at different times and among different peoples was more or less definite and sharp, but at any time and under any circumstances it has the natural meaning of power. However, the power of the owner in the house must be distinguished from the power belonging to the head of the family; only the latter is included in the scope of family law; and the first belongs to legal relations of a different nature (for example, the relationship of the owner to the servant) 1. Family relations cannot but be classified as legal relations, although this property belongs to them and not in all the fullness that we see in other relations of civil law. A person who voluntarily or involuntarily enters into family relations enters into a certain state, which is essentially unconditional, i.e. has force and requires recognition not only between persons in a relationship, but also before all third parties, moreover, this state, once established, cannot end by the will of the persons in it alone. The belonging of a person to one or another state or to a relationship of this kind is, in essence, not a right, but a property of the person; however, it has legal significance, because with this accessory, as soon as it is beyond doubt, are connected the legal consequences that constitute the truly civil right of a person. So, for example, since I am a father, husband, son, etc., I undoubtedly own the civil rights associated with these qualities (for example, inheritance, the right to maintenance, etc.), and recognition of these rights requires recognition of the state from which they arise. Hence, in case of uncertainty or dispute, special claims regarding the condition arise; since these claims are intended to prove the necessary assumption of the state, without which the right associated with them would not have a beginning and foundation, then they are called preliminary (actio praejudicialis, praejudicium, Praejudicialklagen); The peculiarity of these claims is that the decision on them has unconditional force, i.e. not only between the parties, but also regarding all third parties who did not participate in the case. Rights associated with family relations are most clearly expressed in confrontations with strangers. The law recognizes the power of the head of the family, unconditionally protects this power from third-party claims, and restores, in the event of opposition, those under power. If this power is contested in its basis, it requires preliminary certification and recognition (praejudicium). If it is undoubted, then it is restored in relation to third parties not by means of a lawsuit, but by the direct application of the law, by the force of the government (among the Romans this was not served by actio, but by interdictum, for example, de liberis exhibendis, de uxore exhibenda). Regarding the subordinate members of the family, the head of the family restores his power by right, autocratically, and only in case of inadequacy or failure of his measures, resorts to the direct assistance of the government. Within a family, the mutual relations of members appear to be essentially natural, moral, but not legal relations. They contain both rights and obligations, but both of them - not in legal, but in moral consciousness, not in calculation by number and measure, but in expectation and confidence; both are hidden under the cover of family life. Only in this case, when the abuse of power or the forgetting of duties reaches the complete denial of the basic principles of family life, i.e. protection and patronage when an individual in the midst of a family is in danger - only in this case does government authority enter into family relations in the name of the law and determine by number and measure rights and obligations that essentially do not require definition; eg awards the father to feed, support and raise the children, the husband to provide the wife with means of maintenance, etc. Kinship relations do not have the same legal meaning that belongs to the mutual relations of members in a close family circle. There was a time when clans lived an integral life under the authority of the ancestor; but this time has passed in civil society, and now among the clan there is no longer a necessary person who would rightfully belong to power with the responsibility of protection and patronage. Blood relations in a related union are recognized by law as a natural phenomenon arising from blood ties, but they do not in themselves produce permanent civil rights and obligations either between members of the clan or relative to third parties. However, while not being legal, family relations have legal significance. It consists in the fact that relatives descend by blood from the same ancestor and are in a mutual blood relationship, which constitutes an important positive or negative condition for many legal relationships. Blood ties serve as an obstacle to marriage between certain persons, destroy or limit the reliability of testimony, give the right to legal inheritance, impose guardianship obligations, etc. In relation to family relations, the new code of civil law for Montenegro, compiled by prof. Bogišić and put into operation in 1888. He attracted the attention of enlightened lawyers around the world as a new, remarkable phenomenon in the field of legislation. The compiler prepared for his work by carefully studying the customary law of the Slavic peoples, and especially between the Serbs and Montenegrins, and applied the system and content of the code to the needs of the country in its economic and moral life, without being carried away either by the usual methods of Roman and German systematization of legal rules, or by that false direction of codification in which the so-called law of lawyers dominates over popular views on legal and illegal. Moreover, the distinctive features of the new code include: firstly, the careful development of the language in which the code was written, and technical terms, which in other cases had to be created again; secondly, the addition to the code of general legal provisions to explain essential concepts about the relations of civil law. The Code consists of the following 6 parts: 1) general provisions; 2) property and other real rights; 3) purchase and sale and other important contracts; 4) general provisions on contracts and other binding relationships; 5) about people and other subjects of law. The contents of this part are as follows: adulthood and minority; guardianship of different types; legal capacity and unknown absence; family community, tribe, brotherhood, rural community; churches and ecclesiastical institutions of the state; corporation and institutions. Finally, the 6th part contains explanations, additions and definitions of concepts. The legislator wisely limited his task to one property right. He recognizes it as untimely and dangerous to codify family relations for Montenegro, as well as inheritance law, which is inextricably linked with family life and custom. The new law concerns family relations only in relation to third parties towards the family and its individual members. For a closer acquaintance with the new code, you can point to the following works. The author himself: Bogisic. A propos du code civil du Montenegro, quelques mots sur les principes et la mèthode, adoptés pour la codification. Lettre à un ami. Paris, 1888. His same: De la forme dite Inocosna de la famille rurale. Paris, 1884 – Article on the code in the Legal Journal of 1888. – Detailed presentation in the book: Ueber das neue bürgerliche Gesetzbuch für Montenegro, von Karl Dickel. Marburg, 1889 § 2. Historical significance of the family. – Family in the Ancient World and the power of the boss. – The civil family in Rome – agnates, cognates and clan. – Initially the religious character of the family and the subsequent modification of its character. – The property of a German blood family. – Slavic family. – Contents of family law Historical significance of the family. In the spiritual nature of a person there is a fundamental property of attracting objects of the external world to his personality, as soon as they touch the circle of his personal will, and enclosing them in this circle. This property, which constitutes the grain of any possession, was expressed in the sphere of family relations. In the Roman world, where they first developed into a legal norm, we see that the family forms a vicious circle, the center of which is the head of the paterfamilias, with all the attributes of proprietary rights. The family is an organic body, the soul of which is the head of the family. Just as in the body the members and organs constitute the instruments through which the soul acts externally, so in the Roman family the members are the instruments of the legal will of their head. Only he has true independent will and true independent right; members of the family have dependent will, dependent right, right and will only to the extent that both flow from the will and right of the sovereign head. The relationship of this chapter to members of the family is analogous to the right of ownership of all objects within its legal sphere. Neither his wife nor his children have an independent legal personality. The expression in manu directly indicates the owner’s attitude towards the object of ownership. The father of the family dies: with his death, the family union is destroyed, both practically and legally. The remaining descendants do not continue the union, do not take over the person of the deceased in the family, but found a new one, so that the son of the deceased, not out of duty, not as a guardian, manages the personalities of the widow and daughters of the girls, but subordinates them to his will, autocratically takes possession of them. The Roman world does not know the clan in the sense in which the new peoples know it, as an organic blood union of all ascending, descending and lateral relatives. The structure of the family in Ancient Rome had the peculiarity that it was based not so much on blood ties, but on the importance of parental authority and the related tribal religious idea. The family consisted of a head and members existing under his authority; there could be a family without members: in this case, it consisted of one person who did not have family power over him, nor subordinate members under him, but still bore the name of the householder (paterfamilias, caput familiae). On the other hand, the family could consist not only of persons who were actually under power: it also included such persons who would have been under the power of the common ancestor (no longer existing) if he had remained alive. Therefore, agnacy generally existed between persons who could reduce each other exclusively through the male generation to one common root of parental power. From here a union of civil kinship arose in the family (agnatio, cognatio legitima, cogn. civilis). Such a family did not fully correspond to a blood family arising from natural birth, because according to the idea of ​​civil kinship, the mother’s blood relatives did not belong to it, since parental authority was recognized in the person of one man and was transmitted only through a man; on the other hand, belonging to a civil relationship depended on events and actions of a purely civil nature, such as adoption, emancipation and certain strict forms of marriage. Outside the civil family of the agnates, we see in Rome another vast circle, intermediate, so to speak, between the family and the state - the clan circle, the so-called qens, whose members were united by a common religious rite, common traditions, a common family name, a common moral attitude and a common inheritance law. In each of the smaller circles of civil kinship, an unconditional unity of power reigned: there was one person and one property. All members of the family worked for their head, obliged and acquired for him - continuously from generation to generation, until the chain of power was broken by death, emancipation, etc. When a family member married and raised his children, he acquired parental authority over his children not for himself, but for the head of the family. In a word, the family was, as it were, the property of its head, and the word familia itself, in its original meaning, means property or belonging to a person. In this form, the family, at its origin, was a state institution, a form of political and religious life, and the title of head was necessary to protect the strict principles of religious and civil order (see the excellent study of Fustél de Coulanges on this, in the book: La cité antique). All the ancient legislations of Europe express the desire to isolate the family by strictly defining its boundaries and to maintain the integrity and continuity of the home, as a sanctuary of family religion, combined with the cult of deceased ancestors. From here follow the institutions of that time, imbued with family principles - blood feud, exclusion of women from inheritance and the right of adoption. With the change in the civil order and social economy of Rome, the parental authority outlived the principles on which it was founded, and was subject to decay, as these principles began to fall into oblivion and personal right began to be separated from the body of rights and duties connected with the original idea of ​​​​the institution. In this form, i.e. as a personal, self-existent right, parental authority could not be maintained in all its severity, and the civil family little by little had to give way in the law to the natural or blood family, which had existed from time immemorial and was hidden in the depths of the civil family. At the same time, the legal meaning of the head of the family has also changed completely. Threefold power was concentrated in his person: power over property, power over persons, power of court and reprisals. The disintegration of this power began with the fact that a member of the family was given the legal opportunity to have his own separate property (peculium), and then, due to the gradual multiplication of separate rights, the exclusive right of the father to the property of family members weakened to the point that the father was allowed to participate in the inheritance after his son. Inheritance rights at first belonged exclusively to agnates, members of the civil family: little by little, by the time of Justinian, they became the property of members of the blood family or cognates. Finally it came to the point that the most essential accessory of parental power - the testamentary right - was subject to restrictions, and the parent, to whom at first the interests of family members were unconditionally assigned, became bound by their interests in the disposal of his property, in support of which the rule on the legal inheritance of the closest relatives was established. The family of the new world, the Germanic one, appears with different properties; its meaning is based on blood relationship, and therefore its scope is not determined, as in Roman law, by a strict, narrow, uniform measure. If the Roman family is like a field plant, completing its existence at a certain period and reproducing through seed, then the German family is like a tree, strengthened by roots in the ground, living from year to year and putting out new buds, new shoots and branches by the power of internal juices. It has no measure or duration, because blood is passed on from generation to generation; he has a head, but with his death only the personality of the head changes, the headship is passed from person to person successively, and the family does not cease to be the same organic whole. The head of the family has power over its members, but this power is based not on the concept of ownership, but on the concept of protection and patronage; Associated with it is the concept of duty and care. Family members are not dead instruments of the head, but members of the common body; their personality does not disappear in the personality of the head, but consists of subordination to it; their will is not destroyed, but is supplemented by the will of the head; by acquiring, they are not deprived of any right to what they have acquired; what is acquired goes only to the management or use of the head until adulthood or marriage. The land that the head owns and disposes of, while being considered his land, is at the same time considered the property of the clan (a concept completely unknown to the Roman world), just as land in further branches of the clan is considered the property of a brand, tribe, community. The closeness of kinship is calculated in generations or degrees; the inheritance is divided not equally according to degrees, but along lines, in uneven parts. This is the type of the German family, distorted, however, by mixing with the features of first feudal, then Roman law. The Slavic family is distinguished by the complete absence of a strict legal principle. Here we do not even encounter the German concept of mundium or guardianship of a husband over his wife, or a father over his children. The head of the family has power, as the senior member of an organic whole, and this power of the head is a living property of organic being, and not a harsh right and not a legally defined obligation. Movable property and household goods are considered common property, and everything acquired by members comes to the disposal of the head as common property. Coming of age does not yet separate one from this communication, does not yet assign a person personal independence, does not yet make him a separate unit: for this he needs to separate, become a special head of the family, or his daughter needs to move to another family. The head dies, but his leadership is not inherited, and the family either continues to live a common life, and the widow of the deceased can take his place, or breaks up into new separate families. This is the type of Slavic family that still exists today in our landowning classes; but he is already beginning to experience himself, his patriarchal principles are no longer able to resist the beginning of the personality, everywhere declaring his demands, his desire to free himself from the environment of family communication, which is already becoming cramped for him. The most characteristic type of family in our time is the Chinese family. It is not limited, as it is with us, to parents, children, and collateral relatives, but embraces all ancestors, stretching over centuries, embracing the past, present and future by the unity of family tradition and family history, with which the chronicle is stored and continues in each family. The material basis is the family plot of land, inalienable, indivisible and not subject to sale (with rare exceptions) - the property of this property is sacred. In this form, the Chinese family appears to be an integral organism and the main unit of the entire state structure and has rights - civil, political and even judicial, for it has the right to exclude unworthy members from its midst, excommunicating them from the hearth, from family traditions and from the family cult dedicated to the memory of ancestors; has the right to subject the guilty to severe punishments (except for the death penalty). Without breaking up, such a family, however, distinguishes from itself individual members - the founders of new families, connected to a common nest by common traditions. In relation to inheritance, it is possible, according to Le Play's observation, to divide families into three completely different and very characteristic types: patriarchal, unstable and indigenous families (f. patriarchale, f. instable et famille souche). The first type, i.e. the patriarchal family, Le Play found among the pastoral tribes in the East, among the Russian peasants and among the Slavs of central Europe. All children, not excluding those who are married, remain with the father, who has very extensive power over them and his grandchildren. All property, with the exception of some movable property, remains undivided, and the father disposes of it and manages the work. Upon his death, this right passes to one of his sons whom he himself appointed as his heir. Although this custom has inconveniences corresponding to the inconveniences of the communal principle, it at least represents the enormous advantage that it allows less capable members to still enjoy some share of prosperity and have a secure piece of bread. In addition, it is quite suitable for the situation of families living in almost desert areas and under a very primitive form of government and forced, in order to avoid danger, to stay around the hearth and not leave the authority of parental authority. The unstable family is predominantly found in the West, and especially in France, among populations disorganized over the last three quarters of a century due to the forced division of property. With this order, all children, from the day of marriage or upon receiving the opportunity to exist on their own, leave their home and settle down on their own, leaving their elderly parents alone. All children have, so to speak, their own dowry, i.e. their share of the property, and enjoy the fruits of their labors, being free from all obligations regarding the family; upon the death of the parents, all property is divided equally between the children, and the father does not have the right to independently intervene in the matter through his will. The result of this procedure is a series of periodic liquidations of the parental home. This order fatally leads to a decrease in the population, because spouses avoid it for fear of having many children. So, this order always serves in society as a sign of disorder or a desire for disorder. The third type, to which Le Play gives the expressive name of the indigenous family (f. souche), is found among the freest and most prosperous peoples, those who have enough common sense to protect their private lives from the domination of formal legalists and bureaucracies, namely, in the United States, in England, Germany, in the Scandinavian states and in most of Europe. In families of this type, the father accepts one of the married children as his employee, with the obligation to live permanently in the parental home and continue his father's profession. Such a custom maintains professional traditions, as well as preserving the means of livelihood and the treasures of useful instructions bequeathed by the ancestors. At the same time, it creates a permanent protective center to which all family members can resort in difficult moments of life. While in unstable families the death of the father is a cause of disintegration, in native families it is only a hard test for the hearts of the children and does not entail harmful consequences in relation to the well-being of the family. Children who have not reached the age of majority, who still need help and protection, are not abandoned, and thanks to the steadfastness of the home and the meaning of legends, they find from the new head of the family the support that they enjoyed during the life of their father. And all the other children also do not suffer at all for the sake of the interests of the heir to the hearth and profession, since this latter pays them at the time of their establishment a certain share, proportional to the size of the property and determined by the father. Comparing all these family types, Le Ple came to the conclusion that if the patriarchal family is more characteristic of nomadic pastoral peoples and populations living under the existence of a communal order in sparsely populated areas, then the indigenous family is the institution that most provides daily bread and well-being for settled peoples engaged in agriculture, trade or industry. – As for an unstable family, it is a painful phenomenon and contains obvious signs of social decay. Contents of family law The family arises from the union of husband and wife. Hence the law of marriage and the relations connected with it between spouses. Children are born from marriage. Hence the law of relations between children and parents. The need to have children, which by nature is not satisfied, finds satisfaction in adoption. Hence the law of adoption and the relationships arising from it. The need of children for care and education, which by nature is unsatisfied when there are no parents present, finds satisfaction in guardianship. Hence the law of guardianship and the relationships arising from it. From the branching of the family comes the clan. Hence the law of blood relations between relatives, members of the clan. Chapter two. Marriage union § 3. The essence and idea of marriage. - Its moral meaning. - Sacrament in marriage. – Historical development of the idea of ​​marriage. - Polygamy, polyandry and monogamy. – The idea, family, social and religious significance of marriage in the Ancient World. – Religious rite of marriage among the ancients. – Strict form of marriage. – Consecration of marriage in Christianity. – Church concept of marriage in the West and East. – Secularization of marriage and its subordination to civil law and court after the Reformation and Revolution. – Marriage law and court in Russia Marriage in the legal sense is the union of a man and a woman, sanctified by public consciousness, i.e. received legal character. But it is not enough to look at marriage from the legal side alone: ​​that would be a one-sided view. Marriage, without a doubt, is concluded by contract: it initiates a contractual, obligatory relationship in which both wife and husband mutually assume responsibilities; the marriage union produces relations in terms of property; but all these relations occupy a secondary place. The essence of marriage is in the conditions of the physical and mental nature of a person, and not just a legal union of two wills. The union of two wills requires agreement and transaction; but this idea of ​​the contract does not exhaust the content of the marriage union. The motivation for it and its goal is the fulfillment of the fundamental law of nature, by virtue of which the living and integral personality of a person strives to complement itself, seeks for itself complement and improvement in the same personality of the other sex. What this addition is and what it consists of is not the same concept at different degrees of social development. At the lowest level, it is the satisfaction of the crude instinct of animal nature; at the highest level, it is the satisfaction of the need, in accordance with the rational nature of man, for communication of all organic, internal and external forces given to man for development, work and pleasure in life. Therefore, it is wrong to seek out and set a special goal for marriage, such as, for example, childbearing, for marriage is an integral, organic union, and its idea is rooted in the basic law of nature: bringing to unity and integrity the bifurcated nature of man. It is not surprising, therefore, that the ideal of marriage, purifying and elevating itself in the concepts of humanity, finally received the meaning of a sacrament in the Christian world. Whatever meaning one may attach to this word sacrament - whether in the general sense or in the church sense, in any case, hardly anyone who believes in the integral existence of the human soul and in spiritual life will deny that in this union, unlike all other contractual unions, there is a great mystery of the deepest and most complete spiritual and physical union. Historical development of the idea of ​​marriage. And among modern tribes, which are in a wild state, there is no marriage, but only wild copulation. This, however, is not the original, but a corrupted state of humanity, for all peoples with history and traditions have preserved traditions about the ideal of marriage and the difference between legal marriage and concubinage. In the East and among Asian tribes, a corrupted form of polygyny has developed, in which the idea of ​​marriage cannot rise high above the concept of copulation. This is copulation brought to normal, and its main goal is to satisfy sensuality and the instinct of procreation. A family does not arise from such a marriage, because it lacks the unity and integrity necessary to form a family. The woman in it stands low; it serves a man only as a means to satisfy his natural instinct. This subject of marriage covers almost completely the satisfaction of spiritual needs, the goal of spiritual communication between a husband and his wife. In polygamy, marriage is primarily a private matter for a man: I say primarily, because one cannot completely deny the legal and moral significance of marriages in Muslim polygamy: there, from traditions and customs sanctified by religion, even a special marriage law has been developed, in which the wife is not deprived of some protection in relations with her husband, in property and in the event of divorce. In addition to polygamy, the social life of wild tribes presents examples of polyandry or polyandry. Polyandry, as a form of marriage, still exists among some peoples, for example. in Tibet, on Malabar. shore, among some American tribes on the river. Orinovo, etc. In polyandry there are 2 forms - one rougher: the husbands are all strangers, step-brothers, and the other: several siblings have one wife. In such a family, children, of course, cannot have a father; there cannot be a visible, external relationship between father and children. That is why among tribes where polyandry prevails, upon the death of such a married man, his sister and children inherit him, and not his wife and children. Children are considered to belong to the mother's clan and tribe. Curious information about this subject can be found in the book: Primitive Marriage or Inquiry into the origin of the Form of capture in Marriage ceremonies, by M'Lennan Advocate. Edinburgh, 1865. On the polyandry prevalent among some hill tribes in the East Indies, see Transactions of the Ethnological Society of London. Vol. VII, 1869, article by Chert: An Account of the Hill-tribes of the Neilgherries. A very interesting description of the custom that exists among the named tribe is that all brothers, no matter how many there are in the family, have one common wife. They live together with her, but when one came in to her and hung his stick and cloak at the door, the rest should not enter. Children, no matter from whom they actually descend, are considered older - the legitimate child of the eldest brother, the next - the second brother, etc. Recent literature is quite rich in historical research on family life and family relationships. Usually the starting point of these studies is the era of patriarchal life. The most famous writers on this subject (such as: Fustel de Coulanges - La cité antique. Maine. The Ancient Law) have argued that most of the legal relations among civilized peoples stem from the original idea of ​​\u200b\u200bfamily and family power. But in recent times, studies that have appeared (mainly in England, Maclennan - Primitive Marriaqe, Lubbock - The oriqin of civilization and the primitive condition of Man, London, 1870) push their starting point even further than patriarchal life and look for the initial legal features of family relations in observations of the life of wild tribes. Hence a whole series of new conclusions and ingenious hypotheses that require further confirmation. So, for example, Lubbock proves that the patriarchal structure was preceded by two more periods of social organization, of which in one, tribes live in a state of mixed copulation, and born children do not know the relationship to their parents, but only know the relationship to their tribe; in the other, due to the unknownness of the fathers, one relationship to the mother is indicated and kinship is determined only by the mother. And so the relationship to the father occurs in the consistent development of tribal life later than the relationship to the mother, and, finally, after everything, the child’s relationship to both parents comes into consciousness. From the initial copulation - among one's own tribe - marital copulation degenerates, and the first way to it, according to Lubbock, is the abduction of a woman from another tribe on the occasion of war. In the historical development of marriage, little by little the following appear: the decisive replacement of polygamy with monogamy; recognition of a woman as a man’s friend in the moral and legal sense; the release of a woman from home confinement and her appearance in society; the decisive exclusion of concubinage in marriage; religious sanctification of marriage; legal organization of marriage. We see the first signs of a purification of the idea of ​​marriage in the Greek world. Greek marriage is monogamy; but along with it there is also a concubinage, and the woman is still imprisoned at home, doing housework. The wife rules the home; But when a woman appears in society, when she takes part in public affairs, when she influences the society of men, it is not as a wife, but as a hetaera. Roman marriage is incomparably higher. The Roman concept of female valor is also broader. A Roman respects a woman, trusts her more and therefore gives her more freedom. A Roman woman is a citizen, she is the wife and mother of a Roman citizen - one legal wife, and a legal mother. In Rome, a strict form of civil marriage (confarreatio, coemtio) appears, and subsequently another, more free form (consensus). The firmness of the concept of the legality of birth is protected by the assumption that the child belongs to the husband of the mother who gave birth to him. For the first time, a definition of marriage appears, which in theory is quite worthy of it - conjunctio maris et feminae, consortium omnis vitae, divini et humani juris communicatio. But alongside this we see views that contradict the fundamental concept of union and communication. The ancient law gives the husband unconditional power over his wife (manus), as over a powerless instrument, as over impersonal property, and the new law opens the union in indifference to the idea of ​​marriage. In the new Roman, freer marriage, the concept of the strict authority of the husband - manus - disappears. The wife is tied to the place of residence and forum of her husband and is deprived of power over the children, but she has her own property and manages it. The husband's authority is exercised in all its severity in the event of a violation of fidelity on the part of the wife. The civil element of marriage and the form take precedence over the religious element and inner meaning. The family union of the ancients was based, as proven by the latest research, not so much on blood ties, but on a religious idea. The home in every family was a place and subject of religious worship, which bound all family members in a strong union under the authority of the head, who was at the same time the main priest of the household cult. This is where the sanctity of marriage among the ancients and its religious significance come from. The family formed a closed union, and the religion of each family was its exclusive property, for it consisted in the worship of its home and its dead ancestors: no outsider could participate in this service; consequently, when a woman, moving from someone else's family to another, had to leave her home cult and approach someone else's hearth and someone else's religion, this transition was considered an important matter and was accomplished through a solemn act. From here comes the first religious ceremony of marriage, which consisted of three essential acts. Firstly, the girl had to leave her home, from which her parental authority solemnly released her (traditio in Romans). Secondly, she was brought to the groom’s house in a solemn procession, with hymns and religious refrains; at the threshold they brought her the symbols of home worship - fire and water, and immediately she was symbolically abducted by the groom in order to show that she was transported from one hearth to another not so much by her will as by an imperious act of force. Thirdly, in the groom’s house, in front of the new hearth and in the face of the new household gods, a ritual of sacrifice had to be performed, and the bride and groom had to taste the same homemade bread (panis farreus, confarreatio) and were finally united in one household religion. Only such a marriage is recognized as completely legal; in it only the supposed communion of human and divine law took place between husband and wife. Regardless of Roman concepts, the ancient Germans had a pure idea of ​​marriage. Their marriage, according to Tacitus, was the communication of a lifetime and had the moral properties of love, purity and fidelity. In the midst of corrupt imperial Rome, the ancient concept of marriage died out, but Christianity brought its pure and sublime ideal into this corrupt environment. Society just had to implement it in reality. The concept of marriage began to take shape again legally and developed during the Middle Ages under the influence of Roman civil, church canonical laws and German ideas and customs. Canon law restored the strict dependence of the wife on her husband, according to the Old Testament. The power of the husband is summed up under the Roman meaning of dominium, potestas, imperium maritale. The Church solemnly condemns intercourse outside of marriage, condemns divorce, and even, while pursuing the ideal of marriage in all its severity, looks at a second marriage as a concession to human weakness, and completely prohibits the fourth. Folk customs have been fighting this church view for a long time. The Church pursues the German custom of buying a wife, and the idea of ​​buying is replaced by the idea of ​​ceding power over a woman, and the price of the cession is a morning gift (Morgengabe), which later degenerates into a widow's share (douaire) or a donation on the occasion of marriage (donatio propter nuptias). The Church, giving marriage publicity and solemnity and at the same time linking it with the concept of dowry (Nullum conjugium sine dote), thereby counteracts the confusion of marriage with promiscuous cohabitation. Under the influence of the church, a strict concept of the legality of birth in a legal marriage is established and the establishment of community of marital property is developed. In the Middle Ages, the church assumed exclusive authority, placing itself above the people and the state. And the statutes of marriage and the resolution of all issues regarding marital relations were assigned by the church exclusively to its department, except for a few issues related to class rights and rights to property. The concept of marriage as an institution of church, rather than civil law, was established. But in the same era, the idea of ​​marriage in the West, spiritualized under the influence of the church, darkened in the church consciousness under the influence of clerical concepts about the fundamental difference between the people and the clergy, between the world and the church, and the church hierarchy began to look at marriage, which had become the exclusive property of the laity, as an institution, although divine, but created for the lower, for the worldly rank. In the 11th century, Pope Gregory VII raised celibacy of the clergy to the level of dogma, and these celibate clergy arrogated to themselves the exclusive right to judge marriage matters. This right has been appropriated by the church since the 9th century in the East. But in the Greek Church, which has always been somewhat dependent on secular power, secular legislation never completely renounced its rights in marriage matters; on the other hand, in Orthodoxy the concept of the church has invariably been preserved as a society of all believers - both spiritual and secular orders, and therefore the church consciousness has never placed itself above marriage, in which the church recognizes the Divinely established sacrament; and the Orthodox clergy, without shying away from marriage, kept the idea of ​​a marriage union in constant spiritual honor. Реакция против церковного авторитета, обнаружившаяся с особливой силой в XVI столетии, повела за собой реакцию и в догматическом понятии о браке. Протестантские богословы, вслед за Лютером, объявили брак учреждением хотя и святым, но созданным для человека и потому подлежащим праву человеческому. Освящая брак религиозным идеалом, даже требуя для него религиозного освящения, они в то же время стремились освободить его от искусственных ограничений, созданных для брака церковно-католической властью, и перенесли с церкви на государство право брачного законодательства и право брачного суда. However, the new legal concept of marriage arose not under the influence of the struggle between Catholicism and Protestantism in Germany, but under the influence of the struggle between state power and church power in France. Here, for a long time, especially since the 18th century, lawyers have clarified the civil, legal nature of marriage, as opposed to the religious, internal side of this institution, and sought to separate the sacrament in marriage, subject to ecclesiastical jurisdiction, from the marriage contract, subject to secular authority. Despite the strict decree of the Council of Trent (1545–1563), which severely condemned this view of marriage, the state authorities in France retained the right to legislate and judge marriage. This concept of marriage was expressed in all its consistency in revolutionary legislation, and finally, in the Napoleonic Code, it became the basis of the entire marriage system. Marriage is recognized, first of all, as a contract and, according to the Napoleonic Code, is included in the number of contracts (contrat de mariage). In this capacity, he is completely detached from church legislation and is associated with purely civil, legal forms. The religious rituals of marriage are left entirely to the conscience of the spouses and the moral influence of church authority. Civil legislation began to recognize as valid only those marriages that complied with civil forms, without concern for church welfare. In this sense, a concordat took place between Pope Pius VII and Napoleon: church power had to yield. In a similar sense, since the time of Joseph II (1783), Austrian legislation has been expressed under the influence of philosophical teachings. Despite this distinction between the areas of church and civil law in relation to marriage, even in those countries where the civil marriage system prevails, clashes of one or another idea, confusion of concepts from the point of view of church and state, are still possible. There is not and cannot be complete agreement on this subject; where the question of the blessing of a marriage by the church is a free question of everyone's conscience, there arise tempting clashes in public concepts of marriage, for it may happen that the same marriage will be valid from a church point of view and invalid from a civil point of view, and vice versa. Where marriage is presented as a canonical institution, social difficulties of a different kind arise. In one situation or another, the question of mixed marriages is one of the most difficult. In our history, the question of the legal meaning of marriage has never presented such difficulties. With the introduction of Christianity, the sacred ideal of marriage was transferred to us and the canonical rules on marriage of the Helmsman’s Book were introduced. All matters that arose regarding marriage and marital relations were subject to the department of the church, without exception. They, like cases of other jurisdiction, constituted an income item for the clergy, and an indisputable item. The worldly authorities did not interfere in these matters. But when the question of jurisdiction acquired national significance, then serious clashes began to arise on this subject between the ecclesiastical and secular authorities. At the beginning of the 18th century, the state took a decisive advantage in political terms over the church and accepted it into its department, into its tutelage, as a subordinate institution. From this time on, a decisive distinction began between the departments of spiritual and secular authority in matters of marriage. The state begins to establish its own laws on the conditions for marriage and on marital relations, and these laws become binding on the church. Subsequent legislation made this distinction even more decisively and in more detail (decrees of 1841 and 1850). Now marriage is subject to the authority of the church, since it is a sacrament: this includes, first of all, the celebration of marriage; further – certification of the marriage, recognition of its legality and dissolution. On the contrary, all matters relating to the contractual aspect of marriage, to the violation of free will and trust, and all questions regarding the prosecution of crimes against the marriage union are subject to the department of secular authority, and sometimes an opinion from the ecclesiastical department is required. T. XVI, Const. Gr. Court. Art. 1337 and so on; Zach. Court. Citizen, Art. 440 et seq.; Est. Corner. Court. 1011; Zach. Court. Angle, art. 692 et seq. § 4. Legal conditions for marriage. – The first condition is the free consciousness of the parties. – The concept of coercion. – The custom of marrying and giving in marriage in the family and in relations of patrimonial power. – The right of the state to force marriage. – Historical significance of authorization for marriage. – Requirement of parental consent under foreign laws. – Restriction of freedom in marriage by the state and community. – Resolutions of Russian law. – The economic significance of marriage in peasant life and its consequences. – Restrictions on freedom in marriage under the conditions of military service. – Private restrictions. For a marriage to be legally valid, certain conditions are required, i.e. either the existence of certain properties and events necessary for the legality of marriage is required (positive conditions), or the absence of properties and events incompatible with the legality of marriage (negative conditions, empêchements). These various demands, historically formed, arose from various considerations: natural morality, divine and church law, and, finally, from state considerations; there were and are restrictions that express the special political desire of the legislator, for example, to prevent excessive population growth, to maintain exclusivity in certain classes, etc. The first condition for marriage is the free consent of both parties (consensus facit nuptias). The condition in itself is simple, but looking at the state of social and family life, it becomes more complicated. The concept of coercion, like any human concept, is relative. Now, when almost everywhere a civil person is recognized as free, our consciousness does not allow such a relationship between two persons with legal capacity in which one could positively determine the will of the other in such an important act as the choice of a groom or a bride. In a legal sense, this would be coercion, a violent determination of someone else's will. But there is no doubt that in reality, just as it was possible in the old days, so it is now possible to have such relationships in which the choice of the bridegroom or the bridegroom is made without the participation of the parties, by another person, without being coercion and violence, without violating a right that does not exist in the consciousness of the subordinate, without destroying a normal relationship, without arousing opposition and protest. In ancient Rome, the father gave his daughters in marriage according to his will; his will was decisive, which is consistent with the strict legal nature of the family power, which rightfully belonged to the Roman householder. In patriarchal life, where custom is stronger than law, we encounter the same phenomenon. Among the Jews, marriages were concluded at the will of the parents, without the consent of the children (examples: Gen. XXI, 21; XXIV, 4; Judges XIV, 2), or, better said, the children unconditionally obeyed the choice of the parents. The same custom remains in force among today's Jews (see the article of the city of Berlin about the Jews, in Ethnography. Collection. 1862). In the East the same custom is still in force. And in individual families of any class one can imagine such relationships in which the subject, without any opposition or influence, indifferently accepts the choice, instruction or order of the person in power. Where the will of the subject is silent and does not even protest internally, it is impossible to see violence there, because violence and coercion are presupposed where there is an environment that is counteracting or capable of counteracting. So, for example, in our previous relationships of serfdom it happened, and in family relationships it happened and happens that the landowner chose his serf, the father chooses his son a bride. In a general sense, this involves compulsion of the will; in a particular sense, under the given circumstances of an individual case, there might not have been violence against someone else’s will, there might have been a natural phenomenon consistent with the conditions of life. On the other hand, if it was not necessarily expected that parents would order their children to marry, then everywhere and unconditionally the consent of parents to the marriage of their children was required. This decisive importance of family power in marriage was fully consistent with the state of life in which the property of a civil personality belongs not so much to the individual as to the family. Each family has its own head and representative; Every man in the family, sooner or later, must become the head and representative of his family. This gives rise to the idea, on the one hand, of the right of the head of the family to marry his children, who are subject to him; on the other hand, about the duty of every adult and healthy person to get married and start his own family. The latter idea was expressed, as we know, in the legal restrictions that existed for singles not only in the ancient Greek republics and Rome, but also in the laws of the German states until the 18th century: the state once considered itself to have the right to force the law into marriage (Hagestolzenrecht). Little by little, however, this idea had to give way to the beginning of personal freedom; The national importance of the family has also changed, but parental consent to the marriage of children remained for a long time a decisive condition for marriage; There was a time when it was considered so decisive that the state authorities refused to recognize the marriages of children entered into without the consent of the parents. The Church has never recognized this rule in unconditional force: strictly guarding the pure concept of marriage, as an independent union of two persons, it has always adhered to the rule that in marriage the mutual consent of the spouses is essential: marriage can exist without authorization; in any case, with the coming of age of the spouses, the need for authorization ceases for them, and an unauthorized marriage remains in force if it is sealed by subsequent cohabitation of the spouses. Hence the continuous quarrels between church and state that have continued for centuries in the West on the issue of marriages concluded against the will or without the consent of the parents. These quarrels between church and state were strongest in France, which partly explains the particular severity of French law regarding marriages entered into in defiance of family authority. Nowadays, the rule on parental authorization remains in the laws, but only in the sense that parents have guardianship rights over minor children regarding marriage (only French law goes further than this measure, as we will see below). But, on the other hand, the new legislation strengthens the beginning of administrative and police restrictions for those entering into marriage and the associated conditions for administrative authorization. According to the latest European law, parental consent is required in the marriage of minors; When minors who do not have parents marry, the consent of their guardians is required, and if there is a living mother or grandmother, then their consent is also required. However, if the marriage was concluded without the consent of the family authority, it is not absolutely recognized as void for this reason alone. In Austria, the consent of the father is required only in the marriage of minor children, and the right to challenge the marriage for disagreement exists only as long as the parental or guardianship continues; in Prussia, this right is limited to 6 months for the father, as well as for the spouse himself, upon coming of age. The French law is the strictest on this subject. A marriage is subject to refutation: when it is concluded by a son under 25 years of age or a daughter under 21 years of age, without the consent of the father, and in his absence, of the mother or grandfather and grandmother; equally when minors entered into marriage without the consent of a guardian or family council. Adult children must seek the consent of their parents or grandparents through the so-called act of respect, acte respectueux et formel, through two notaries, and up to 3 times; in a month, if the man is not older than 30, and the woman is 25 years old; whoever is older is not exempt from this obligation, but is content with a one-time presentation of the act of respect; only one month after the final presentation is it possible to marry without authorization. The law threatens officials with strict penalties for performing marriages without these formalities, and the right to challenge a marriage for violating them lasts for a whole year (for the spouses themselves, this year is calculated according to the age of majority). Code Napol., art. 148, 160, 182, 183. In other cases, the free will to marry is limited by the state and community. All official and administrative restrictions on marriage have already disappeared from the laws in France and England, but remain in large numbers in German legislation, still representing an example of often inappropriate and violent interference of state power in private relations. Almost all German legislation requires the consent and permission of their superiors when entering into marriage for persons in public service. The most liberal law on this subject is in Austria, where since 1815 marriages of officials have been declared free, and only in one department has the obligation of subordinates to declare their marriage to their superiors been retained; but in all other German states there remain strict restrictions that place the subordinate, upon marriage, in actual dependence on the will of his superiors. But German laws, especially until recently, differed from all other legislation in numerous and severe restrictions on marriage in the interests of the community. These restrictions arose in Germany historically from city law and from the strict guild structure of urban industries; Subsequently, based on the model of the old city and guild statutes, similar restrictions were formed in favor of all communities - urban and rural. They consist, as mentioned above, in connection with the right of registration or belonging to a community (Heimathsrecht) and the corresponding right to charity in case of poverty. These restrictions are meant to prevent marriages between the poor who do not have a constant income and means of support, but, despite all their burden for citizens, they do not achieve the goal, because they do not prevent people deprived of the right to marriage from giving birth to illegitimate children out of wedlock, whom the community in any case must accept for charity. These restrictions would be understandable if they applied to persons already in the care of the community, but they apply to all those about whom it is still impossible to say with certainty whether they will have the means for the rest of their lives or, having become impoverished, will they themselves or their children ever enter public care. Until recently, similar restrictions existed in all states of Germany, but in 1868 they were abolished, and freedom of marriage was restored in all states of the North German Confederation. The most severe regulations on this subject appear to be in Bavaria and in the Baden Duchy. Those entering into marriage are required to certify that they have property that generates at least the required amount of income; that they were not wasteful or spendthrifts, but had led a thrifty life until then; that they have a place to live, etc. ready. In Bavaria the law is so jealous of the interests of the community that it imposes, for example. the priest who solemnized the marriage without the permission of the community is responsible for all costs and losses that may occur for the community from this marriage. These restrictions are all the more difficult because they connect marriage with extensive written proceedings, subject to fees, and make it dependent on the discretion of city officials and public places. It is necessary to submit requests, draw up reports, protocols, decisions whenever permission to marry is required. In Bavaria, it often happens that a poor person, for 10 or more years, vainly renews his annual request for permission until he finally receives it, having spent a significant amount on one proceeding, and meanwhile, of necessity, lives out of wedlock and has illegitimate children with the woman with whom he wanted to marry legally at the very beginning. According to Russian law, for marriage, mutual consent is required first of all (Zak. Gr. 12). Coercion by parents and guardians is prohibited. The law also threatens parents with punishment for forced marriage (Code of 1885, Art. 1586). According to Mohammedan rules, marriages between young children, committed at the will of the parents, must remain valid even after the spouses reach the age of majority. Sat. Sep. decide I. N 208. When entering into marriage, a healthy state of mental faculties is assumed, which does not exclude the possibility of expressing free will. Therefore, it is forbidden to marry insane and insane people: such a marriage is invalid (5, 37, paragraph 1). A marriage committed through violence or coercion is not recognized as legal (12, 37, paragraph 1). A claim for coercion in this case can be initiated (where Judicial Statutes have not been put into effect) no later than 6 months from the time it was possible to file a complaint; cases of this kind begin only at the request of the most interested spouse or relatives and guardians (Law. Court. Civil., Art. 447). Violence is subject to a civil court, and a judgment on the validity of a marriage is subject to a church court (Const. Ang. Court., Art. 1012; Legislative Court. Ang., Art. 695). It is obvious, of course, that in such cases it is very difficult to prove coercion, because it is mostly moral and is rarely accompanied by material signs. Moreover, it is not always easy to draw a line between persuasion and moral coercion, because with respect to weak characters, persuasion on the part of a person with authority merges with coercion; and the free will of the person entering into marriage is expressed by a well-known formula at the wedding and the utterance of solemn words confirms the act of will, so that then it is no longer possible to restore the process of moral struggle that preceded this moment between the instinct of freedom and concession to the moral influence of authority. Only material violence can be proven in these cases. It is known that in many cases among peasants, marriage is primarily a matter of economic necessity, and this necessity comes first. The free choice of a spouse out of sympathy, for moral and mental purposes, now takes a secondary place, and does not happen in all cases. From this point of view, the long-standing custom of landowners, for example, choosing brides for grooms and grooms for brides is explained. This is undoubtedly a sad phenomenon, indicating a low degree of the concept of marriage and the meager development of moral needs; but it would be unfair to think that such a choice is always accompanied by moral compulsion where, according to the conditions of social life, the bride and groom do not care so much about mutual sympathy as about concluding a marriage under conditions that are possibly the most advantageous in material and economic terms. Peter also fought against this custom with patriarchal views of both family and patrimonial power, and it has not yet emerged in families. In general, among the masses of the people, in the present state of their life, which is bound from everywhere by material needs, which are satisfied with extreme difficulty, marriage appears most importantly from the material side. Marriage is cohabitation, a communion of life: it is natural that the more fully each individual life develops and the more deeply it goes inward, the more fully and perfectly the communion of life in marriage manifests itself, the more the ideal of marital communion is clarified in the mind and the stronger the need to realize the ideal in reality. In peasant life, only selected natures approach the consciousness of spiritual communication in marriage, but they are also bound by custom, which is an unconscious part of the life of the whole mass. So, it is not surprising that in peasant life the concept of marriage appears most clearly from the material side. The wife should be an assistant, and mainly an assistant in material work around the house and household. This need determines, first of all, the choice of a wife: it is necessary to choose not so much a wife who corresponds to the spiritual needs of the husband by his nature, but rather one who corresponds to the needs of the household. The wife should have the hard work of housework and farming, which belongs exclusively to her; therefore, she must be strong and familiar, and the man needs to be married earlier. That is why in peasant life they are not embarrassed by the relationship between a woman’s age and a husband’s, and in other areas it has even become a custom to choose a bride for the groom who is several years older than him, for such a wife has a whole family, i.e. the entire working family community to which he belongs, before division, and the husband acquires for himself an important increase in working capital 2 . According to the general concept, the wife goes to her husband’s house; but this concept also changes depending on the economic needs of the family. In our peasantry, it is not uncommon for a son-in-law (the so-called vlazeng) to go to the house of a childless father-in-law and in this case, upon his death, becomes the head of the house. This relationship is determined by the marriage, or testamentary, record, by virtue of which the father-in-law denies his estate to the son-in-law, so that the son-in-law feeds and clothes him until death, so that the son-in-law, even during the life of the father-in-law, entering his house, becomes the complete manager of the house. It happens that the bride herself, by agreement with the groom, accepts him into her house and onto her plot of land. In general, in peasant life, the main norm for marriage is the marriage transaction, and the content of this transaction is almost exclusively economic, i.e. a condition on mutual contributions, provisions and payments on the occasion of marriage and household, and a penalty or fine for non-compliance with the condition is also common, so that the main place in the contract belongs to what in the whole moral and legal idea of ​​​​marriage is only an appendage. The concept of the upper classes about a dowry is sometimes completely distorted in peasant life: it seems more natural for the groom to pay, or for his family to pay for the bride, as for the acquisition of labor coming from another family, and this payment, according to custom, is used either in favor of someone else’s family, or in favor of the bride herself, for marriage expenses. This payment is known in some areas under different names: request, deposit, withdrawal, luggage, masonry, exit, reprimand. In many places among peasants, the dowry consists only of clothes, utensils, and icons, and the transfer of money is always expected from the groom to the bride's father. This money is no longer subject to return after the marriage, when it has taken place and continues, while the dowry after the death of a childless wife usually goes to her relatives. The law, requiring the action of free will for marriage, on the other hand, in other cases limits this will for reasons of family or state law and requires that the will of the person entering into marriage be supplemented in this decisive action by another dominant will. On this basis, the consent of parents, guardians, etc. is required. In our country (Zak. Gr., ed. 1887, art. 6) it is prohibited to marry without the consent of parents, guardians and trustees 3 (the prohibition to marry without the consent of guardians and trustees is counted from January 1, 1835; see Decree of June 4, 1836 in the Full. Collected Law. N 9252). The kidnapping and abduction of a bride is a criminal offense (Code of 1885, Art. 1549). If parents interfere with the marriage, then the law does not indicate a direct means of dispensing with their consent. The personal power of parents over non-employee children extends beyond the latter’s age of majority (178), and regarding employees it is shared with the authorities (179, paragraph 2, see also article 7). The power of guardians and trustees continues until adulthood. However, the law does not mention the need for written evidence of permission (Article 9). Orthodox parish clergy are allowed to marry schismatic children after joining Orthodoxy, and without the consent of the parents (see Moscow Diocesan Gazette 1870, No. 14). In Chernigov and Poltava provinces. (according to the Lithuanian statute) for marriage of girls under guardianship, the consent of the guardians is required, even if they were with the mother: the consent of the mother alone is not enough. But if the guardian does not give consent because he wants to keep the estate in his management, then the girl is given the right to ask permission from the court; the same right in such a case belongs to the daughter and against the father who manages her estate (Zak. Gr., art. 7, 264). According to the statutes of the Evangelical Lutheran Church in Russia (Const. In. Isp. 199 et seq.), parental consent is required for the marriage of minor children; But parents can also refuse consent to adults for reasons specified in the law. Persons in civil and military service must seek permission from their superiors (Article 9). This rule was originally established for military personnel under Peter I (Nev. I, 155) and not earlier than the first edition of the Code of Laws was extended to all employees in the civil service; but for violation of this rule only disciplinary punishment is imposed (Code. Ed. 1885, Art. 1565). A special permit is required for Russian diplomatic officials who marry foreigners (Zak. Gr. 66). On the procedure for allowing marriage for military personnel, special rules are established in the Charter on Military Service and in the Code of Military Regulations. The extremely difficult situation in which married officers serving in the army are placed regarding the provision of daily support and the future of their families was the reason for prohibiting officers from marrying before the age of 23. From 23 years of age to 28 years of age in the ground forces and 25 years of age in the navy, marriage is permitted by their superiors only upon presentation of property support (Article 25, paragraph 2). The unrestricted marriage of lower ranks while they were in active service was a constant source of difficulties for the troops, which, in most cases, did not have free premises for married people, nor the means to arrange and provide for the life of their families. Therefore, the Charter on Military Service (Article 25, paragraph 1) prohibits lower ranks in compulsory service from marrying. Recently, the rules on marriage of military personnel, officers and lower ranks of the land department have been extended to the lower ranks of the Cossack troops who are in active compulsory service, and to officers, except for those who are in the army or in combat units without pay. But when a person, due to his position, is not subject to the authority of his superiors, then he is not obliged to demand special permission from the government to marry, nor dismissal from the class or society to which he belongs (Article 1). It wasn't like that before. Previously, when every non-service person was in the sovereign's tax, city or village, a person belonging to a city or village should not have entered into marriage without a declaration, i.e. without announcing it to the city or village authorities; and the appearance was associated with extortions that took the form of ransom or tribute (ubrus, wedding, wedding marten, newly-married ubrus, hatching marten). This collection went either to the treasury or to the benefit of the authorities and governors. It was connected with the feeding system and with the idea of ​​\u200b\u200bthe integrity and totality of the tax lying on the community. Similar collections existed before Catherine II and were only destroyed by her in 1775 (see Nev. I. 238). The specified conditions of permission are not decisive. If a marriage is committed without observing them, then for this reason alone it is not considered invalid (Code of Punishment, Art. 1565–1567). Pupils of the Orphanage, until dismissal from its department (which for the most part comes with full majority), are prohibited from getting married. Of some categories, pets (possessed by disease and injury) remain under the care and control of the Vospit for the rest of their lives. At home: this prohibition seems to apply exclusively to them. But the law also provides them with the opportunity to receive from Education. At home permission to marry; along with this they quit. Others, namely rural teachers, are obliged to serve in this rank for the required number of years: they can, upon reaching adulthood, marry with the permission of their superiors (Uk. June 7, 1869, Poln. Sobr. Zak. N 47, 202). The restrictions that existed under serfdom on serfs entering into marriage by the will of the landowner were abolished with the abolition of serfdom. Private restrictions on marriage for some people. For monastics and ordained priests or deacons, as long as they remain in this rank, marriage is completely prohibited on the basis of church decrees (Gr. 2), but for clergy in this rank neither the first nor the second marriage is prohibited. Sons of clergy and clerks who are not trained in the spirit. textbook institutions and do not hold church positions, they can marry without the permission of the diocesan authorities. Those holding a position in the church or spiritual department are required to seek permission. The origin of the bride from parents of a non-clerical rank does not constitute an obstacle to the permission of marriage, provided, however, that the church rules regarding the wives of persons admitted to the priesthood are observed. Full Collection Zach. 1871, N 49, 382. Clergymen and monks who have relinquished their rank and title enter into marriage with us without hindrance. The Roman Catholic Church does not bless such marriages. Prisoners held in correctional detention units are prohibited from marrying. Est. sod. under page ed. 1890, art. 297, Zak. Gr. 19. Before being distributed to Tyumen, exiles are prohibited from marrying each other, but are allowed to marry non-criminals on the way. Est. exile ed. 1890, art. 86, 87. According to the distribution, the exiles are free to marry each other, with a note in the expedition about the exiles and in the Tobolsk (now Tyumen) order. Women exiled to Siberia with deprivation of all rights can only marry similar exiles. Exiled women listed after their term in the state. peasant women can marry freely with all persons, only the husband must sign a signature that he will not move and will not take his wife out of Siberia. Exiled men are allowed to marry freely and with persons of higher status. Ibid., art. 330, 410, 412, 414, 415, 512; Zach. Gr. 104. Exiled convicts of the first category after 3 years, third category after 1 year after entering the correctional detachment are allowed to marry both among themselves and the exiles. Est. exile Art. 305, 412. On the dissolution of marriages and on the entry into new exile-convict settlers, deprived of all the rights of the estate and sentenced to exile to live in Siberia, with the deprivation of all special rights and advantages, see Ord. about exile, cont. 1893, art. 409, add. and approx. 501, add. and note, 2, 512, note. and adj. to Art. 37, approx. 2. § 5. Another condition for marriage is freedom from marriage bonds. - Funeral period. - Marriage of divorced people. – Marriage of those divorced for adultery. - Fourth marriage. – The third condition is the absence of kinship and property. – Decrees of foreign legislation and Russian church law 2. Another essential condition for marriage is in connection with the essential condition of marriage - exclusivity. Marriage is a union of one husband and one wife, therefore, whoever enters into marriage must be free from the bonds of marriage. Entering into a double marriage is decidedly against the law; but entering into another marriage, after the termination of the previous one, is not completely free everywhere; it is subject to certain restrictions and formalities. It is necessary, before entering into the next marriage, to certify the termination of the previous one (which may require special formalities, for example, in the case of the unknown absence of the previous spouse). In addition, some legislation requires for a woman entering into a new marriage that the required urgent time (from 6 to 12 months) pass between the termination of her previous marriage and the entry into a new one, unless it is reliably proven that she was not and could not be pregnant from her previous marriage. This urgent time is called the year of mourning (Trauerjahr). This is the requirement, for example, of Prussian law, which in such a case assigns a period to a widower, only a short one, six weeks. If a previous marriage is dissolved by divorce, can the former spouses in any case consider themselves free and enter into a new marriage? This issue is resolved in accordance with the church rules of each religion where there is a church form of marriage, and by civil laws where marriage is recognized by a civil contract. French law prohibited for three years only those spouses who had dissolved their previous marriage by mutual consent from entering into a new marriage. According to Russian law, a person entering into marriage must be free from marriage ties with another person (Law Gr. 20, 22. Establishment In. Isp. 212). Otherwise, the secondary marriage is declared invalid (Cf. East. Gr. Zak. Nevol. I, 241). If a marriage is declared invalid, separated persons may enter into a new marriage (Law Gr. 39). But in some cases, upon divorce, the law, in the form of punishment to the spouse for guilt or crime, completely prohibits him from remarrying. Such is the bigamist (40); but the abandoned spouse is allowed, if he does not wish to restore his union with the one who left, to enter into a new marriage. If there was guilt on both sides, both are condemned to celibacy. A spouse who leaves his spouse and voluntarily hides in obscurity for more than 5 years is subject to the same punishment (Gr. Law. 4, 42). According to our church law (Helmsman St. Basil. Ave. 9), if a marriage is dissolved due to adultery of one of the spouses, then both the guilty wife and the guilty husband cannot enter into a new marriage. But Greco-Roman civil laws allowed a difference between husband and wife in the above case: an unfaithful wife was condemned, but an unfaithful husband was not condemned to celibacy (see Nevol. I, 173). The strict church rule was repeated here in the charter that was in force until 1850 (St. edition of 1842, Zak. Gr., art. 52): a spouse guilty of adultery was condemned to celibacy unconditionally. In the new statute on this subject, dated 1850, and in the new edition of the Code, this rule is not repeated. Therefore, it was said in the first edition of this book, it must be considered inactive. This conclusion was made too decisively, which was rightly pointed out to the author in the book: the proposed reform of the church court (Issue 1. 2nd ed. 1873, St. Petersburg, p. 75). Indeed, in the new edition of the Code, rule 52 of Art. St. ed. 1842 is only generalized, and there is no direct evidence that the legislator intended to completely eliminate the rule of church law contained in the cited Article 52; Secular legislation is not authorized to abolish church law. The rule contained in Art. 52 St. ed. 1842, was a repetition of the law, then former and now remaining in Art. 253. Est. about spirits. consistories, ed. 1883 (Full Collection of Laws, N 1495). This is church law. Previously, it was repeated in secular civil law. Subsequently, the civil code stopped repeating it. It does not follow from this that, as a church law, it ceases to exist. According to the Roman rule, when a marriage was dissolved for adultery, the offender was prohibited from marrying the person who had participated in the adultery. This rule is repeated literally in Austrian law; but canon law is not so unconditional: it prohibits the above-mentioned marriage only in the case where adultery was committed by prior agreement of the guilty, in order to dissolve the previous marriage of one of them, to unite with a new one, or when an attempt was made on the life of an innocent person for the same purpose by the guilty spouse. The French law (Code, 398) and Prussian land law adhere to the same view. For Lutherans in the Russian Empire, it was decreed in the Constitution. In. Spanish (Article 214) that the party who has violated marital fidelity and is therefore divorced is not allowed to marry the person with whom the violation occurred. In general, in a divorce for adultery or malicious abandonment, the guilty party is prohibited from entering into a new marriage without the permission of the consistory, which is given in the event of the consent of the innocent party, or her death or her new marriage (Articles 213, 257). Among Lutherans, some consequences of a previous, dissolved marriage are considered an obstacle that delays the opportunity to enter into a new marriage. Thus, a widower can enter into a new marriage no earlier than 6 weeks after the death of his first wife, and a widow no earlier than 3 months after the death of her husband; if pregnant, then after 6 weeks with permission. The widow must prove that she is not pregnant, and if the evidence is doubtful, she must wait another 6 months. A new marriage of divorced persons is possible after the expiration of the same periods from the date of dissolution of the previous marriage (Const. In. Isp. 215, 216). According to the law of the German Empire of 1875 on acts of wealth and marriage, marriage is prohibited: 1. Between blood in the descending and ascending lines. 2. Between brothers and sisters. 3. Between a stepfather and a stepdaughter, a stepmother and a stepson, a father-in-law and a daughter-in-law, a mother-in-law and a son-in-law, it makes no difference whether the kinship and affinity are based on marital or illegitimate birth, as well as whether the marriage on which the kinship and affinity is based continues to exist. 4. Between the adoptive parent and the adopted child, as long as this legal relationship exists. 5. Between a person divorced for violation of marriage and his partner. Marriage between a person under guardianship and the guardian or his children is prohibited while this relationship continues. After the death of one of the spouses, the other is free to marry (44), but only until the third marriage. A fourth marriage was always considered prohibited by the laws of the Greek Church. The Code of Tsar Alexei Mikhailovich calls the fourth marriage theft (if he steals) and although it does not directly declare it invalid (Code XVI, 15; 1651, June 27), it deprives the fourth wife and her children of inheritance rights, and therefore considers them illegal. The Code of Laws says: it is prohibited to enter into a fourth marriage (Gr. 21). Such a marriage is declared invalid according to rule 5, paragraph 37, art. Gr. Zach. (see Uk. 1767, March 29. In Nevol. I, p. 242 and note 567). In counting three marriages, after which the fourth is considered prohibited and illegal, there are dubious issues that required a decision by the Synod. Thus, it was recognized in 1848 that out of three consecutive marriages in which a person who accepted the Christian faith in the Orthodox Church consisted, only marriages concluded after accepting Christianity were counted. But a marriage terminated by dissolution is counted as three marriages (dec. 1824). To prevent double and fourth marriages, it was ordered to mark on the passports of merchants, townspeople and peasants: who is married or single or widowed and after which marriage. On everyone’s passports and certificates, the marriage ceremony is marked by a priest. Soldiers' widows cannot be married without a death certificate from their husbands. Zach. Gr. 22. On secondary marriages of wives of Mohammedans serving compulsory military service, see Zak. Gr. 93–95. For permission to marry spouses who are missing, see below and Art. 54, 56 et seq. Zach. Gr. and 882 Est. In. Spanish For a wife, entering into a second marriage is accompanied by disadvantageous consequences only in the right to a pension after her previous husband or to some benefits and allotments for his service. See Vol. III, Const. about pension, Art. 250, paragraph 2; Est. Emerit. cas. ed. 1886: Min. Just., Art. 40; Horn. Engineer, Art. 65, paragraph 3; Engineer. Put. Communication, Art. 65, paragraph 4; led Imperial Mary, St. 25, approx. 1; Petersburg fireman teams, art. 28, paragraph 1; see also Const. Cossack. Sat down. adj. to 53 Art. on cont. 1862 § 35, 66. 3. The third essential condition for marriage is that those entering into marriage are not closely related to each other. Such marriages disgust the conscience of all civilized peoples. This disgust (horror naturalis) is beyond doubt, but what to call close kinship is not agreed upon by everyone in the same way, and the boundaries of the prohibition are defined differently. In the Middle Ages, the Catholic Church, under the influence of ascetic aspirations, extended the prohibition to the seventh degree of not only blood relationship, but also property. Innocent III in 1219 moderated this severity to the fourth degree of canonical numeration. According to the Council of Trent, this prohibition is still moderate. Everywhere the prohibition of marriages between blood relatives in the direct line and between siblings remains unquestionable. But marriage in the so-called respectus parentelae, i.e. with the offspring of a sister or brother is possible everywhere, with the permission of the subject authority. Marriages between cousins ​​are free, but according to some legislations, according to canon law, they require special permission (Austrian, Saxon - in the latter even marriages with first cousins ​​are subject to this formality). Illegal kinship, if proven or beyond doubt by conviction, is recognized as an obstacle to marriage to the same extent as legal kinship. Marriage between an adoptive parent and an adopted child is not permitted unconditionally; between two adopted children - only as long as the adoptive parent is alive. According to spiritual kinship, only the prohibition of marriage between a godson and a godson, recognized by the Council of Trent, is in force. The attitude of confirmation is equalized with the perception from the font. Property, by canon law (and by Austrian law), prevents marriage in degrees parallel to those of kinship; but this rule has almost lost its practical significance due to the convenience with which permissions are given. According to the statutes of the Lutheran Church, in almost all legislation marriages with a stepmother or stepfather are certainly prohibited, and marriage with an aunt and the widow of an uncle (prohibited by the Mosaic Law Lev. XVIII, XX) is considered permitted. But great fluctuation is noticeable in the laws regarding marriage in the first degree of property. The Law of Moses obliges a brother to marry only the childless widow of his deceased brother, and prohibits a widower from marrying his wife’s sister (German theologians interpret this prohibition in a limited sense, i.e., this marriage with a sister-in-law during the life of her sister is prohibited, as an illegal form of polygamy). Marriage to a sister-in-law is permitted in Prussia and some German states; in others, it requires special permission either unconditionally, or under certain conditions (for example, when the previous marriage was terminated not by the death of the wife, but by divorce). In France it was prohibited until 1832, and from that time it became possible, with permission; in Belgium the same rule has been adopted, which, however, is in accordance with the canon law of the Catholic Church. In England, legislation is still hesitant to allow this marriage, despite the fact that the issue of it has been continuously raised in Parliament for a long time, and heated debate on this issue has not ceased in the literature. On the one hand, they call the permission of this marriage immoral, because it gives rise to unclean relations between the husband and his sister-in-law, raising hopes for marriage in the future; on the other hand, they claim that after the death of a wife, no one better than her own sister can replace her in the house - for the children and for the husband. Property due to an illegal blood connection is also not without, although to a weak degree, a prohibitive meaning (if its illegal relationship is not deprived of it). Prussian law (zemstvo law) initially permitted marriage with an illegitimate stepson or stepdaughter, but in 1844 a ban followed, and at the same time marriage with an illegitimate father-in-law, mother-in-law, father-in-law and mother-in-law was declared prohibited. The French law mentions property by adoption: it is recognized as an obstacle to marriage in the direct line. The property of spiritual kinship and the property of two relatives are no longer considered an obstacle to marriage; but in some German legislations of Lutheran law there is mention of cases of property that impedes marriage, regardless of church definitions, for reasons of moral decency (impedimentum publicae honestatis). On this basis, it is not prohibited, for example, the marriage of a father with the mother of the person to whom the father’s son is married; but the marriage of a father with the daughter of the person to whom the father’s son is married, and vice versa, or the marriage of two sisters, one with the father, the other with the father’s son, is prohibited. The prohibition of marriage between certain relatives arose and received a definitive form, in all likelihood, in the East, and served to protect purity and chastity in family life. Between the closest members of the family, in relationships in which a woman could appear before relatives without a veil, it was, in all likelihood, supposed to be a decisive prohibition to eliminate the possibility of any thought about marital copulation. According to Michaelis (Mósaisches Recht), the cases in which it is permissible to remove the veil from the Arabs are exactly consistent with the marriage prohibitions of the Mosaic Law. Our civil law does not take upon itself the determination of prohibited degrees of kinship and property, leaving this to church laws (23). Accordingly, all cases of the illegality of a marriage committed to prohibited degrees are subject to spiritual court (Law. Court. Civil., Art. 440). Secular law declares such marriages invalid (Gr. 37, paragraph 2). Cases begin officially based on denunciations and notices. Our church laws are the laws of the Greek Church, set out in the Helmsman together with the decrees of the patriarchs and emperors. The laws of the church have their main basis in the Law of Moses (chap. 18 and 20 of Leviticus), explained and interpreted in the rules of the apostles (19), conciliar (IV Ecumenical 53, 54; Neocesar. 2), patristic (Vas. Vel. 23, 78, 87; Timothy Alex. 11) and later church definitions. According to the Mosaic Law, marriage was prohibited: 1) a son with his mother, even with his stepmother; 2) brother and sister; 3) grandfather and granddaughter; 4) nephew and aunt; 5) father-in-law and daughter-in-law; 6) brother-in-law and daughter-in-law; 7) stepfather and stepdaughter; 8) son-in-law and mother-in-law. The Christian Church, having unconditionally accepted these prohibitions, extended them even further to maintain greater purity of marriage. According to the ecclesiastical laws of the Eastern Church, little by little there arose a prohibition in kinship to marry up to the 7th degree; in a two-relative relationship between one spouse and the relatives of the other - up to the 7th degree; between relatives of one and the other - up to the 5th unconditionally, in the 6th conditionally; in a tripartite relationship between one of the spouses and the relatives of the other. According to Roman law, left unchanged by the 6th Ecumenical Council, one first degree was prohibited, i.e. between the stepfather and the stepson’s wife and between the stepmother and the stepdaughter’s husband, but subsequently the Greek saints developed the custom of extending the prohibition to the 4th degree. Spiritual kinship is considered an obstacle up to the 7th degree (Nevol. I, 196. Notes on Church Law. Kyiv, 1871, p. 160). In Russia, due to the vagueness of the concepts, these rules were not applied equally until the publication of the Helmsman in the 17th century. The Rules of the Helmsman remain in force to this day. But their severity is softened under the influence of secular power. Decrees that are strictly canonical are distinguished from those that do not have the meaning of canons. Decrees of the Synod of 1787 and 1810 (Nev. I, 202) and unpublished decrees of the Synod of 1837 Dec. April 31 and 1841 14 serves as the main guide on this subject. By virtue of these decrees, the unconditional prohibition extends to the 4th degree of kinship and two-parent property according to the canon; in the tripartite property, the Synod leaves one first degree absolutely prohibited; in spiritual kinship, marriage is prohibited for the recipient with the mother of the recipient and the recipient herself, and for the successor with the father of the recipient or the recipient himself. However, it does not follow from this that all further prohibitions named in the Helmsman should be considered unconditionally lifted. They should not only be considered an absolute obstacle, and in the degrees prohibited by the Helmsman, special permission from the diocesan authorities is always required. According to the statutes of the Evangelical Lutheran Church in Russia, the relationship of a stepfather with a stepdaughter, a stepmother with a stepson, a son-in-law with a mother-in-law, a daughter-in-law with a father-in-law, a nephew with an aunt, by father or mother is considered a prohibited relationship and property; but marriage for an uncle with a niece and a nephew with the widow of his own uncle is permitted with the permission of the main consistory. The marriage of adopted children with their adoptees is not permitted, and the consent of the guardianship is required for the marriage of a guardian and his children with a person under guardianship (Const. In. Isp. 206 et seq.). The Synod's practice in calculating the degrees of a two-gender property was subject to significant fluctuations. Their beginning is the definition of the Synod of 1779: “husband and wife do not constitute a degree, but this applies to themselves and those descending from them; As for secondary persons, then husband and wife are placed with them in different degrees.” On this basis, the forbidden 4th degree of the property could be converted into the 5th, permitted, and in this sense many private decisions of the Synod took place; but by his circular decree of 1885, the practice was returned to strictly canonical dogma. The second, third and fourth degrees of the tripartite property do not serve as an obstacle to marriage, but require a bishop's dispensation (Uk. Syn. 1859). As for spiritual kinship, in practice this subject is indicated by the Criminal Code. Syn. 1810, about the number of recipients and the circle of kinship: there must be one recipient, of the same sex as the person being baptized, therefore, the circle of spiritual kinship refers to only one person. For details on this subject, see Orthodox Interlocutor 1894 June, Art. Menshikov. § 6. The fourth condition is age. – Consequences of violating the age rule. – Fifth – physical ability for marriage. – Sixth – normal relationship between religions. – Diverse and mixed marriages in the West and here. – Marriages of Gentiles in Russia among themselves 4. On this subject, a dichotomy between church and civil law is revealed. According to Greco-Roman laws, the minimum age for marriage was required: for a man - a full 14 years, for a woman - a full 12. The Synod in 1774 (Nev. I, 168) interpreted this rule as follows: for a man 15, for a woman 13 years. Since 1730, our civil law has established the minimum age for a man as 18 years, and for a woman as 16 years. Diocesan bishops are authorized to resolve marriages, at their personal discretion, when one or the other party is no more than six months short of the established age (Zak. Gr., art. 3 and note). The law does not mention what the relative age of the bride and groom should be; however, in Poln. Collection Zach. There are decrees in which the disproportion of years is recognized as the reason for the invalidity of a marriage (Uk. Syn. Aug. 5, 1779; July 31, 1779. Instr. benevolent. 1806, art. 23). The Synodal decree of 1774 prohibited the marriages of underage grooms with older girls, which were the custom among peasants. The maximum age for marriage is 60 years according to church laws, 80 years according to civil laws (Zak. Gr., art. 4). Therefore, when people get married after 60 years of age, although this is not contrary to civil law, the permission of the bishop is required for the wedding. In Transcaucasia, the legal age for natural residents has been reduced to 15–13 years (Zak. Gr., art. 3). Among the Lutheran colonists of the Transcaucasian region, the legal age for men is 17, and for women 15 years (Const. In. Isp. 881, note; Est. Col. 145). In peasant life, marriages take place at an early age, since it is important to have a female worker in the house. Therefore, the requests of the peasants to the bishops for permission to early marriages are very numerous, and their resolution is associated with great difficulties for the petitioners due to the distance from the center of diocesan administration and the slowness of paper production. There are also many difficulties in determining the age of those entering into marriage when analyzing metric records, which are incomprehensible to the petitioners themselves, who are often illiterate. Consequences of violation. If it is discovered that the marriage took place before a certain church age of majority, then the married couple are separated. Then, when they reach full civil majority, they can, if they wish, continue the marriage, and their union is confirmed in the church according to the rites (Gr. Law. 37, paragraph 5, 39). Therefore, if it turns out that those who have reached the church age but have not yet reached the civil age of majority have entered into marriage, then they are not separated, and the consequence of the violation can only be a penalty from the persons who married. If a violation of church age is discovered already when those entering into marriage have reached full civil adulthood, should the spouses be separated in this case as well? Within the meaning of Art. 446 Zach. Gr. Court, it follows that no. The case of such a marriage can be started by one of the spouses who entered into marriage while a minor, and only before the onset of the period specified in Article 3. Zach. Gr. for marriages of full age and if there is no pregnancy. A marriage completed upon reaching 80 years of age is declared invalid (Law Gr. 37, clause 5). Cases of violations of this kind are subject to the department of spiritual authorities (Law. Court. Gr. 440, 446). In the West, the canonical rule about the minimum age is the same and, just as it was before in the Eastern Church, allows for dispensation. But the Protestant Church necessarily requires the age of 13 not only for men, but also for women, since confirmation is allowed no earlier than this age. The civil laws of different states define different ages for marriage. The least for a man and a woman in Austrian law (14 years); the largest is in Virtember. and some cantons of Switzerland: for both 25 years. 5. When entering into marriage, the ability to physically copulate is assumed. Our civil law does not mention this among the legal conditions of marriage; but according to the instructions of the dean of 1806, those who are mutilated and incapable of cohabitation are prohibited from marriage. The physical inability of one of the spouses to cohabitate in marriage gives the other the right to ask for a divorce (Gr. 45). Only the inability in this case must be natural, or begin before marriage, and such a claim can be initiated no earlier than 3 years after the marriage (48.49). From 440 Art. Zach. Court. Gr. it should be concluded that matters of this kind are subject to the department of spiritual authorities. 6. Obstacles to marriage may also depend on the religion of those entering into marriage. These obstacles relate to either unconditional differences in faith or relative differences in religions. If in an existing marriage between non-Christians one of the parties accepts Christianity, the marriage for this reason alone does not lose its validity: this was also the apostolic rule. But when, at the time of marriage itself, one side was Christian and the other was non-Christian law - in these cases, Greco-Roman law refused to recognize the marriage as correct and consistent with the Christian ideal of full communion. Greco-Roman law not only did not recognize the legal marriage of a Christian with a person of Jewish law, but threatened punishment for such a marriage. In the latest legislation, complete diversity of religions has not very long ago been excluded from the list of obstacles to marriage. French civil law does not pose this obstacle, but it appeared in Prussian, Austrian, and many other German legislations - until 1848. Mixed marriages, i.e. between persons of different Christian confessions, have always served as a reason for heated bickering between spiritual power and secular power in the West, for the Catholic Church has always prohibited Catholics from marrying persons of other confessions: these bickering served as one of the main reasons for the introduction of civil marriage in Catholic countries, for the Church stubbornly refused to bless such marriages and did not want to recognize them. When establishing political tolerance in Germany, at the Peace of Westphalia, it was decided that during marriages, neither one nor the other church should make demands that restrict freedom of conscience; but even then, the Catholic Church for a long time did not dare to deviate from the rule it had adopted to allow such marriages for Catholics only on the condition that the other side undertake to accept the Catholic faith. Only in 1741, Pope Benedict XIV abandoned this rule of the Catholic Church, but only regarding Protestants, and ordered the clergy, in case of mixed marriages with Protestants, to limit themselves to silent presence (assistentia passiva) without blessing. Nowadays, civil law everywhere freely allows mixed marriages, greatly facilitated by the introduction of a civil form of marriage; But in Catholic states, even from such marriages, the greatest difficulty arises on the issue of the religious education of children born from these marriages. According to the current Russian law, marriages of Russian subjects of the Orthodox and Roman Catholic confession with non-Christians, and Protestants with pagans are certainly prohibited (Gr. 85). Lutherans can marry Mohammedans and Jews, with the permission of the consistory and according to the Lutheran church rite, and the non-Christian party undertakes not to constrain the other spouse in the faith and in the religious education of future children. Polygamy in these marriages is not allowed (Law Gr. 85, 87; Establishment In. Isp. 210, 211). Marriages of Orthodox Christians with schismatics are allowed only with the latter joining the church (Law. Gr. 33). According to the church rules of the Orthodox Church, the marriage of an Orthodox person with a heretic was allowed only under the condition that the latter converts to Orthodoxy. Without this condition, the marriage is considered invalid: as decided by the 6th Ecumenical Council. The first permission for such marriages followed in 1721, in a decree of the Holy Synod, on the issue of marriages of foreigners, Swedish prisoners, and Russians in Siberia: such marriages are allowed, so that the husband undertakes not to incline his Orthodox wife to change her faith and that the children are raised in Orthodoxy. Subsequently, doubts that arose about mixed marriages were resolved, bypassing the law, by the Supreme Authority, and subsequent, after 1721, decrees on this subject were always issued on special occasions: in 1768 on the marriages of Polish dissidents, in 1812 for Finland, in 1819 for the Baltic provinces and in 1832 a general decree on marriages of Russians with foreign subjects. Marriages of Orthodox Christians with persons of other Christian denominations are allowed with special conditions regarding weddings and raising children (61–77). Marriages of all Christians of other faiths are freely celebrated among themselves. However, the general legal requirements from those entering into marriage remain in force; but the impediments arising from kinship are determined by the special rules of the church of each denomination (61-64). Mutual marriages among non-Christians and pagans are recognized as free; civil authorities and Christian spiritual government should not interfere with them (90). In general, the marriage of non-Christians is not destroyed either by the conversion of both spouses (even if there was a forbidden relationship between them), or by the husband’s acceptance of St. baptism, even if the wife remained unbaptized. The marriage remains valid even without confirmation by a wedding, as long as the cohabitation is monogamous. Only polygamy is not recognized in marriage by civil law, as soon as one of the spouses becomes a Christian. If one of the Mohammedan’s wives accepts baptism, then her marriage remains valid if the husband, who has not previously excommunicated his wife, agrees to recognize one as his wife and reject the others and undertakes not to constrain either his wife or future children who should be raised in it in the new faith. Otherwise, the marriage is dissolved. A newly baptized polygamist must choose one of his wives (or the wife of one of the husbands), and in this case the marriage is confirmed according to church rites. If the unbaptized wife does not want to be baptized, and the newly baptized husband does not want to live with her, then the marriage is dissolved. If one of the two Jewish spouses converts and the other wishes to live with him, the marriage remains valid, but otherwise it is dissolved. But if the marriage remains in force, the Jewish spouse must undertake not to hinder the converting party and future children in their faith (Articles 79–84 of the Law). § 7. Marriage. – The need for a definitive form of marriage. - Roman form. - Christian wedding. – German folk forms of marriage. – Uncertainty of the form of marriage and marriage court in the West. – A new look at marriage in the Lutheran Church. – Decree of the Council of Trent on the form of marriage. - Church marriage ceremony among Lutherans. - The beginning of the civil form of marriage in England. - Scottish marriages. – Civil marriage in France. – Adoption of this form in other states. – Civil form of marriage contract and engagement agreement. - Promise to marry. - Consummation of marriage. – Church and civil form of marriage. – Historical origin and meaning of civil marriage Of all human unions based on the action of personal will, marriage is the first and most important union. And therefore, for marriage, it is much more important and much more urgent than for any other union or other transaction, the need to confirm, certify its origin and event, to distinguish its separate being (individuality) from all similar ones by a certain sign. Hence the need for a definitive form for marriage. In the wild state, a sufficient sign of marriage is the cohabitation of a man and a woman, the actual state of possession and common household. But just as in the sphere of other relations the state of ownership, with some development of social life, turns out to be insufficient and loses its definition, as soon as the need for the legal consciousness of each state appears, so in the sphere of family relations the state of existing cohabitation turns out to be an insufficient sign of a marriage union, when rights begin to be combined with marriage, coming into consciousness and striving to establish themselves in permanence and continuity. When an individual has the urge to isolate himself in society with certain of his belongings and rights, and pass them on to his children, then in the mind a real, legal and open marriage is distinguished from a dull actual copulation and cohabitation, and at the same time a certain form of marriage is established. As the concept of the legality of marriage grows and develops and civil relations and rights associated with marriage become more complex, the form of marriage develops and becomes more complex. Its essential meaning is: to undoubtedly express the personal free will of the parties to enter into marriage; solemnly announce the marriage in front of society, determine the initial moment of legal marital cohabitation. Roman law, the first to establish the concept of a single legal marriage, also introduced the solemn form of its confarreatio. In this form, the religious sanctification of the marriage union (the presence of priests, the performance of sacrifices and auspices) was combined with a legal action - the transfer of family power over the wife (manus) to the husband. Subsequently, the religious consecration of marriage gave way to a civil form, in which the distinctive actions were: betrothal in front of witnesses, the appointment of a marriage gift and the solemn taking of the bride to the house of the groom, deductio in domum (an action that had a distinctive meaning among the ancient Jews and still retains a distinctive meaning among the modern ones). All these external actions served only as formal signs and expressions of the completed and conscious agreement of the parties: this agreement belonged to the initial creative force in marriage (solus consensus facit nuptias). The same concept of mutual agreement as the basis of marriage between the parties remained unchanged in the Christian Church, but the church introduced the concept of sacrament into marriage. Dignity requires the worthy, the sacrament requires preparation for the sacrament: the church introduced special moral principles into marriage, which paganism did not exhibit in its ideal; Recognizing the indissolubility of the marriage union, the church surrounded it with conditions of purity and dignity and, blessing the marriage with its rite, combined the rite with certification of the presence of the required conditions. From these needs little by little new forms arose: announcements before marriage, church betrothals and weddings; and in secular legislation (in the 6th century) a written form of agreement on dowry and donation in case of marriage was established. Meanwhile, among the new Germanic peoples, unique forms of marriage independently arose from the same need. In the German family, a woman was considered (albeit in a different sense than in the Roman) the property of the family, and was under a protective authority (mundium). This power in all its material and moral significance had to be transferred to the husband when given in marriage, and according to custom, it was not transferred for nothing. Hence the bride price, an action considered so significant that among some tribes, for a penalty in the price, the wife could be returned to the family. This ransom, which at first had real significance, later, with the softening of morals and under the influence of the church, remained only as a symbolic action (Scheinkauf), which the church attached to its rite (transfer of a coin during marriage), and even later the custom of a marriage gift (dotalitium, Morgengabe) from a husband to his wife for her future security degenerated from it. The ceremonial handing over of the bride in front of witnesses or in a public meeting, taking her to the house and to bed, certification of marital copulation - these are other signs that certified the conclusion of a marriage. But in any case, mutual consent was recognized as the basis of a marriage union, for the confirmation of which specially selected witnesses were used (Fürsprecher, oratores). In this concept, the popular consciousness converged with the church, and although, after the introduction of Christianity, the church everywhere in Western Europe introduced its own rite of marriage blessing, the necessity of which the church insisted on, but the priest at the conclusion of the marriage was a witness to the union, and not a necessary instrument of the marriage action, and the validity of the marriage nowhere unconditionally depended on the fulfillment of the church rite. A marriage was considered valid as long as there was consent, certified by an undoubted sign (signis, nutibus, scriptis) and subsequent cohabitation. However, church blessing began to become a custom everywhere more and more, and in the 15th century it was considered a general rule among the educated classes, for whom certification of marriage and the rights associated with it was of primary importance. This is natural, because during the Middle Ages the church was the only institution in which private individuals could find possible publicity and reliable assistance in authenticating and approving for the future such an important act of civil life. State power, at that time itself scattered and disorderly, had not yet created strong and permanent institutions for this need. However, in the 16th century, marriage forms were not clarified with complete certainty, but became more and more confused; Confusion and controversy arose whenever the question of the validity of marriages arose. On the one hand, in the ecclesiastical and theological spheres, endless and insoluble disputes arose about the essence of the marriage union and the meaning of the forms associated with it, about the celebration of the sacrament of marriage, about the power of betrothal (sponsalia de praesenti et de futuro), about expressions of will, etc. The church itself had not yet developed for itself a definitively solid doctrine on marriage; there were still no strict, firm, definitive and obligatory forms of marriage, and therefore, whenever it was necessary to decide the question of whether a marriage concluded under certain conditions was consummated, it was necessary to enter into a study of whether the will in this case was determined irrevocably and decisively, what meaning should be given to this or that action, whether it retains its significance under subsequent actions, etc. General questions arose about the will, about the matter and form of the sacrament, and were resolved in one sense or another. The scholastic methods of theological dialectics of that time, of course, could not contribute to a decisive clarification of all perplexities and disputes. On the other hand, as state power gathered its strength, the state significance of questions about marriage and its forms became more clearly revealed. Marriage matters were subject to the church court, and the state authorities often came into conflict with it on issues related to marriage, among which the most important for the state and the most irritating effect on the relations between the church and the state were the question of the validity and consequences of secret marriages concluded without the consent of the parents, and another question of mixed marriages, which gained particular importance with the emergence and recognition of new religions. Moreover, the church courts were filled with ignorant and pretentious judges, who often exceeded their authority, touching on subjects that the state brought under its jurisdiction; the processes dragged on for a long time, and their final decision depended on the papal power, whose intervention seemed to the state authorities to be incompatible with the power of the state. The church reform, having proclaimed the separation of the state from the church and the complete autonomy of state power, sought to extend it to marriage matters. Marriage itself, according to the Protestant idea, seemed, although a divinely established holy union, but standing outside of church jurisdiction. “Marriage, according to Luther, is an external secular matter, like dress, like food, like home and court, subordinate to secular power.” In such circumstances, one of the most important tasks of the Council of Trent, which met in 1542, was to establish church law and church forms of marriage. After lengthy and heated debates, a conciliar decree was finally adopted, which to this day serves as the basis for marriage law in the Catholic Church. The council solemnly confirmed the previous church rule that one mutual agreement of the parties constitutes the basis of marriage, but in order to avoid misunderstandings arising from secret, unannounced marriages, it decreed the following rules: “before the conclusion, there must be a announcement (bannus nuptialis, proclamatio, professio matrimonialis in ecclesia) for three consecutive Sundays or holidays. After the announcement has been made, if there are no legal obstacles, let the marriage begin (ab celebrandum), and the parish priest (parochus), having questioned the bride and groom and having understood their mutual consent, must say: I unite you in marriage in the Name of the Father and the Son and the Holy Spirit, or may use other words, according to the custom accepted in each country. And whoever attempts to enter into marriage not in the presence of a parish or another priest authorized by that parish priest (vel alio de ipsius parochi seu ordinarii licentia), and two or three witnesses, otherwise, the sacred assembly declares them absolutely incapable of such entry (ad sic contrahendum) and declares this kind of copulation (contractus) invalid and insignificant” 4. This rule of the Council of Trent was necessary and beneficial, for until then there was no firm rule in the law; but one cannot help but notice that there is an obvious internal contradiction in it, which was not slow to reveal itself. In this decree, the Church, on the one hand, confirms that the essence of marriage and the matter of the sacrament consist exclusively in a mutual agreement of will, and on the other hand, insists in marriage on the presence of a priest and makes the validity of the marriage dependent on this priest, but at the same time does not oblige the priest to perform a sacred act that has any final force, does not even require that his blessing, as a priest, be combined in one act with the agreement and vows of the spouses, but assigns him the place of only an assisting or even an inactive witness. The resolutions of the Council of Trent were adopted and published in many not only Romanesque, but also German states; However, at that time, regardless of the authority of the Catholic Church, a movement in secular legislation had already begun, with the goal of establishing independent rules and forms of marriage. This movement took place in other places under the influence of the new Protestant principle of church, state and personal autonomy, in other places under the influence of the struggle between church and state. In the 18th century, a third figure appeared - the spirit of new principles of enlightenment, put into circulation by philosophers, and from the combined action of all these figures, new laws and a new form of marriage arose. In Protestant states, under the influence of state power, their own legislation on marriage was formed, in accordance with the statutes of the evangelical teaching, and the rules on marriage were contained for the most part in the church statutes of the Evangelical Church, and the form of marriage was retained as before, ecclesiastical, and a church blessing was considered necessary for marriage. The court in marriage cases was concentrated until the 18th century in church consistories, from which, despite the recognition of marriage as a matter of secular power, marriage retained the significance of a sacrament in the popular consciousness. Thus, the German states of continental Europe, having renounced Catholic church authority, still retained the church form of marriage and did not themselves create a new form, civil. The first beginnings of a civil form of marriage appeared in England under Cromwell 5 . In 1653, a law was passed according to which marriages had to be registered, with a formal announcement within three weeks, at the civil registrar, and then, with a certificate taken from him, finally performed, in front of witnesses, at the local magistrate. But this law was soon repealed, with the abolition of the republican government, and the previous marriage ceremony was restored in a church rite, which was recognized as mandatory in England, with preliminary announcement and with a note in the church registers established in the 16th century. Only authorized priests, according to parishes, were recognized as capable of performing the ceremony and recording; but for violation of the rules, only fines were imposed, and the validity of the marriage was not related to the defining ceremony, for it relied solely on the mutual agreement of the parties. The absence of a definitive form led in England, just as, if not more than on the mainland, to extreme disorder in marriages. Fugitive and homeless priests in London prisons and hotels for almost a whole century made a living by performing silent marriages (Flee marriages etc.) without observing the necessary conditions, without publicity and formalities, with a disorderly note in the registers they each held, which constituted their income item. Hundreds and thousands of secret marriages were performed in England without a declaration, and the law had no means of recognizing them as invalid until 1753, in which a new law was passed on the marriage form, still connected to the church rite and the church note. But this law established so many burdensome formalities that public opinion rebelled against it, and in 1824 it was replaced by a new one, which, in turn, turned out to be insufficient. The church form of marriage, in itself unsatisfactorily definitive, turned out to be embarrassing for dissidents who did not recognize the dominant church; but the repeatedly renewed debate about the need to establish a new, convenient for dissidents and free civil form of marriage for everyone led the legislature to a final decision not before 1837, in which the law on marriages, which is still in force in England, was finally passed. The adoption of this law was prepared by the charter issued in 1836 on a uniform procedure for entering all births, deaths and marriages into public registers with civil registrars. Then, the following year, a new law on marriages was passed. Upon completion of the preliminary formalities of the announcement, to certify the capacity and known residence of those entering into marriage, the marriage can be celebrated - either in one of the parish churches of the dominant religion, or in a chapel that has a license to perform marriages, or in a house of worship of any denomination, in the presence of a registrar and witnesses, or - what is especially important - can be celebrated, at the request of the parties, without church rites, in the office of the civil registrar in the presence of witnesses and with open doors, at the appointed time, with a note of publicly expressed mutual agreement. Thus, a definitive form of civil marriage was established in England, arbitrary for those who wish, but not obligatory for the parties 6 . In France, the decrees of the Council of Trent on marriage were not officially adopted and published by the government. The church form of marriage remained in force, but the state authorities, especially concerned about preventing secret marriages, stubbornly retained the right to decide, regardless of the church, the rules and form of the marriage union, and established them in disagreement with the conciliar decree. Thus, in 1579, by royal order (Ordonnance de Blois), priests were required to actively participate in the marriage, with verification of the personal abilities of the parties, and the marriage was ordered to be performed with four witnesses. Beginning in the 16th century, the government established civil officials to keep records of births, deaths, and marriages and placed church marriage records under the control of these officials. This decree had already prepared the subsequent establishment of a civil form of marriage, first adopted under Louis XVI (1787), for Protestant marriages. Protestants are allowed, if they do not want to perform the catechumen and marriage with a Catholic priest, to perform both with a civil official with a note in the book. Meanwhile, in French literature and in judicial and parliamentary practice, discussions about the dual nature of marriage did not stop. The Church did not agree to separate the mutual agreement of the parties from the sacrament in marriage; the new theory separated one from the other, asserting that the church indisputably possesses the power to administer the sacrament by ecclesiastical action, but the state equally indisputably has control over the contract. The business of the church is to establish the rites and rules of the sacrament; The state has the full right to establish the forms and accessories of the contract and the conditions of its validity. In the revolutionary era, this theory was expressed positively in the constitution of 1791; here it was decided: “before the law, marriage is represented only as a civil contract,” and it was left to the legislative power to establish for all citizens, without distinction, a general form of certification of marriages through designated officials. Based on this, in the following 1792, the law on the certification of the rights of estate was approved by the national assembly and came into force, which included a new form of civil marriage. The main principles of the new law were retained in full force by the state and when concluding a concordat with the pope in 1801, and then when publishing the civil code in 1803, the rules on marriage were finally adopted, which are still in force in France. These rules are quite complex and difficult. The marriage must be preceded by a double announcement of the names, rank, place of residence, age and parents of the bride and groom. This announcement is made within 8 days on 2 holidays at the door of the mayor's office (mairie), and is recorded in a book with the exact date and hour and with the display of a public announcement. It is performed at the place of residence of the bride and groom, or their parents, if they themselves are minors. The marriage takes place no earlier than three days after the second announcement (which may be omitted to extremes, for important reasons, with the special permission of the government); but if within a year after the announcement the marriage does not take place, the announcement must be repeated. Between the announcement and the marriage, objections to the marriage (oppositions) may be presented by persons entitled to the marriage, and in this case the marriage is postponed until the objection is resolved by a court verdict, which must be rendered no later than 10 days (mainlevée). The marriage itself takes place through a civil official (officier de l'état civil - which is usually the mayor or his assistant), in the mayor's chamber with open doors, publicly and in the presence of four specially selected witnesses. The ceremony consists of the mayor reading the contents of the acts certifying the legality of the marriage and the articles of the civil law on the duties of husband and wife, then asking the bride and groom about their mutual consent to the marriage, solemnly announcing to them that the marriage has taken place, and drawing up a formal act to that effect. These are the accessories and rites of the legal form of marriage in France. Not all of them are equally considered essential, and in the opinion of most French jurists, failure to comply with one or another formality constitutes only an irregularity and a violation of the law, but does not destroy the validity of the marriage. In the whole ceremony, only one thing is essential in an unconditional sense - the participation in the marriage of a civil official, who certifies the consent of the parties and declares the marriage completed. This civil form of marriage alone is considered obligatory in France for those who are legally united by marriage; The religious consecration of marriage by church rite is left to the will of everyone. But the church marriage ceremony is also prohibited, under strict penalties, from being performed otherwise than upon certification that the civil marriage was legally performed (in this respect only the rule of the Italian Civil Code, Art. 94 et seq., differs from the French one). Thus, church marriage appears in France as an arbitrary addition to civil marriage; however, the respect for church rites and the consciousness of the sacrament in marriage is so great that only a small proportion of marriages take place in one civil form without a church rite 7 . The form of civil marriage is now accepted in many European countries, mandatory, following the example of France, or optional, in case it is impossible to perform a marriage in a church ceremony. Thus, in Belgium, after long-term disputes and bickering, compulsory civil marriage was adopted in 1831; in most of the Rhine provinces, in Geneva, the French code system is maintained. In the Kingdom of Italy, despite the strong opposition of the Catholic clergy, compulsory civil marriage was established, with the entry into force of a new civil code, i.e. from January 1, 1866. In Spain, a form of civil marriage has also been introduced since 1869. In Germany, a compulsory form of civil marriage was adopted in principle by the Frankfurt parliament in 1848, but its introduction in local legislation encountered obstacles; however, in many German states an arbitrary, optional form of civil marriage was adopted. In Prussia, the law of the Zemstvo Code defines all the conditions for marriage, but at the same time it is recognized that marriage can only be accomplished through a church blessing; Thus, the state law, while establishing marriage conditions that were not entirely consistent with the requirements of the Evangelical Church, obliged church ministers to bless marriages even in conditions that did not agree with church discipline and the conscience of the celebrant. Hence, numerous clashes arose and continue to arise in Prussia between the secular government and the clergy. The church reform of marriage was so strictly preserved by Prussian legislation that for a long time it did not dare to make an exception from it even for dissidents. Only in 1847, by royal order, were they allowed to perform marriage formalities with civil officials, with the same requirement that church rites be performed in marriage according to the rite of each religion. Since 1848, a number of legislative attempts began in Prussia to establish a common civil form of marriage in case it was impossible to perform it in a church form; but none of these attempts succeeded until 1874, when the struggle that flared up in Prussia between the Catholic Church and the state forced the government to rush to introduce a legislative draft on civil marriage into the Chambers and insist on its adoption. The new law came into force on October 1, 1874. The civil form of marriage (i.e., its registration with the relevant official, after the announcement has been made and in compliance with the established procedure) is recognized as mandatory for everyone, and moreover, in such a way that its execution must in any case precede the church ceremony (left to the will of everyone). Therefore, on the same basis, on February 6, 1875 (Reichsgesetzblatt No. 4), a law was issued for all states of the North German Confederation. In Austria, under Joseph II (1783), marriage was declared a matter of civil law, and marriage matters were removed from the church department, although the church form of marriage was retained. These principles maintained state power in Austria until 1855, when, as a result of the concordat with Rome, the power of the statutes of the Council of Trent was restored, and marriage affairs were again transferred to the church department. This state of affairs continued in Austria, as we know, until 1868, when a decisive transformation followed. The concordat with Rome was broken, and a civil form of marriage was adopted for Austria, although not obligatory for everyone, but arbitrary for persons belonging to religions recognized by the state. For persons not belonging to any of the recognized religions, a compulsory form of civil marriage was introduced by law in 1870. The government intends to make this rule general and apply to all marriages regardless. In Germany, civil marriage is compulsory, which must precede a church wedding; clergy of all confessions, for performing a church marriage before a civil one, are subject to a significant fine. This is already the beginning of clashes, because the civil regulations of the German law on the conditions of marriage do not agree with the marriage rules of church laws, and it may happen that the marriage of foreign subjects in Germany, valid under civil law, will turn out to be invalid under the church law of the state of which the spouses are subjects, sometimes (like Russia) which does not recognize any other form of marriage other than church. Spain has also introduced compulsory marriage, but there is no strict rule that it must precede a church wedding. And it often happens that spouses are content with just a church wedding: in this case, their marriage with all its consequences is invalid in the civil sense. This uncertainty in many cases gives rise to the unauthorized dissolution of church marriages and to the abandonment by one of the spouses of the other spouse and an entire family with impunity. Among the states belonging to the Orthodox faith, civil marriage exists only in the Romanian kingdom (Moldova and Wallachia), where in 1864, at the insistence of the Moldavian ruler Prince Cuza, who sought to introduce French customs everywhere against the wishes and morals of the people, the provisions of the French code on marriage were adopted into law. The marriage contract, in all its importance, is associated with a strict form and is placed within narrow limits, so that it cannot be connected with a period, with conditions, with the meaning of any particular purpose. However, with regard to marriage, the prenuptial agreement is accompanied by property conditions, row entries (Ehepacten, Ehestiftungen), or it is preceded by a preliminary marriage agreement or an agreement (Verlobniss, Ehegelobhiss, sponsalia de futuro). In the Middle Ages, a contract of this kind could have the meaning of an informal marriage contract (sponsalia de praesen-ti), so that subsequent cohabitation gave it the actual force of marriage. Handwriting has not been used in such force for a long time, and the Western Church has not recognized such a decisive significance for betrothal since the 16th century. However, an agreement of this kind is still in use in Germany, especially in Prussia and Saxony: in the civil law of both states there are detailed rules for this institution (Allg. Ldr. II, 1, § 93. 94. Brg. Gesetzb. 1568. See article on this in Arch. Civ. Pr. 1851). This agreement has full force only formally, with appearance in court and in the presence of witnesses. It requires some conditions necessary for marriage (age, parental consent); but in case of non-performance, the contract has no enforceable effect on the marriage, giving only the right to an action for damages, for the return of gifts, etc. on the guilty side; but refusal to comply is justified by the same reasons that serve as a legal obstacle to marriage or could serve as a reason for divorce. However, if children are born to those betrothed in this way, then they are considered legitimate. Having become engaged to one person, one cannot become engaged to another as long as the contract remains in force. However, according to Prussian law, and in an informal agreement, if a seducer, having promised to marry a girl, made her pregnant and then refuses to marry her, then this girl has the right to use the name and title of the seducer, as if she had been divorced from him in marriage through his fault, and not through her own. French law does not at all recognize betrothal contracts in the same way as Italian law; but if the promise to marry was made in writing, then, according to Italian law, the violator is obliged to compensate for damages if a claim for them is brought within a year. Note. The first Christian views on marriage are expressed in the writings of the church fathers of the first centuries, regarding polemics with heretical writers about the nature of marriage. At that time the same extreme teachings on marriage arose and spread, which are renewed with renewed vigor and in a new form in our time. Among the Gnostic sects, some preached the unlimited freedom of marriage, others - its decisive denial. The advocates of freedom argued that one can free oneself from slavery to nature and its impulses only by achieving complete indifference to them (indifterentia), and indifference can be achieved and physical impulses can be killed only through unlimited freedom in satisfying them; in practice, the adherents of this freedom suppressed not physical impulses, but conscience. Others, followers of the communist Harpocrates and his son Epiphanes, taught that the truth of God consists in indifferent communication and equality, since God laid everything down in general, without distinguishing between men and women. So, the intercourse of the sexes should be in complete freedom; there is truth in this, and untruth and evil in the law, which, constraining this freedom, is powerless against it, but produces only lies in relationships, producing the concept of sin and encouraging the violation of the law. On the other hand, the Marcionites taught that the world of matter is evil, created by an evil spirit, and that it is a sin to work for this evil matter and populate it with new people; from here it was concluded that marriage is evil and that it is everyone’s duty to abstain from it. In polemics against such teachings, Christian writers (Tertullian, Clement Alex., Justin, Ignatius) clarified the natural and Christian idea of ​​marriage, its purpose, purity and indissolubility. They taught that marriage corresponds to the fundamental need not only of the body, but also of the spirit - to bring oneself into unity by the union of male and female natures, that marriage is once and for all sanctified by the initial blessing of God to the first couple (Tert.: “Ad initium revocatur matrimonii individuitas”); that this holiness - after the Fall - was restored by Christ in the meaning of a sacrament, with the assignment of special grace (charisma) to marriage. While recognizing that the basis of communication in marriage is mutual consent, the church fathers stipulated, however, that marriage is not based on this private agreement, and that love cannot be the subject of a contract. The power of the contract, as Clement Alexander says, takes place where the word: grow and multiply - refers to property and earthly goods, but is insufficient in such a subject where marital happiness is not based on the measure of the law and not on the measure of beauty, but on the measure of virtue. The same writings of the first church fathers testify beyond doubt that from the very beginning, marriage required a church blessing, in an established rite. Although the original form of this rite has not reached us, it is clear that the spouses were united (literally, passed on to each other, like sacrificial bread, in Tertul. sic dabunt viros et uxores quomodo bucellas) by bishops and presbyters; that the celebration of marriage was usually combined with the celebration of the Eucharist (this is indicated by the words of Tertullian: felicitas matrimonii, quod ecclesia conciliat et confirmat oblatio et obsiqnat benedictio, angeli renunciant, pater rato habet. See about this: Probst. Sakramente und Sakramentalien in den drei ersten Jahrhunderten. Tübingen. 1872). Along with this concept of marriage, rooted in the church, there was, in a legal sense, the provision of Roman law that marriage is accomplished by agreement of the parties (consensus facit nuptias); and to prove a legally completed marriage, under Justinian, in 538, the form of a written marriage act was established, with an announcement before the official Defensor ecclesiae, and three or four clergy; but already 4 years after that, this decree was canceled, and it was still announced that marriage was certified simply, sola affectione (Cod. V, 4, 22; Nov. CXVII, 4). Finally, in the 9th century, for the Orthodox East, Emperor Leo issued a constitution (Const. LXXXIX) stating that the exclusive proof of marriage is the performance of a church wedding. This law constitutes the still continuously operating rule of our marriage law, in an even closer sense: i.e. A church wedding serves not only as proof, but also as the only form of legal marriage. In the West, on the contrary, there was no legal rule in such a strict and definitive sense. The Catholic Church itself has not yet worked it out for itself; It was not in secular legislation either. Both in Gratian's decree and in the decretories of Pope Gregory IX the old definition of Roman law is repeated: matrimonium solo consensu contrahitur. So, in the Catholic Church itself, the performance of a church rite apparently did not have a decisive significance until a certain form of church marriage was established at the Council of Trent. § 8. Church form of marriage in Russia. – The meaning of the betrothal agreement. – Wedding and preliminary formalities. - Announcement and search. – Metric records. – Evidence of marriage and marital status. – Dispute about the illegitimacy of marriage According to our laws, marriage is a sacrament and is performed no other way than through church betrothal and wedding, in which the participation of a clergyman, not silent, but active, is essential both for the verification of civil action and for the performance of the sacrament. In our country, the civil action in marriage is fused and inseparable with the sacrament, and the priest in the celebration of marriage acts at the same time both as a minister of the church and as an executor of civil law. Regardless of this church form, our law knows no other. Church betrothal, according to Greco-Roman law, took place independently of the wedding; before it, and in addition to church betrothal, civil betrothal or marriage contract was allowed, with which was connected the obligation to once enter into marriage. This agreement was concluded on behalf of the minors by the parents, and was secured by a penalty or a deposit. This form of contract came to us from the Greeks, and was very common in our social life. Records were written with charges or penalties for violation of the contract and for refusal of marriage. Cases of violation of such agreements were numerous and within the jurisdiction of the church authorities (Koshih. XIII, 3.4). Peter I, to protect freedom of marriage, banned such records in 1702; Instead, it was ordered to write rows and dowry paintings without a penalty. Thus, the agreement preceding marriage received in our country the character of an action, although solemn, but not formal and not having formal binding force 8. By decree of Peter, after the agreement, 6 weeks before marriage, it was ordered to perform a church betrothal. Thus, the conspiracy was sanctified by a church blessing; but this still did not assign unconditionally binding force to the agreement, and after the betrothal, the bride and groom are free to separate. But this civil decree contradicted the church canon of the 6th Ecumenical Council, according to which church betrothal should be as inviolable as marriage, and therefore, in order to avoid temptation, the Synod in 1775 ordered that church betrothal be performed at the same time as marriage (Nev. I, 225). This is how it is done with us today. A) In current judicial practice, a promise to marry has no legal meaning, i.e. binding and interfering force. But we see from the old practice of the 17th century that before it was given such importance: when before the marriage or during the marriage a statement was made that the groom had promised to marry another bride, or a similar complaint was brought by her to the diocesan authorities, they intervened in the matter. The consistory interrogated the groom, carried out an inquiry, examined the evidence, and in case of evidence, the diocesan authorities prohibited the wedding of a new marriage, notifying all the churches of the diocese. See Rozanova. History of the Moscow Diocesan Administration. According to our law, a contractual marriage agreement is free until the very moment of marriage and cannot be connected with any conditions or obligations that directly or indirectly bind the will of the parties: all such conditions and obligations are invalid. This conclusion from our law is correct; but does it follow from this that one or the other party who refuses the marriage after a preliminary agreement on it cannot in any case be subject to any liability to the other party for the consequences of his refusal? It hardly follows. Obligations arise either from a preliminary contractual agreement (obligations under contracts), or from an action for the consequences of which everyone is responsible, insofar as this action violates property rights or causes a loss. If they seek satisfaction for failure to fulfill a positive condition of marriage, for example. penalties for refusal of marriage, such is undoubtedly rejected. If they seek compensation for refusal of marriage, or for the dishonor caused by such refusal, or satisfaction for the benefits that the party was counting on from the marriage, such a claim cannot be recognized, because refusal of marriage in itself does not constitute a violation of the contract. But when one of the parties, in the confidence of the upcoming marriage, made expenses, expenses and payments solely on the occasion of the marriage, and subsequently the marriage did not take place due to the refusal of the other party, then even in this case it is hardly possible to recognize the basis for the claim, and damage to the property of one party is attributed to the fault of the other party. There would be guilt when there was an illegal action, and since there is no legal action recognized in the refusal of marriage, there is no guilt entailing liability. For example, if the bride’s parents spent money on the bride’s dowry, there is no damage to be compensated, because it was up to them to make or not to make a dowry in one size or another: the expectation of marriage was only probable; and the things remain with the bride. If they spent money on feasts and holidays, there is again no direct damage, because it was their will to spend money on food. But there may be cases of a completely different kind. On the part of the father-in-law or the bride - could be made in favor of the groom, or vice versa, gift expenses solely in view of the marriage, i.e. for the purpose of giving a gift to a person who has marriage or property with the donor. It would be unfair to deny in this case the legal opportunity for the donor to demand the return of the gift when it is proven that the donation was in anticipation of marriage. Rule 976 of Art. should also be applied to this case. Zach. Gr. For example, if the father-in-law gave the groom a sum of money, made him a gift or paid a debt for him, and it is proven that this gift was made precisely for the sake of the expected marriage, then there is no doubt that what was spent and spent can be returned. The basis for this will not be the fault of the refusing party, but simply the failure to fulfill the condition under which the donation was made, even if due to a random reason independent of the will of the parties, for example. when a marriage breaks down due to illness or death. In decision 1870 N 403, the Senate (Cass.) recognized that refusal of a word given by couples or their parents cannot be recognized as an act subjecting them to any liability defined in Art. 684. 1 part X t., and that the person who committed the refusal can be held accountable only when deliberate deception is discovered in his act, and in this case the illegal act, and not the refusal to marry, is prosecuted. Wed. decide 1872, 1015. Polubin, before getting married, gave his bride the following receipt: I received 2400 rubles from so-and-so because I am getting married to her, but if the marriage between us does not take place, then I must return the money to her. The marriage did not take place, and the former bride collected this money from her former groom. The defendant refused to pay, giving the condition the appearance of a penalty in case of marriage. But this objection was rejected by the Senate (Dec. 8, 1868). A promise to marry, even if expressed in writing, does not, according to our laws, have binding force in relation to marriage, although it may, under some circumstances, serve as a basis for a civil claim for compensation. Nor can it serve as an obstacle to marriage with another woman. But if it was actually combined with seduction, then it is punishable by a criminal court under Art. 1531. Corner. Lay down b) In Rus', the beginning of the legal form of marriage is connected with the adoption of Christianity and with the beginning of church organization. Until then, no definite form of marriage appears to exist; only informal signs of a completed marriage are visible in the ordinary actions that took place during the marriage. This was, in all likelihood, how the bride was brought to the groom; in the monuments there are traces of ransom or payment for the bride, etc. There is no doubt that the rule of the ecclesiastical form of marriage, brought to us by the Eastern Orthodox Church, remained for a long time a dead letter for the mass of the population, who continued to enter into marriages in a wild, formless form. Only little by little, over the course of centuries, the church instilled and assimilated to the people a religious consciousness about marriage and church rites, however, in sparsely populated areas and at a distance from parishes, not only were there in the past, but even now, judging by reliable evidence, there are cases of unannounced marriages by simple agreement and cohabitation, which, if only convenient, is sealed by a church rite or remains without a wedding at all. The simplicity of life and relationships in rural life and the absence of a legal need to affirm marriage rights, which do not always have tangible significance for the peasant as long as he does not leave the close circle of rural relations, are the reasons why even today in some remote areas we can still get by with cohabitation instead of legal marriage. Moreover, with the advent of the schism, it turned out and turns out to be a lot of people for whom the legal form of marriage, belonging to the church they denied, was not at all available, and among the schismatics, unofficial, formless, or so-called free marriages actually became a custom. In peasant life, a marriage contract is very common (in writing, or most often in words, with a handshake). Its subject is the interests of the contracting parties in terms of property. Its main conditions are: about wedding expenses, about treasure or payment from the groom (see § 4), about dowry, about gifts (which sometimes have the value of collateral), finally about deposits and penalties for violation of the contract. Often, from these conditions, if they are violated, mutual claims for damages and for the return of what was taken arise, accepted and decided by the volost court, which has the right to decide peasant cases according to custom. So, by the wedding, and by the wedding alone, the marriage union is completed and enters into full ecclesiastical and civil force. But before the wedding, the civil law also commands that, through the church, certain necessary actions be performed, with the purpose of both announcing the upcoming marriage and making sure that there are no obstacles to its consummation. In earlier times (at least since the 16th century), a wedding required a special decree from the bishop addressed to the priest who would officiate the marriage (usually the priest of the groom's parish). It was called a coronal memory, and the payment of duties was associated with its issuance. The goal was, on the one hand, financial, and on the other hand, monitoring the fulfillment of all the conditions of marriage according to church laws. The priest was obliged, before the marriage, to find out whether there were any legal obstacles to the marriage. The collection of coronal memorials and their issuance ceased in 1765. Since then, the following rules have been established. Anyone wishing to get married must (three weeks, and in any case no later than a week before the wedding) notify the priest of his parish about the name and title of himself and his bride (Law. Gr. 25). At the same time, documents are usually presented that the priest, according to the instructions of the spiritual authorities, is obliged to require, such as: proof of rank (passport, etc.), metric certificate, permission from the authorities, certificate of attendance at confession and holy communion. This is followed by an announcement in the parish church of the bride and groom on three feast days or an announcement in the parish church of both the bride and groom about the intended marriage, so that anyone who knows about any obstacle to the marriage announces it to the priest no later than the last announcement. Our law does not, like the French, limit those who have the right to declare obstacles to marriage; therefore, one must think that this right is granted to every outsider. The discussion of statements and the elimination of them depend on the diocesan authorities, or, in important cases, on the Synod (Art. 29). The preparatory force of the announcement lasts, according to church rule, 2 months; If the marriage is not consummated within this period, the announcement must be renewed. Along with the announcement, the priest conducts a search. This was the name of the original local research through reliable witnesses about the non-existence of obstacles to marriage. Nowadays, during a search, the priest is convinced by examining the required documents (for example, a metric certificate, a decree of resignation, etc.) that there are no obstacles to marriage. The formal expression of the search is the so-called search book (church book), in which witnesses (at least two) on the part of the bride and groom (poezzhane) certify with their signatures that there are no legal obstacles; in addition, the documents submitted for marriage are indicated. The last final act in marriage is the wedding. It consists of performing a rite according to the rites by which the sacrament of marriage is performed. The ceremony is performed by a parish priest, and not a monk at that. The wedding takes place in the personal presence of the parties. Our law does not allow representatives during marriage. And in general, European legislation requires personal presence. Only Austrian legislation allows, in necessary cases, representation, with the special permission of the government, with clear authority (Allg. b. Ges. 76). The wedding takes place in a church, and not in a chapel and not at home, moreover, mainly in the parish of the groom (Spiritual reg. instrument. Blag. 23); and if in someone else's parish, then the agreement of the priest of the appropriate parish is required. The wedding takes place in the afternoon or evening, and not at night, on the days set by the church for weddings 9, in the presence of witnesses, and not secretly. Outside the church, Orthodox marriages are allowed only where, due to circumstances, a wedding in the church is impossible, and then with the blessing of the bishop (see Gr. Zak., art. 25-31 and appendix to art. 26). The rule about weddings in one's parish is of significant importance in connection with the announcement and search: it is assumed that in the parish both the clergy and the parishioners are closely aware of the circumstances relating to the identity of those entering into marriage. But the entire meaning of this rule disappears during the wedding of persons temporarily arriving from different places in a foreign city, especially in the capital, where many nonresidents are concentrated and where, as, for example, in St. Petersburg, parish isolation and parish connection are almost imperceptible. In this case, the observance of rules that are very essential for the prevention of illegal marriages becomes a mere formality, and opens the door to many abuses. Hence the unfortunate possibility of performing, under the guise of formalities, illegal marriages in foreign places or with regimental priests. After the wedding, the marriage is recorded in the metric register. This record constitutes the main evidence of the marriage. This evidence is supported and replaced by search books, confessional signatures, civil documents and investigations (Gr. Zak., 31, 34–36. IX. 1033–1046, 1088, 1094). Regarding civil marriage documents, it should be noted that some of them have a direct purpose - to signify the consummation of a marriage in order to prevent the conclusion of double marriages, and therefore, during a wedding, priests usually require the presentation of such documents to certify freedom from a previous marriage and to mark a new one. The main documents of this kind are passports, service records, certificates, resignation decrees. The service records of civil officials should indicate whether anyone is married, to whom he is married, and how much property and what kind the wife has. III. t. Est. sl. rights, 779. Requiring documents is essential to prevent illegal marriages. A metric certificate is needed to determine age and origin by kinship. It may be necessary to provide written consent from absent parents, guardians, or superiors. According to the Charter on Military Service (100, 163), in some cases a certificate of registration for the site is required. Passports are required, because they must indicate whether a person is single or married, and in what marriage, and on the presented passports it must be noted with a clergy, where, when and by whom the marriage took place. The passport must indicate that the former marriage was divorced and, moreover, with permission or prohibition to enter into a new one. One dismissal certificate, vacation ticket, etc. A document that does not have the formal meaning of a passport should not be crowned, so as not to fall into error or deception. In necessary cases, it is necessary to require a certificate of death of the former spouse. – The church form requires for Orthodox marriages a certificate that they have had confession and holy communion. In the part of Bessarabia that was ceded to us from Romania, according to the Berlin Treaty of 1878, marriages performed according to the civil laws in force there are recognized as legal only in the time before the promulgation of the opinion of the State. Sov. March 12, 1888 (Collected Laws No. 271), which granted those wishing to legitimize such marriages - to marry according to the rite of the Orthodox Church and in compliance with all the conditions established for the Empire. Marriages of other Christian denominations must be performed by the clergy, according to the rites of each denomination. Consequently, foreigners, subjects of a state in which civil marriage is legalized, must obey our law if they marry in Russia, and such a marriage must in any case be preceded by an announcement (cf. Constitution of John Confess. 228). Where there is no priest of the faith to which the person entering into marriage belongs, the wedding can be performed according to the Orthodox rite, but in this case the marriage is subject to all the rules and rituals of the Orthodox Church, both in terms of celebration and dissolution (Gr. 65). If one of the parties is non-Orthodox, then upon entering into marriage all the formalities of the Orthodox wedding ceremony, announcement, etc. are performed; such marriages are certainly married in the Orthodox Church with the taking away of a subscription to raise children in Orthodoxy, etc. (67). There is no exception for Catholics (72). This subscription is required even in such a case when a non-Orthodox groom - a foreign subject permanently living in Russia - marries an Orthodox woman in Russia; but if he stays abroad, and while temporarily in Russia for marriage, takes his wife with him under someone else’s law, then in these cases, with the HIGHEST permission, he is released from subscription. The wedding of Orthodox brides with foreign subjects living there, in Russian embassy churches, is allowed without taking away a subscription. In Finland, mixed marriages are celebrated in both churches (68). Mixed marriages in the provinces of the northwestern and southwestern regions are performed by a priest of the faith to which the bride belongs; and if he is a Catholic and refuses to perform the marriage, then the marriage can be performed by a priest of a different religion (Article 75). The issue of solemnizing mixed marriages between Orthodox Christians and Roman Catholics received special significance after the annexation of the provinces returned from Poland to Russia, since Latin priests often solemnized such marriages without communication with the Orthodox clergy and without taking away a signature on the baptism of children in Orthodoxy. As a result, in 832 (P.S.Z. N 5767) the Highest commanded: such marriages should not be considered valid until they are married by an Orthodox priest. This rule, in the form of a general law, is included in the Code of Civil Laws. (v. 74, subsequently 72). In 1846, a question arose about changing the wording of this article, but it was rejected due to the opinion expressed by Metropolitan. Philaret (Collected copies and reviews, vol. III, p. 197). Among his arguments is the consideration that a marriage solemnized by one Roman Catholic priest may not be suitable under the terms of the Greek-Russian church law. It would seem that in order to fulfill this law, it should have been made a rule that a Roman Catholic priest, under pain of punishment, should not bless such a marriage before it was celebrated in the Orthodox Church. But there is no such rule in the law, and the sanction of declaring a marriage invalid turns out to be not entirely valid in many cases. Catholic priests began to allow themselves, in many cases, to perform such marriages without communication with the Orthodox Church; but when, after many years of marriage, the question arises about the validity of such marriages, they must, according to the letter of the law, be declared void and the children born in them illegitimate, like children of adultery. It is impossible not to recognize such a decision as harsh, although it is fully consistent with the law, if we take into account that marriage in the Roman Catholic Church is considered a sacrament and is not performed secretly, but with publicity. When performing such marriages, the Orthodox priest, in order to carry out the announcement, must receive from the priest to whose parish the Roman Catholic party belongs, her pre-marital certificate about her extramarital status and legal capacity. Priests often avoided issuing such certificates and thus made it difficult for the marriage to take place. Therefore, in 1891, it was decided that the announcement of such marriages can be performed in one Orthodox church, and instead of a pre-nuptial certificate, a police certificate is allowed, on the basis of documents and testimony (Contd. 93 to 67 Art. Civil Law). For Catholics, metrical records are kept by church rectors, for Lutherans - by preachers; but Lutherans also keep parish lists, in which, among other things, circumstances related to marriage are noted, and a change of parish is allowed only with a certificate from the previous parish, in which the marital status is also recorded (IX vol., 1055, 1056, 1063, 1075. Est. In. Isp., 344). For records from the colonists, see Const. Col. 129. Among non-Christians, marriages are performed according to their law and custom, without the participation of civil authorities or Christian spiritual government. Among the Mohammedans, metric records are kept by mullahs, among Jews by rabbis and ghazans, who perform marriages (IX. 1077, 1080, Zak. Gr. 92. Establishment In. Isp. art. 1142, note, appendix according to Prod. 1890, I, art. 11; II, art. 11; 1086; adj. 1890, art. 25, 31. Voin. 1886. There are no special provisions in the Code of Laws regarding the registration of marriages among foreigners. For special rules on marriage between Lutherans in Russia, see the Ordinance. In. Spanish Art. 182–187, 199–245, 727–745. On marriage among Jews, see the same article. 1086, 1088, adj. according to Cont. 1890 to Art. 1097; among the Lamais 1264, 1283, 1284; among the Mohammedans 1144, 1211, 1230. Evidence of marriage. The main evidence is parish registers and extracts from them. When the marriage was not recorded in the registry register at all, or the metrical record is questioned, then in addition to or in replacement of this main evidence (cf. Cass. decision 1872 N 666) the following are accepted: 1) search books, 2) confessional signatures, 3) civil documents and 4) investigation. Regarding civil documents, the law does not determine which ones can be accepted as evidence, but requires that it be clear from them that the named or called spouses were recognized as such in public places and unquestionably enjoyed civil rights and benefits depending on legal marriage; therefore, such documents include, for example, certificates of class councils, passports, court decisions in which these persons are called spouses, etc. (cf. Cass. decisions of 1870 N 965, 1877 N 56). The investigation should include testimony: the clergyman who officiated the marriage, witnesses who were present during the marriage, and those generally aware of the authenticity of the marriage event. During the investigation, except for the clergy, the spouses themselves and their parents, all other persons are sworn under oath (34-36 articles of the Law. Gr. 1033-1053 art. IX vol.). Since 1874, proof of schismatic marriages has been their entry into the police register on the basis of the rules below placed in § 9. In addition, at the same time it was decided, for marriages of former times, that schismatics recorded in the tales of the tenth revision as husband and wife are recognized as legally married spouses, and their children shown in the revision are honored as their legitimate children, as long as the correctness the said testimony will not be refuted in court. However, even before the publication of this law, there were court decisions that recognized the legality of a marriage between schismatics, on the basis of the additional evidence mentioned in Article 35. Zach. Gr. In the Dikova case, such a decision of the Senate took place in 1865 (4 D-tas). According to the law, in order to recognize the legality of a birth before the court, it is necessary to prove: firstly, the validity and legality of the marriage; secondly, the birth itself from this marriage. In the present case, the Gruzinovs and Kolyubakin, within the meaning of Part X, Part 1, Art. 127, 129 and 130 (all three according to the 1857 edition) do not have the right to challenge the validity of Dikova’s birth from the marriage of Olympia Gruzinova with Ksenia Afanasyeva, but refute the legality of Dikova’s birth, proving the invalidity of her parent’s marriage itself. The validity of the marriage is proven by the procedure specified in Art. 34–36. According to Art. 35, if the marriage is not recorded in the parish registers, the event of the marriage can be proven by confessional signatures and civil documents. Evidence of this kind was presented by Dikova, but was disputed by her opponents as not supported by the certificate of the wedding of Dikova’s parents according to the rites of the Orthodox Church. But such an objection is decisively eliminated by the law issued on May 15, 1852. According to the meaning of this law, failure to perform the wedding ceremony in the holy church of schismatic parents should not serve as an obstacle to the recognition of the legitimacy of their children, if only these latter, after the death of their parents, turned to the holy faith. Bearing in mind: 1) that Maria Dikova, after the death of her parents, joined the unified faith from the schism; 2) that the existence of a marriage between her parents and her descent from it is confirmed by those specified in Art. With 35 pieces of evidence, the Senate determined: to leave the dispute against the legality of Dikova’s birth without consequences. All this evidence is intended to certify either the event of marriage, the legal beginning of marital cohabitation, or the marital state that existed and was recognized in social and family relations, marital cohabitation (possession d'êtat). The latter evidence becomes important especially in cases where, after the death of the spouses and in the absence of a reliable document about the event of the marriage, the legal existence of the marriage union is questioned and disputed, and as a result, the civil rights of persons descended from this union are refuted. These cases are increasingly encountered in cases of inheritance of family property, when applicants from different clans come to it. So, for example, in the case of inheritance after Peter of Hungary, Marya Sheveleva presented her rights, proving that the father of the deceased patrimonial owner, Alexey Grigoriev of Hungary, had a sister, Marya, who was married to Ivan Shevelev and had a legitimate son, Peter, from whose marriage with Obrezkova she was born, Marya Sheveleva. The marriage of the above-mentioned Marya with Shevelev was questioned, but from the documents presented it turned out: 1) that Alexey of Hungary recognized his sister Marya and in 1873 he himself showed her married to Shevelev; 2) Marya Sheveleva asked to be present. a place about strengthening her estate, bought by her husband’s brother; 3) that, according to the evidence of revision tales, Marya Sheveleva owned an immovable estate that she inherited from her father Gregory of Hungary; 4) that this estate, after her death, was in the possession of her son, Peter Shevelev, and after his death it was divided among his children, and no one denies the legality of this ownership, which began before 1745; 5) that according to the confessional paintings, Pyotr Shevelev was shown to be legally married to his daughter Maria. On this basis, the Senate recognized that Marya of Hungary, through her husband Shevelev, enjoyed civil rights that depended on marriage, and transferred these rights to her children (see Sat. Sen. Resolution, vol. 2. 1086). According to Art. 1340 Set. Citizen Court, after two years from the date of death of one of the spouses, the right to open a dispute (based on the illegality of the marriage) about the personal civil rights associated with the marriage of both the surviving spouse and the children born from that marriage is terminated. This rule is based on a law issued in 1850 (Mn. State Council. February 6, 1850), and before that time, within the meaning of Articles 49 and 50. X t. (ed. 1842), the right to open the said dispute ceased immediately upon the death of one of the illegitimate spouses, and therefore the new resolution applies to marriages completed before February 6, 1850, and to children born from these marriages. In addition, before the entry into force of the Regulation on the Order. (i.e., until May 1, 1846), according to which limitation does not apply to marriage matters (Article 162), the following law was in force: if no one refutes the legality of the marriage within 10 years, then after this period the dispute is not accepted (2237 Art. X Vol. Ed. 1842). § 9. Criticism of the civil form of marriage. – The question of introducing it into Russian legislation. – Marriages among schismatics and the question of the legality of these marriages The civil form of marriage appeared in the West as a result of the long-existing division between church and state there. The ecclesiastical form seemed sufficient until this division reached the point of obvious disagreement and the separation of one area from another was required. When the unity of the Catholic faith was disrupted by the emergence of new doctrines, the marriage form of the dominant church turned out to be insufficient, and necessity led to the establishment of a civil form of marriage for those persons who, according to their faith, could not perform the church rite. But even within the church, which was considered dominant in every state, clashes between the state and the church multiplied. In Protestantism, these clashes were resolved more conveniently, since here, in the main idea, church affairs and church structure were recognized as a matter of state. But the Catholic Church, constantly opposing the spiritual to the worldly and the church to the state, never putting aside the desire to rise above the state and the people, never ceased to include in its calling political goals separate from the state. It became necessary for the state to look for a way out of the continuous struggle with the church and to justify its political measures by the theory of the struggle for the separation of church and state. This theory necessarily had to touch upon marriage, regarding the continuous bickering about marriage between church and state. So, little by little, marriage, as an institution organically connected with the state, was taken by the state authorities under its exclusive jurisdiction, and the civil form of marriage appeared in the sense of a general obligatory, or permitted and arbitrary form. The Catholic Church cannot reconcile itself with compulsory civil marriage and recognizes it as nothing more than a fruit of unbelief and a product of revolution. This explanation is not justified by history, which reveals the first attempts to establish this form in the era of ecclesiastical rule, and much earlier than the revolutionary period. History reveals that civil marriage in the West was a necessary consequence of the long-standing hostile relationship between state and church. But only such a necessity justifies this institution. There the church hardly has the right to object to it, because it itself is guilty of it; but one cannot help but admit that this institution deeply contradicts the fundamental foundations of sound religious feeling among the people and itself contains an internal contradiction, similar to the historical relationship between church and state from which it arose. And therefore it is impossible to agree with the opinion of those who consider the establishment of civil marriage desirable and useful for such a people, whose history, fortunately, does not present a sad dichotomy between church and state. It would be unreasonable, without any necessity, to graft such an artificial institution into simple life; perhaps it would be immoral to graft into the people’s consciousness an alien idea about a division that they do not understand. Where the mass of the people belongs to a single religion, deeply merged with the nationality, where the people have not even heard of the political struggle between church and state, where there is no reason to desire and no reason to initiate the separation of one and the other, there it is impossible to think of anything better and more consistent with the sanctity of marriage and the practical needs of the life of the people, like the existing church form. Recently, questions have often been heard in society: why not introduce civil marriage in our country? Such a question, as far as one can see, arises mostly from a misunderstanding, and the misunderstanding stems from an ambiguity in the concept of the civil form of marriage. Many do not distinguish in their thoughts civil marriage from freedom of marriage and demand a civil form of marriage for Russia only because, in their opinion, where there is civil marriage, many now recognized obstacles to both entering into marriage and dissolving it must certainly be eliminated; there marriage becomes one of the general category of contracts that bind the will of the parties conditionally and temporarily. This opinion is unfounded in general, and especially unfounded when applied to our fatherland. Experience shows that even the civil form of marriage can be subject to extremely restrictive and complex conditions for marriage and dissolution, when the concept of marriage is not entirely based on a dogmatic and ecclesiastical basis. It is true that marriage is not considered a sacrament from the Protestant point of view: it is recognized as a holy, but a secular and civil matter. Is it possible to make such a demand and proclaim such a beginning among us, without renouncing the church to which we consider ourselves, without tempting or violating the popular belief in the authority of the ecumenical conciliar teaching? (Moreover, according to our church teaching, the sacrament of marriage is performed not in the same way as among Catholics - by agreement of the parties and the passive presence of a priest, but by a sacrament according to the rite of the church). Is it possible for us to transfer into civil law the conditions for the consummation and dissolution of marriage at the sole discretion of the legislator, without having to consult the statutes of the church and without repeating what is decreed in conciliar resolutions? If such a revolution is unthinkable in our country without renouncing the church, then what would the establishment of a compulsory civil form of marriage serve us for? Is it a temptation and a burden to the people? To temptation, because the people's conscience will not understand and will not accept the division between the state and the church in a matter that the church recognized as a sacrament. To the aggravation, because complex and strict formalities, inseparable from the civil form of marriage, will certainly turn into clerical formalities, and in the hands of officials, who are not always able to understand the meaning of the letter entrusted to them, will certainly become the source and pretext of all kinds of difficulties, delays and claims; finally, they will certainly be associated with duties and levies, about which those who now sometimes have to, in exceptional cases, grumble about the pretentiousness of the rural clergy in marriage matters have no idea. Let us imagine a marriage matter, removed from its natural environment, from the parish, and transferred to another official environment, for example, to a quarter, to a volost, to the district of a justice of the peace, etc. 10 It is obvious that in this circle, all the actions and formalities preceding the marriage will be combined with clerical work on the matter, which for the people will become incomparably more burdensome than the current explanations and negotiations with the church clergy, they will put paper and an office between the petitioner and the main performer of the ceremony, in which each of the minor officials will want to feed on his business. Anyone who knows our history and is familiar with the conditions of our people's life will, of course, agree that the existing church form of marriage is the only one in our country that is possible, and right, and corresponds to the beliefs and needs of the people; therefore, there is no need or reason to leave or change it. The practical need to deviate from it can only arise in cases where those entering into marriage belong to a religion not recognized by the state. Such cases may present themselves to us, and it remains to say a few words about them. It is known that we have a whole number of people who, although not belonging to the ranks of the Gentiles, do not belong to the Orthodox Church. These are our schismatics. The state did not recognize their correct church union and church structure, just as it recognizes both among Gentiles of different confessions; Consequently, in a schismatic, the quality of a citizen, in relation to the state, was completely and completely separated from the quality of a member of a certain church: in the face of the state, a schismatic appears to be a citizen only in those features that do not concern the church. Hence a strange anomaly arose: every state and action, the legal significance of which is in connection with church establishment, was deprived of this significance for the schismatic, because the law does not recognize its connection with the church. Thus, marriage among the schismatics was deprived of the meaning of a legal marriage if it was not consecrated by a wedding in an Orthodox or Edinoverie church; Civil laws on inheritance rights were not applied to children born from such unconsecrated marriages. Dissenter mentors are prohibited from issuing marriage certificates, and although schismatic wives are entered by the police into philistine books, it was not allowed to mention marriages. So, although, according to police testimony, the wives and children of the schismatics of the priestly sect were classified as families, but on this basis alone it was forbidden for public places to recognize wives and children as legitimate, without metric certificates; Meanwhile, schismatics were completely forbidden to keep metric books, and therefore, it was impossible to have metric certificates. Under such conditions, the family relations of the schismatics were presented as nothing more than a factual state that did not have legal firmness and certainty. Not to mention the disadvantage that this entailed for the schismatics themselves in civil life - such a state turned out to be extremely inconvenient for the state, because from the state point of view it is impossible to allow such a significant number of citizens to remain outside the law in all their family relations. In this state of lawlessness there was an internal contradiction, which sooner or later had to be resolved in law. As soon as a marriage is consummated by mutual consent of the parties, with the consciousness of the holiness, permanence and indissolubility of the union, between persons who, not belonging to a recognized church by their beliefs, do not submit to the church wedding rite, the question arises: under what conditions can this marriage be recognized as legal? This question, in any case, required resolution, and the more urgently, the further the circle of persons expanded, for whom, according to their social status, civil rights, combined with the legality of marriage and birth, are of particular importance. This issue was resolved with the publication, in 1874, of new rules on schismatic marriages. The history of schismatic marriages. The non-priest schismatics, having rejected any possibility of a correct priesthood in the church, had to logically come and came to the conclusion that it was impossible to perform the correct sacraments and, therefore, correct marriages. From here arose, in the midst of the Fedoseyev school, the doctrine that marriage itself is defilement and that strict virginity is a universal obligation in the cramped conditions of life before the end of the world. This teaching, contrary to the needs of nature, of course, could not maintain itself in real life, and in the Pomeranian sense it was counteracted by another teaching about the need for the legality of marriage - even apart from the correct priesthood. This was (1728) Alekseev’s teaching that the grace of marriage does not depend on the wedding, but on the blessing of God initially given to the first couple, and therefore for the legality of marriage, mutual consent with the consent of the parents and with the consent of the people is sufficient; therefore, marriages performed in the state church are also legal. Under the cover of this teaching, the custom of getting married in the Orthodox Church began to spread (those getting married were called newlyweds). In the Orthodox Church, since 1722, decrees decreed that schismatics should be married only by joining Orthodoxy, but this rule was in fact mostly not observed, which made it possible for non-priests to obtain a wedding for themselves without violating their conscience. But just as it was not always possible to achieve this goal, and, on the other hand, not everyone decided to get married in a church recognized by the schism as heretical, Alekseev’s teaching turned out to be insufficient, and in the second half of the 18th century, along with the previous one, a new, freer teaching on marriage was formed, preached by the Pomeranian rector of the Moscow Intercession Chapel Emelyanov. In his opinion, the participation of the church and its pastors in marriage is not at all essential, and for the legality of marriage only the consent of the parties, the blessing of the parents, betrothal, witnesses and legal marriage are required. Emelyanov’s teaching, spreading among the Pomeranians, was expressed even more clearly and fully when the later (at the beginning of this century) Pomeranian teacher, Pavel the Curious, began to develop it in his writings. By virtue of this teaching, which essentially coincides with the beginning of the so-called civil marriage, an institution was set up in the Pokrovsk chapel for the celebration of marriages by means of a note in the “marriage” book, and the Pomeranians tried in every possible way to give semi-official significance to this note among the civil authorities. In Moscow, St. Petersburg and throughout the cities, books for recording marriages were kept at chapels and in private chapels; a form of marriage contracts was also formed (in the form of an oath letter addressed to a public meeting), with which the parties solemnly certified their union in the presence of witnesses, and in some places marriages were concluded without any appearance, only with the blessing of the parents, with the assistance of a home ritual combined with symbolic actions (rolling cigarettes). So, along with the Fedoseevsky custom of promiscuous copulation, which rejected marriage, and in addition to marriages after marriage in the Orthodox or Edinoverie church (facilitated during the reign of Empress Catherine II by the temporary leniency of church and civil authorities), so-called non-sacred marriages arose in large numbers. However, the legality of these recent marriages was constantly denied by the state authorities, recognizing them as adulterous marriages, and the children born from such marriages as illegal. Under Catherine II, the civil government refrained from prosecuting such marriages, but in the present century it began to act more strictly against them, with criminal prosecution and decisive decisions that children born from such marriages were deprived of their inheritance and family name. The greater or lesser severity of the government regarding these marriages was weakened from time to time due to differences in circumstances and personal views; but after the 8th revision, decisive measures were taken to prevent the very commission of sacramental marriages. In 1839, it was ordered that witnesses to marriages be put on trial and treated as seducers; those brought together should not be recognized as husband and wife, but invited to legitimize their marriages by getting married in churches of the same faith, or in Orthodox churches of the general order; The church authorities dissolved such marriages if one of the parties joined Orthodoxy. In 1850, regarding the 9th national census, it was ordered that the Bespopovites, who completely rejected marriage, show children as illegitimate, and mothers should not be recorded as the wives of schismatics, but included in the lists of families to which they belong by birth, and this order was applied to schismatics who were in open marriages. As for the celebration, as well as the legalization of schismatic marriages by wedding in the Orthodox Church, this method was not open to those wishing to use it unconditionally, for in some dioceses the church authorities allowed such a wedding without joining the Orthodox Church and without the obligation to raise children in Orthodoxy, while in others both were strictly required; in the civil law, a positive rule was expressed and remains to this day (Zak. Gr. 30 art. ed. 1842, 33 art. ed. 1887) a positive rule: if schismatics, entering into marriage, wish to get married in the Orthodox Church, then before the wedding it is necessary to oblige those getting married by an oath to be firm in their orthodoxy and agree with the schismatics not have. Unfortunately, the unconditional severity of this rule should have turned many away from marriage and deprived them of the only means of legitimizing marriage. The civil authorities looked more leniently on the marriages of schismatic priests who accepted the priesthood (although not recognized by the Orthodox Church), allowing their spouses and children to be considered legitimate according to the audit record and police certificates; but this leniency lasted only until 1853, when the Highest command was issued: to demand from the priests to prove the legality of marriage and birth metric certificates, which they, not having a legal metric record, could not provide (see about this book by Mr. Nilsky: Family life in the Russian schism; Fuchs’s article: On step marriages in the “Ethnographic Collection” of 1862 and art. Mullova in Kalachov’s “Archive” 1860, No. 11). On April 19, 1874, the V.U. took place. pl. G.S. (P.S.Z. N 53391) on the establishment of metric books for recording marriages, births and deaths of schismatics. These decisions, according to the difference in their content, are placed in the Civil Laws (ed. 1887, Art. 78 and note), in the Laws on States (Art. 1093, appendix) and in the Laws of Civil Proceedings. With regard to the conditions and procedure for the metrical recording of marriage, birth and death, the said regulations are as follows. 1) Marriages of schismatics acquire in civil terms, through entry in the special metric books established for this purpose, the force and consequences of a legal marriage. 2) Such marriages of schismatics, which are prohibited by the Civil Laws (Vol. X, Part I, Art. 3, 4, 5, 12, 20, 21 and 23), are prohibited and are not subject to entry into the registry registers. 3) A schismatic who wishes to have his marriage recorded in the registry register must notify the police or volost administration of his permanent place of residence in writing or verbally, indicating the name, title and condition of both spouses. 4) According to such notification (Article 3), the police or township department draws up a special announcement each time and displays it for seven days in a visible place at the doors of the department. 5) Everyone who has information about obstacles to recording an announced marriage in the register of births is obliged to let the police or volost authorities know about it in writing or in words. 6) After seven days from the day on which the announcement was posted, the rural municipality or police department issues a certificate to the person who has expressed a desire to register his marriage in the registry register, stating that the provisions established by Art. 4 the announcement was made, as well as whether any legal obstacle to the said entry was declared on anyone’s part, and if such a statement was made, then what exactly it consisted of. 7) To record a marriage in the birth register, both spouses must personally appear at the police department indicated below (Article 21) and present the certificate issued by them about the announcement made (Article 6). Regardless of this, each spouse must present two guarantors to certify that the marriage being reported to the police is not prohibited by law (Article 2). The testimony given by the guarantors is stated in writing and signed by them, and if they are illiterate, by those whom they trust. 8) Persons wishing to register their marriage are required to submit the permits established by Art. 6 and 9 Civil Laws (vol. X, part 1). 9) Before recording the marriage in the registry register, both spouses are required to sign that they belong to the schism from birth and are not married according to the rules of the Orthodox Church or according to the rites of another confession recognized in the state. The performance of marriage rites observed between schismatics prior to the registration of marriage is not subject to the supervision of police officials. 10) If a legal obstacle presents itself to the recording of a marriage in the registry register, then the police department, having stopped this recording, draws up a ruling about it, which can be appealed in the manner below specified (Article 30). 11) The existence of a marriage of schismatics is considered proven from the date of entry in the metric book. But if, upon appealing in the prescribed manner the police department’s determination of obstacles to registration (Article 10), this determination is found to be incorrect, then the marriage, at the request of one or both spouses, is considered to have legal force not from the date of its actual entry into the birth register, but from the time of the initial application about it (Article 7). A special note is made about this in the metric book. 12) A marriage recorded in the registry can only be dissolved by court, in the cases specified in Art. 45 Civil Laws (vol. X, part 1). 13) Marriages prohibited by law (Article 2) or concluded between persons who do not belong to the schism from birth, or are in a marriage performed according to the rules of the Orthodox Church or according to the rites of another religion recognized in the state, are considered illegal and invalid, even if they were recorded in the registry. 14) Failure to comply with the rules established above Art. when recording a marriage in the metric book. 3–6 and 8, exposes the perpetrators to legal liability, but does not destroy the marriage itself. Police officers are also subject to liability if they fail to collect the subscription mentioned in Art. 9. 15) Children of schismatics are subject to entry in the registry register only if the marriage of their parents is recorded in such a register. Note. Children born from schismatic marriages before the publication of this law, as well as during the first two years after its publication, may be recorded in the metric register even if they were born before the registration of the marriage of their parents, if their origin from the marriage union subsequently recorded, as well as the time of their birth, are certified as indicated in Art. 18 witnesses. 16) The children of schismatics recorded in the registry register are recognized as legitimate (Vol. X, Part I, Art. 119). 17) Birth applications for entry in the birth register are accepted by the police from the parents themselves or one of them personally, or, on their instructions, from someone else, so that, however, the validity of such an order is certified by two witnesses. In the event of the death of both parents, applications are accepted from guardians of minors and, in general, from persons who took them into their care. 18) The validity of the origin of children from the marriage recorded in the registry, as well as the correctness of the statement about the time of birth, must be confirmed by the testimony of at least two witnesses, which may include those mentioned in Art. 17. The very fact that the parents’ marriage was recorded in the registry book is certified by submitting an extract from it or a certificate in this book itself, if the book is located in the same place where the birth was declared. 19) After one year has passed from the date of birth, it is no longer recorded in the metric register, and its legality can only be proven in court, on the basis of Art. 35 of these rules. This does not apply to the cases specified in the note to Art. 15. 20) An entry about death is made in the registry register upon the application of the relatives of the deceased or strangers, confirmed by the testimony of at least two witnesses. 21) Registers of births, marriages and deaths of schismatics are kept in cities and counties by local police departments, and in capitals by local police officers and private bailiffs according to forms approved by the Minister of Internal Affairs. 22) In the metric birth record, the following are indicated: the name of the person born, first names, patronymics, last name and title of his parents, time of birth, time of the police statement about the birth, persons who declared it, and former witnesses. 23) Every entry in the registry books is signed by the police officers before whom the statement of birth, marriage or death was made, as well as by the persons who made the statement and who were, moreover, witnesses, if they are literate. The signatures of those who made the statement and witnesses in the birth register itself are not required when a birth or death is declared on the basis of the following Article 24. 24) Dissenters living in villages are allowed to make statements about birth and death to the volost government, which enters them in a special book, observing the rules set out in Art. 22 and 23. The volost administration is obliged to report monthly statements made to the relevant police department in order to record such statements in the parish registers. 25) At the end of each year, the registry books are submitted by the district police departments to the provincial government (in St. Petersburg and other city authorities - to the mayor’s department, and in Moscow - to the office of the chief police officer) for proper verification and storage thereof. 26) Extracts from metric books are compiled according to forms approved by the Minister of Internal Affairs, and are issued to private individuals, at their requests, from police departments and provincial boards (in St. Petersburg and other city administrations - from the mayor’s office, and in Moscow - from the office of the chief police officer), depending on which of these regulations the metric book from which is made is located at that time discharge. 27) Birth certificates are issued either to the person whose birth is recorded in the book, or to his parents, guardians or trustees; outsiders, in order to obtain a birth certificate of someone's birth, must be authorized by a legal power of attorney from that person. 28). Extracts from parish registers are also issued at the request of government offices and officials. 29) A secondary extract from birth registers is issued only in case of loss or destruction of the first one. 30) Complaints about improper actions of police departments, both in maintaining parish registers and issuing extracts from them, are brought: about district police departments - to the provincial government, about district police officers in St. Petersburg and about police departments of other city administrations - to the mayor, about district police officers in Moscow - to the chief police officer, to the Moscow chief police officer - to the governor general, and for provincial boards, St. Petersburg and other city governors - to the 1st department of the Governing Senate, in compliance with the generally established order for complaints about police places. The magazine “Knowledge” in 1874 (No. 1) published an interesting article by Mrs. Efimenko: People’s legal views on marriage. The author, citing, on the basis of decisions made by the volost courts and his own observations, peasant customs, which express the popular view of the contractual side of marriage, comes, on the basis of these data, to the conclusion that constitutes the main idea of ​​the article. “The true view of the people on marriage is far from what is presented to society under the name of popular views on marriage, as an exclusively religious act, as a sacrament. In ancient Russian society, marriage law was determined not only by canonical decrees, but also by Greco-Roman civil legislation; and practice treated these rules quite freely. Reasons for divorce were allowed quite broadly, and only the consent of the spiritual father was required for divorce, which continued until the end of the 18th century. But these frameworks seemed too narrow to the people and caused, as the author puts it, a struggle between the clergy and the people to limit freedom in marriage. Under Peter, secular authorities took over marriage legislation and limited ecclesiastical jurisdiction; but at the same time, there is an even greater restriction of marriage law, and our secular legislation on marriage becomes strictly religious. For all this, the people remained completely with their old view of marriage as a civil act, only sanctified by the blessing of the church.” As evidence, the author points to the forms of marriage agreements in force among the people, to the usual meaning of a dowry, masonry and gifts, to claims for damages from violation of the marriage contract that are common among the people and satisfied by the people's court, and finally to the custom of free divorce that exists in some places. The author does not deny that these customs express extreme materialism and that in a marriage agreement, as is customary among peasants, there is almost no place left for the idea of ​​​​a spiritual connection in marriage, and the personality of the bride is hardly different from the thing that serves as the subject of contractual agreements. A deep discord lies between the idealism of law and the materialism of life. For life, the law remains a dead letter, and therefore, according to the author, the legislator should lower his ideal of marriage and bring it into line with popular opinion and custom: With all due respect to the integrity of this article and the good intentions of the author, it is impossible to agree with his main idea. If we took his point of view, we would have to redo the legislation not only in marriage law, but also in all other articles, where only the law sets itself a moral ideal, a moral norm of truth; It would be necessary to completely deny in the law the very element that constitutes the highest justification and the fundamental essence of any law, i.e. moral, spiritual truth and place it in subordination to another, also necessary, but essentially subordinate element of any law - the economic and material element. Any prohibitive law (don’t do it, don’t touch it) in the name of a higher spiritual principle encounters opposition in the environment for which it was established, and from those impulses of nature that it is intended to limit by its commandment. This is the moral, educational effect of each commandment; it produces a bifurcation of the primitive concept between legal and illegal, between truth and untruth. Without a doubt, the law should not ignore the material conditions of the environment and the concepts that dominate it, about those relations for which the law is established; but to sacrifice this condition - the highest goal of the law, and to sacrifice its moral norm to material requirements - would mean to humiliate the law itself and take away from it its main force. Among the people, due to various reasons, and mainly due to the underdevelopment of their economic concepts, the most immoral customs can develop. To deceive each other in one respect is considered dishonest, in another respect it is considered a brave act, in which everyone laughs at the deceived. Stealing timber from one person - for example, from one's brother - is considered an unkind deed, while from another - for example, from a neighboring landowner - it is considered an ordinary, harmless thing; Hiring a job, taking money and then moving on to someone else who will give more is sometimes considered in the working class to be a shameless and irresponsible thing. Should the law really apply itself to these concepts existing in the environment, and lower its invariable standard of firmness of contractual relations to their level? In the current economic state, the common people are dominated by the economic concept of marriage and women. The woman in the home is considered primarily a labor force; marriages are concluded in consideration of this concept only; parents choose brides and grooms for their children themselves, without coping with their will and inclinations; a bad husband lets go or drives out his wife, a bad wife runs away from her husband as she pleases; a husband (there have been examples of this) cedes his wife to another under an agreement, etc. Should our marriage law really be consistent with such concepts about marriage? These concepts, no doubt, will change with changes in economic life, with the development of spiritual nature - and then the high legal norm will become clear to him; it, in itself, corresponding to the unchangeable truth, cannot change. The author of the mentioned article cites with some irony the definition of marriage included in this book (§ 3): “satisfying the need for communication of all organic, internal and external forces, consistent with the rational nature of man, given to a person for development, work and pleasure in life,” and asks: is anything less suitable than this definition for the phenomena of life around us. Without a doubt, it does not fit, just as any ideal norm of relationships does not fit reality - but should this norm be abandoned? In the sphere of international relations, as well as private civil ones, deceptions, violence, and violations of trust occur continuously: is it really because of this that the law should recognize the moral principle as powerless and illusory and base its definitions solely on the motives of material interest? Public morality in society can reach extreme decline at one time or another, expressed in the extreme increase in crimes against property, honor and life, and these crimes themselves, in most cases, can be explained by the state of the environment in which they occur, lack of education, rudeness of morals, dominance of material interests: should the legislator really change the eternal norm of truth and not threaten with punishment what deserves punishment as a crime? It is impossible to accept such an argument as true; following it, one would have to little by little remove the bonds from everything and destroy all edges. Then what would the law itself become? They usually point out the practical invalidity of the prohibition, and say that it is harmful to raise the moral standard too high when reality corresponds too little to it. Why, they ask, does the law make marriage a sacred and indissoluble union of love, when in fact this union is constantly destroyed by crime, or under the hypocritical cover of this union the spouses live in alienation and enmity among themselves? One can answer: so that the beginning of truth stands high, in the sight of everyone, without being subject to hesitation or doubt; then, so that in view of it the conscience in the public and private consciousness is not forgotten and falls asleep; so that the criminal of the law in his very crime does not lose the opportunity to feel that he is committing a lie. Lower the high banner of truth from the law, remove this highly placed light - it won’t be any better, even from a utilitarian point of view, i.e. marriages will not become more perfect from this, there will be no more love and peace in families, but conscience will lose its firm measure, the law will not have that sting that is designed to awaken it. In the struggle between law and reality, many see hypocrisy and believe that the law, by raising the measure of duty, leads people under the law into hypocrisy and temptation. No, the desire to hide from exposure, to conceal and cover up actions perceived as illegal should not be considered hypocrisy: this expresses the consciousness of untruth, just as shame is expressed in the desire to cover up dirt and nakedness. Will it be better when dirt and nakedness begin to appear without shame and without consciousness? However, it is necessary to make a reservation. Writers who direct their objections to our laws on marriage and their application usually confuse in one condemnation and from one point of view all the accessories of these laws, without distinguishing what constitutes the essence of marriage, as a sacrament of the church, and what belongs to the essence of civil relations between spouses, determined by civil law. They usually come to one conclusion: they demand the secularization of marriage in Russia and, on its basis, reform of existing civil relations between spouses. So in the mentioned article, the author complains mainly that our civil legislation denies the legal force of a record or conditional marriage agreement and does not give room for a claim for damages from violation of such an agreement, while folk custom in real life allows for both. But at the same time, and from the same point of view, the author also refers to the form of church marriage and church divorce that exists in our country, arguing that both are incompatible with the popular consciousness. It is obvious, however, that one is a matter of faith and church law, the other is a matter of purely civil law. Cancel the first one, i.e. to recognize marriage as a civil contract and to transfer into civil law the conditions for the consummation and dissolution of marriage - here in Russia, we repeat, it is impossible without renouncing the church to which we consider ourselves, without seducing and without violating the popular belief in the authority of the ecumenical conciliar teaching. But then, both the civil agreement on marriage, in its material accessories, and the definition of civil relations in marriage between spouses constitute the subject of civil legislation, and on this subject there is room for verification, change and improvement of existing decisions taken at different times. Some of them took place independently of church law, others - according to conclusions from church law, which may be incorrect and erroneous, perhaps on such subjects in which church law does not bind the civil legislator. Criticism of these decisions can only be true and fruitful when each of them is analyzed in itself, in connection with its historical and social conditions: but if each of them is looked at from one point of view and demands their abolition in the name of the same principle of the secularization of marriage, then the formulation of questions will be incorrect and biased. Thus, one cannot but agree with Ms. Efimenko that our civil law really ignores the requirements of real life when it unconditionally denies the legal validity of all civil records and conditions of marriage, and rejects claims arising from violation of such conditions. But the question it is now raising de leqe ferenda cannot be resolved on the basis of the customs existing among the peasant class alone. It cannot be denied that it is significantly connected with the issue of freedom of marriage, which the law should rightly protect. Peter's decree prohibiting marriage records with charges requires revision, but it would be unfair to condemn this law in advance simply because it does not agree with popular custom. People's life in the era of Peter's reform was, and still is in many respects, outside the scope of the general civil law, and the decree of Peter the Great was caused by abuses that occurred among those classes for which the general civil law was written. What these abuses were and to what extent, with the help of records, deceptions in marriages reached, can be seen from Kotoshikhin’s essay on Russia during the reign of Alexei Mikhailovich. § 10. Termination, dissolution and separation of marriage. – Participation of public authorities in cases of divorce. – Department of these cases and special rules of the process. – Difference between annulment and divorce. – Unconditional and relative reasons for cancellation. – The action of coercion and delusion. – Consequences of cancellation. - Imaginary marriage. – Difference between divorce and separation of spouses. – Reasons for divorce. – The act of adultery in marriage. – Difference between French and Prussian law on divorce and separation. – Critical opinions about divorce There is no doubt about the termination of a marriage due to random events that do not depend on the will of a person, for example, due to the death of a physical or political person and the unknown absence of one of the spouses; but the questions of in what cases a marriage can be dissolved or declared invalid at the will of one of the spouses and as a result of actions dependent on the will are among the most unclear and confusing. In ancient times, the law did not raise these questions in the legal sense; separation of marriage was considered a matter for the spouses, or, as, for example. Among the Jews, the husband was given the freedom to let his wife go. But among the new European nations, especially since the church accepted marriage into its department, it has been accepted as a rule and remains firm that spouses cannot break off their marital relationship on their own, and both divorce and separation of an irregular marriage are allowed only by a verdict of the proper court. The integrity and strength of the marriage union is considered an important matter for the state, and some legislation extends its concern for this to such an extent that it orders a special prosecutor (Eheanwalt) on behalf of the state to take part in all processes regarding the strength of marriage in order to ensure the correctness of court decisions and prevent one-sided views on these matters. This concern is most clearly expressed in the Prussian institution of 1844, which instructed a special prosecutor to enter into personal mediation between the parties in these cases and insist in court not only on the destruction of illegal marriages, but also on maintaining in force marriages that turn out to be correct. On the contrary, French law imposes in these cases on the prosecutor the primary duty to act against illegal marriages, without giving him complete freedom to defend the firmness of the marriage according to the circumstances of the case and according to personal conviction, unless the direct text of the article of the law is violated by the destruction of it (Code N. 184, 190–193, 199, 200). The department of marriage affairs everywhere initially belonged to the church and church courts. This rule was unconditionally expressed in the decrees of the Council of Trent, and the Church has always stubbornly guarded and defended it. Even after the reform, the church retained the right of court in marriage matters not only in Catholic countries, but also in England and in states of Lutheran law, where, however, consistories consisted of half clergy and half secular. Naturally, in spiritual courts there was a constant desire to affirm the indissolubility of the marriage union and to make the dissolution of marriages as difficult as possible, even under conditions in which the secular government saw sufficient reasons to recognize marriages as invalid. But as the idea of ​​a civil form of marriage became clearer in secular legislation, the idea of ​​the indissolubility of the marriage union in the sense assigned to it by the church also weakened. Regulations on legal obstacles to marriage and on its legal conditions began to be part of the civil codes in many states, and wherever civil marriage was introduced, marriage cases came to the department of general secular courts. In England, the operation of ecclesiastical marriage courts continued until 1858; only in important cases were divorce decisions subject to parliamentary approval; but since 1858, a special court for divorce and matrimonial cases (Court for Divorce and matrimonial Causes) has been established. In Greek laws, under the influence of the German administration under King Otto, some innovations in marriage law were adopted that do not entirely agree with the church spirit and structure: excommunication from the table and bed was introduced, according to the Western model, and divorce was established, from civil jurisdiction, in the church form of marriage. The church authority accepts the request for divorce and, if the attempt at reconciliation fails within 3 months, sends it to the secular court, which decides whether or not there is a reason for divorce; then he sends the case to the church court, which gives a divorce according to church branches. In Serbia and among the Austrian Slavs, marriage matters are carried out in the ecclesiastical court. The legal proceedings in these cases differ everywhere in certain features, depending on their special properties. An oath is usually not considered evidence in these cases, and one’s own confession does not have decisive force; Witnesses from among close relatives of both parties are allowed (French law). At the very beginning of the process, the court may take special measures to protect the personality of the wife litigating with her husband (she is allowed to live separately from her husband until the case is resolved), to provide her with funds for maintenance, to protect her property in the total amount of the matrimonial household, to ensure the fate of the children during the litigation between the parents, etc. The law favors the reconciliation of spouses, and to this end, many legislations establish preliminary proceedings before the court, in order to induce the parties to reconcile through an official mediator. So, for example, in Prussia, the law of 1844 established a preliminary 4-month period during which, before filing a formal claim, the parish pastor must persuade the spouses to reconcile. Termination of marital relations between living spouses may follow: either on the basis that the marriage at its very beginning, in the absence of essential conditions of the marriage union, is recognized as illegal and invalid from the very beginning (dissolution des mariages nuls ou inexistants, Trennung nichtiger Ehen) - this will be the destruction or annulment of the marriage - or on the basis that the marriage, which was initially valid, is dissolved due to events that occurred during the marriage, violating the essence and integrity of the marriage union and constituting a legal reason for divorce and separation of spouses (Divorce, Ehescheidung). There are essential conditions necessary for any contractual agreement to be considered valid; where they are not found, there is no agreement. There are special conditions that are so essential in marriage that in the absence of these conditions the law does not recognize the marriage, and the marriage entered into according to the form is declared invalid. Some of these requirements are so important that the law decisively and unconditionally declares a marriage, for non-compliance with them, invalid; and other demands, secondary ones, are recognized only conditionally as a reason for the destruction of the marriage. There are shortcomings and defects in marriage that are so deep that their correction is subsequently considered impossible (insanabilis defectus); there are other defects, the correction or coverage of which may still depend on a subsequent action, or tacit agreement of the parties (sanabilis defectus). There are shortcomings that, no matter at what time they are discovered and by whomever they are discovered, retain their destructive effect; There are other shortcomings that, relating more to the interests of some individuals than to the interests of the public or family, can be legally discovered only within the prescribed period and by some individuals only. Hence comes the distinction accepted by all legislation between unconditional and relative nullity in an irregular marriage (nullité absolue, perpétuélle; nullité relative, temporaire; mariage nul, mariage annullable. Nichtigkeit, Ungültigkeit - Prussian). The assignment of certain vices to one or another category depends on a positive law. In general, the unconditional reasons for the abolition of marriage include: 1. Identity of gender - in which marriage is unthinkable; 2. Civil death, in which one of the spouses was at the time of marriage (if the law does not allow marriage in this state); 3. The decisive impossibility of free will and consent on one side or the other (for example, in a state of madness); 4. Relationship between the parties prohibited in marriage; 5. Bigamy or bigamy in marriage; 6. Failure to comply with the form that the law recognizes as essential in marriage. This is, for example, according to French law, a marriage performed by mutual consent, but without a solemn expression of will before an official, or with an expression of will, but not before the subject official (incompetent), or a marriage performed in secret, with the elimination of publicity. Conditional reasons include: 1. Imperfect consent of the parties during marriage. Consent is incompatible with coercion or lack of clear consciousness, e.g. due to error and malice. Obviously, this shortcoming and defect is not unconditional: it can be covered by subsequent agreement of the parties; but, in addition, the very concepts of coercion, error and deception are conditional concepts. Where direct consent was not given, there might as well not be coercion; Where there was moral compulsion, it is difficult to detect it and determine its decisive moment. In particular, the concept of error is very unclear and shaky, and an erroneous idea about the subject of an action cannot always serve as a correct reservation from an action. Mistake in marriage especially serves as a reason for numerous disputes in judicial practice. Without a doubt, the mistake was gross and decisive when it related to the physical identity of a person, when, for example, another bride was substituted for the groom at the moment of marriage. But is it possible to recognize the legal significance of an error when it relates to the civil or social qualities of a person, for example. when the husband did not find in his wife those civil qualities that he imagined (regarding honor, title, fortune, etc.), thinking of marrying a noble person, married a public woman or a convict, thinking of marrying a Catholic, married a Lutheran, etc. In general, decisive importance is attached only to error, delusion regarding the essential qualities of a person, which are inseparable from the idea of ​​the person itself and, falling away, completely destroy his identity (in the words of canonical writers, quando animus contrahentis sic fertur in certam qualitatem, ut implicite nolit personam, si ipsi desit qualitas, in qua errat). These are, for example, normal civil status, physical ability to marry, freedom from monastic vows. A misconception regarding such qualities, which in themselves are assumed upon entering into marriage, may be a reason for declaring the marriage invalid, unless the circumstances of the case reveal that qualities of this kind were not given important importance when entering into marriage. On the contrary, an error in qualities that are insignificant or accidental, i.e., is not considered a reason. those that are not automatically assumed when representing a civil person in marriage, for example. regarding fortune and property, regarding mental qualities, official distinctions, health, etc. 2. Another reason is parental disagreement. Different legislations attach different importance to this shortcoming, depending on the strength of parental authority and the extent to which civil law is subordinate to church law (the French law is the strictest). But in any case, this deficiency is corrected by subsequent consent and time. 3. The third reason is the lack of the required age at marriage. The destructive effect of all the above-mentioned shortcomings is further weakened by regulations on persons having the right to claim and on the time frame for starting it. A marriage destroyed at its very beginning is usually considered insignificant from the very beginning. But this strict rule, if applied to all cases, would in many cases be unfair in relation to the spouses themselves, who could conscientiously honor themselves in a legal marriage, not knowing about its vices, and especially in relation to the children born from that marriage. In such cases, the law makes leniency towards marriage, destroying and delegitimizing its accessories and consequences only from the minute when its abolition is pronounced. Such marriages are called pseudo-legal marriages (matrim. putativum, mariage putatif); but the advantage of a pseudo-legal marriage is usually enjoyed only by a marriage that is not absolutely illegal and concluded without an obvious violation of the form. If both spouses were guilty in their minds, then the advantage extends to both, i.e. the actions performed by them under marriage law remain in force, and the right of parental authority over children, whose birth is assigned legality, is also preserved for both. On the contrary, if only one of the spouses was innocent in his mind, then he alone is given the benefits of the former marriage. The Church, based on the words of Christ the Savior in the Gospel (Matthew V, 28, 31, 32; XIX, 3–12, Mark X, 2–12, Luke XVI, 18. Compare 1 Cor. VII, 10–15), recognized marriage as an indissoluble union, contrary to the view of pagan antiquity. Divorce, according to the strict meaning of the Gospel teaching, is allowed only for adultery in marriage and in the case of a non-Christian spouse abandoning another spouse who has converted to Christianity. But when public morals began to demand, in extreme cases, a softening of the original severity, the Catholic Church, in order not to deviate in essence from the canonically accepted rule, began to allow, in addition to complete divorce or dissolution of marriage bonds (separatio quoad vinculum, divortium), imperfect, material only separation of spouses - from cohabitation (separation of the table and bed, separatio quoad thorum et mensam, separation de corps). According to the rules of the Catholic Church, this separation can be lifelong, thus replacing a complete divorce - in its material consequences. On the contrary, in Protestantism, which has deviated from the strictly canonical view of marriage, a complete divorce is allowed for many legitimate reasons, and separation from cohabitation is accepted as a temporary measure, for a period (several years) allowed 11. This is where laws based on Catholic church statutes primarily differ from laws stemming from Protestant church law. However, some of the Protestant states established a civil divorce law that did not agree with the church statutes of Lutheranism. On the other hand, even in states of Catholic law, precisely where civil marriage has been adopted, civil decrees on divorce, bearing in mind exclusively the contractual and social meaning of marriage, are not consistent with the statutes of their church, leaving it, regardless of the state, to act on the conscience of each of its sons. With all this, nowhere else, one might say, has civil law completely renounced the church view, since the mass of believers among the people has not and cannot completely renounce it. In France, in an era of strong reaction against church authority (1792), the civil law of divorce was adopted: it seemed to the legislator that excommunication was only an unnecessary complication of the form, with all the inconveniences of divorce, but without its practical benefits. The Napoleonic Code, intending to reconcile both extremes of view, left divorce, but along with it allowed separation for those spouses whose conscience does not allow them to proceed with a formal divorce. But public opinion again rebelled against divorce in the name of religion and the church, and in 1816 divorce was abolished, and lifelong separation (separation de corps) for legal reasons (pour cause determinée) was retained in law. This separation corresponds to divorce in satisfying the need to separate; it separates spouses from common residence and from common care of children, but also differs significantly from divorce, for it does not completely break the union and does not free the spouses from bonds, leaving in force the obligations of marital fidelity and mutual assistance, the husband's right of judicial authorization and mutual rights to inheritance. It would seem that separation is more convenient and moral than divorce in the sense that it does not have an irrevocable effect, but the French law of 1816 (Article 295) positively prohibited separated spouses from restoring their union. In order to mitigate the effect of a divorce decree, Prussian law authorizes the judge to postpone the announcement of the judgment and suspend its effect for a year. Where urgent separation of spouses is allowed, there it has the meaning of a temporary measure, either in order to arouse a desire for reconciliation, or in order to prevent one party from ill-treating the other; therefore, the terms are short, in rare cases longer than 3 years. Recently, in France, the mere separation of spouses has again been recognized as not achieving the goal, and therefore, along with it, divorce has again been allowed. The law of 1884 (Bulletin des lois N 859) restored the force of the provisions of the Napoleonic Code on divorce, but with significant changes, in many ways modest, compared with the law of 1803. Divorce by mutual agreement of the spouses, established by the code (Articles 275–294), is not allowed by the law of 1884. Under the previous law, one husband had the right to demand a divorce for his wife's adultery outside the home; Nowadays, the wife is also given the right to demand a divorce due to her husband’s adultery, regardless of whether he kept a concubine in his house or not. The court is given wide discretion to discuss the facts in the case of adultery, as well as in the case of grave insults and violence between spouses (excès, sèvices ou injures graves). The new law recognizes as a reason for divorce only a severe punishment for one of the spouses for a crime (peine afflictive et infamante), while the previous one was content with a less serious one (peine infamante). The new law allows divorced spouses to restore their marital union if they did not enter into a new marriage after the divorce, and does not allow those who reunited after the divorce to divorce again. Along with divorce, the law allows you to ask, for the same reasons, for lifelong separation; and after three years of separation, ask for a divorce, the granting of which, however, depends on the court. It is noteworthy that all divorce proceedings, according to the new law, are not carried out publicly, with a ban on printing reports of meetings. French law does not recognize malicious abandonment of a spouse as grounds for divorce. The new law on divorce affected the situation of separated spouses, indirectly encouraging them to seek a divorce, since with the separation of the spouses their legal union with all the consequences does not end, i.e. with the husband's authority over the wife's property. To eliminate this inconvenience, a law was passed in 1893, which granted a separated wife the right of separate residence, the right to separate property, the free right to act in courts, and the right to ask for the separation of her family name from her husband’s. In Catholic church law, separation from table and bed (separation de corps, separatio a thoro et mensa) serves as a substitute for divorce in cases where the law does not allow divorce unconditionally. On the contrary, in Protestant legislation, where divorce is allowed, separation from the table and bed takes on the meaning of a conditional and temporary divorce, as determined by the court. The practical purpose of this measure is to assign dissenting spouses a time during which they could, if living separately, test whether their disagreement is truly serious and decisive and whether it does not depend on random and temporary reasons. This measure is taken in cases where the court, not seeing positive legal reasons for divorce, finds, however, mutual disgust between the spouses, or sees, on the one hand, such actions (severity, threats, debauchery, drunken rioting, etc.), as a result of which cohabitation becomes unbearable. Then, for the prescribed period, separation of residence is determined, and all other legal provisions of the marriage remain in force, i.e. the husband is obliged to support his wife, the husband has children, etc. After the expiration of the prescribed period, as a result of a new petition, the court can either set a new period for continuing the trial, or decide a final divorce (sep. quoad vinculum). The main legal reasons for divorce or (where there is no divorce) for lifelong separation of spouses are: 1. Proven adultery of a spouse, or such signs of intimate treatment of a third party, based on which one can conclude adultery; sometimes a decisive attempt at adultery; also unnatural vices (Preuss. Ldr. II, 1. § 670–676). 2. Malicious abandonment of a spouse (malitiosa desertio) and refusal to return to him, despite challenge and persuasion. Both must be positively proven. Prussian law classifies as malicious abandonment the constant and persistent refusal of one spouse to the other to perform marital duties (Pr. Ldr. II, § 694–695). 3. Attempt on the life of a spouse and cruel treatment of him. The concept of ill-treatment can be given a more or less broad meaning. The French law, without explaining the particulars, uses only the general name éxcès, sévices, injures graves. Other legislation, restricting or expanding the concept, requires material signs of cruel treatment, beatings, wounds, persistent refusal of necessary maintenance, or are content with signs of gross insult to honor, in word or deed. Prussian law goes so far as to allow the judge to dissolve simply “unhappy marriages” due to the spouses’ obvious disgust with each other, when there is no hope of reconciliation (Pr. Ldr. II, § 700–718). 4. Certain actions or conditions of one of the spouses, as a result of which positive law gives the right to the other spouse to refuse cohabitation and ask for separation or divorce: such, for example, self-harm, punishment for a crime, renunciation of Christianity, a painful condition. This category includes a wide variety of decrees, the number of which, unfortunately, has multiplied beyond measure in new legislation. Thus, French law considers any punishment associated with deprivation of honor (peine infamante, Code 232) to be a reason for separation, even despite pardon. Prussian law allows the dissolution of a marriage when one of the spouses is sentenced not only to punishment depriving one of honor, but to severe correctional punishment, to imprisonment in a fortress and in a straight house; divorce is permitted on the grounds of shameful work (schimpfliches Gewerbe), persistent drunkenness, depraved (unordentliche) behavior, extravagance; even without the fault of the spouse, due to disgusting and serious illnesses that impede the performance of marital duties, due to insanity or insanity lasting more than 1 year (Pr. Ldr. II, § 696–698, 704, 759, 760). It is difficult not to condemn such decisions, and many of them are condemned by the Prussian jurists themselves, because they contradict the natural moral duty of spouses not to leave each other in illness and misfortune. Prussian legislation, which is still in force today, was formed under the strong influence of new teachings on marriage, which spread at the beginning of the 18th century, as an institution primarily of the state. This view of marriage also corresponded to the Lutheran concept of the church as a state institution, due to which the clergy appeared as servants not only of the church, but especially servants of the state. In this concept lay the beginning of clashes between church and state, and these clashes showed up with particular force in the first half of the current century, when the clergy refused to recognize civil law divorces and to perform new marriages of divorced persons (for the civil form of marriage had not yet been introduced in Germany). Since the 40s of this century, a number of attempts to change marriage law have begun in Prussia, ending most recently with a draft of an all-German civil code that has not yet received legislative sanction. According to this draft, the legal grounds for divorce are significantly limited: only three absolute grounds are recognized: adultery, malicious abandonment and attempt on the life of a spouse. Moreover, divorce is allowed for a crime that deprives one of honor. 5. A voluntary condition of both spouses to separate. Prussian law allows the court to dissolve a marriage by mutual consent in a case where the marriage is childless, and if the decision of the spouses can be considered completely deliberate. Italian law allows for acts of separation (Article 158). The former French law permitted divorce on this ground, under special conditions, after the request was repeated four times within a year; but the law of 1884, as we have seen, did not restore the provisions on divorce by mutual agreement, and the formal separation of spouses by mutual agreement was not allowed before (Code 307) - because (the lawyers interpret) that spouses can always separate in practice by mutual agreement, and without resorting to the assistance of the judiciary. Some of the local German laws allow this type of divorce with the permission of the supreme authority. The opinions of defenders of the old and new theories of marriage mainly differ on this type of divorce. As soon as the concept of marriage is taken beyond the boundaries of church law into the sphere of civil rights, a vast field opens up for the legislator who wants to provide new ways to divorce; but even the followers of the theory of civil marriage do not favor divorce based on the mutual consent of the spouses, for it is very difficult to determine under what conditions the will of the spouses should be recognized as a reasonable, maturely considered decision, and not a passion of the moment, which both will regret, not being able to restore the broken union. On the contrary, the new preachers of freedom in marriage argue that for the most part the parties, when entering into marriage, do not have the maturity and freedom that is necessary for choice and consent in such an important matter; that a woman especially very often marries under the influence of parental authority and while under age, and soon after marriage both parties discover their involuntary mistake, which makes life unbearable for them; that in such cases the legal possibility of divorce is especially necessary, which cannot be replaced by conditional separation, and that if the law allows divorce only for a crime, then it assigns a dangerous advantage to the crime. They argue that the danger from frivolity in divorce can be prevented by legal precautions and refer to the example of Hungary, where spouses are allowed to ask for a divorce together, but upon this request the court appoints several mediators from among the relatives to reconcile the discord. If the attempt at reconciliation fails, the spouses are given a period of 3 years, and when, after this period, this request is repeated, it is immediately granted. (For an example of such argumentation, one can cite the Westminster Review 1868, April and Frazer's Magazine, August 1861, article by Prof. Newman: Marriage Laws.) Obviously, the opinion about divorce depends on the opinion about the essence of marriage and marital relations. Representatives of the new school of radical transformation of family relations generally prove that in the consistent development of society, all these relations should be governed not by the law of fortunes, but by the law of contracts; that marriage, like any other contract, admits of all kinds of conditions at the will of the contracting parties, that in essence marriage is a contract of partnership and cohabitation for a special purpose, between persons of different sexes, and that if it is impossible to satisfy the purpose for which the contract is concluded, it is impossible in marriage, as in any other contract, to force its continuation, contrary to the interest and general desire of the parties (cf. Westminster Review art. The Laws of Marriage and Divorce. New series Vol. 26. Especially the work of Marriage and Divorce, by Richard London, 1888). These conclusions are, to say the least, too bold and speculative. The issue of divorce seems controversial not only in the fight against church-theological views, but also in the open field of philosophical teaching and sociology. The leader of sociologists, Auguste Comte, also admits this (Cours de philosophie positive. T. V, p. 687). There are many reasons for the denial of free divorce, which are unlikely to ever lose their significance, for they are rooted in the needs of the mental nature of man. Marriage by its nature is an indissoluble union, not only because the church recognized it as such, but on the contrary, the church confirmed with its verdict the awareness of the essential properties of the marriage union. Although marriage is established by agreement, the agreement, as noted above, does not exhaust the meaning of the marriage union, which serves as its own goal, while the goal of any other agreement lies outside it. Moreover, between contracts, not only the marriage contract has the property of indissolubility. Adoption is also inseparable, although it is established by agreement. The marriage contract is concluded everywhere simply, unconditionally; it does not contain conditions on the period, on the termination or retention of force and effect (cond. suspensives et résolutoires): in this form, no legislation allows a marriage contract (this rule is expressly stated in the Italian Code, Article 95). Be that as it may, however, one cannot help but see that the number of preachers and defenders of the new free theory of marriage is increasing in the West every year, their opinions are gaining ground both in literature and in science, and the more difficult it is for the guardians of the old theory to fight them, since neither one nor the other has firm support, having renounced the church idea of ​​marriage. In any case, this part of civil legislation in the West can least of all be considered established, and if, on the one hand, the strictness of the marriage law is undermined by the defenders of freedom in marriage, then, on the other hand, there is a noticeable desire to limit those cases in which some legislation allows the possibility of divorce for frivolity or selfish motives (for a similar movement in Prussia, see Savigny: Darstellung der in den preussischen Gesetzen über die Ehescheidung unternommenen Reform 1844). There is no doubt that the most essential interests of the state are inextricably linked with the issue of marriage and that the state weakens itself the more the further it unties the bonds of the marriage union and weakens its original spiritual idea. It is important for the state that it protects the high idea of ​​integrity and continuity - it also establishes the integrity of the family - the moral and cultural nursery of citizens. From this point of view, divorce appears to be an extraordinary, abnormal phenomenon, and therefore laws that favor and facilitate divorce should be discussed with extreme caution. It is undeniable that an unhappy marriage is the heaviest burden for a person both in family and civil life, and in many cases the burden is unbearable; but when people enter into marriage frivolously, knowing that they can break it off without much difficulty, then minor unevenness and failures in family life, or material hardships, may seem unbearable and arouse the desire for separation or divorce; on the contrary, when a marriage is concluded with the thought of its sacred meaning and with confidence in its inseparability, then the relations of the spouses themselves become more serious, mutual disagreements are more conveniently pacified, the arbitrariness of selfish desire is curbed, and the spouses learn to endure, endure mutual shortcomings and disasters and curb their will. True, the indissolubility of marriage is associated with great burdens for a woman, due to her subordinate position, but also associated with it is the high moral position that belongs to a woman. The newest teaching about free marriage consists of two theories, each of which has its own history and its own basic principle. On the one hand, it comes out of socialist and communist teachings, which strive to destroy any exclusivity of rights in the family and in property. On the other hand, and most deeply and consistently, it is connected with the theory of radical individualism, which rejects all authority in the state and in society. By virtue of this teaching, as expressed by the latest French, English and American preachers (most clearly by the American Samuel Warren), the family should not be considered the basic unit of society: it consists of each person in particular and in himself (individuum); therefore, autocracy (Souverainetät) belongs not to the Divine, not to the state, and not to the family, but to each individual. So, the denial of the Divine and the state is inextricably linked with this theory. This autocracy of each unit affirms unconditional freedom for each person and unconditionally prohibits everyone from any kind of power over another person or supervision over him. Conscious adherents of this doctrine do not allow a middle ground between the unconditional action of power and its unconditional negation. Any of two, they say: either complete state guardianship over an individual, with all the restrictions arising from the law and government, among other things, with laws limiting by marriage the free direction and movement of feelings in the relationship between a man and a woman, or complete autocracy of an individual unit, with complete freedom for all manifestations of life and activity, including feelings. Any restriction of this freedom can be allowed for one purpose only - for the greatest protection and security or for the restoration of this freedom. So, according to these teachers, any interference of the state in relations between individuals arising from feelings, and any legal union (i.e. protected and protected by law) between a man and a woman is unthinkable, since its legal protection is either completely unnecessary if the cohabitation of persons occurs by mutual consent, or wrong and outrageous - if it turns out to be contrary to their will and desire. This is the theory of marriage among the extreme radicals of freedom, with whom the theory of modern utilitarianism agrees in its views on this subject (as it is expressed, for example, by Mill, who borrowed much from the above-mentioned American, see Mill. Autobiography, p. 256). This teaching is distinguished by its logic and consistency, for it persistently strives for the complete destruction of all authority in all spheres of human existence and, rejecting it in religion, in the state and society, expels it from the family just as decisively and with the same passion. It is obvious for any sound mind, especially for any common sense, that while expelling authority from everywhere, this teaching at the same time inseparably expels from life every ideal, every higher, spiritual principle of activity, and leaves in all spheres of life truly free action to only one principle - the beginning of personal egoism. It is not difficult to imagine what the implementation of such a theory will lead to in public life: to the destruction of life itself, i.e. the very same thing in the name of which new principles are preached. In this regard, it can be rightly said that the strict logic of abstract theory, although true to the abstract principle of thinking, turns out to be false, because it is in complete discord with the fundamental principles of nature and life. This is not the place to enter into a detailed analysis of this teaching; but it is not useless to indicate what exactly it consists of, in which direction it looks and where it strives. And in our literature one can hear voices frivolously preaching in general terms the freedom of marriage. Many of them preach unconsciously, not knowing what they want and what their preaching means. Many, perhaps, would resist if they realized what in its integrity is the theory from which, satisfying their excited feelings, they take only one subject for their reasoning. But this subject cannot be separated from others and it is necessary to know that whoever has no legal marriage in his mind, by virtue of irresistible logic, has no family, no state, and no place left for God and religion. § 11. Office of divorce cases in Russia. – Recognition of marriage as invalid and legal reasons for this. – The procedure for conducting these cases and the consequences of the verdict to annul the marriage. – Divorce and its legal reasons. - The procedure for conducting these cases. – Conciliation activities of the court and special difficulties in church proceedings. – Infidel divorce cases After the introduction of Christianity in Russia, the rules of the Helmsman’s Book on divorce and divorce were adopted by our church, and marriage and divorce cases were assigned to the department of the church court. However, the church for a long time fought against the popular custom of informal marriage and arbitrary divorce. This custom was especially widespread among people of the lower classes, whose position was remote from the church hierarchy and from the benefits of legality of all kinds. The spouses left each other without being embarrassed by the decrees of the church law, especially since this law itself did not have complete clarity and definition for church judges, since the laws on divorce, placed in our helmsman’s books, did not completely agree with each other or with the canonical decrees. When resolving cases, confusion arose, and the decrees of the Greek emperors were sometimes indifferently combined with strict canonical rules. In the upper classes, first of all, there was a need to define formal signs of the legality of marriage and divorce; but here, too, the conscience of private individuals and public opinion were content for a long time with the fact that divorce took place with the permission of a simple priest, the spiritual father, although according to the rules, jurisdiction in divorce cases belonged only to the highest hierarchy. Spiritual fathers wrote and issued letters of divorce without difficulty, and, due to ignorance or abuse, there could be no strict church reasoning about the legal reason for divorce. Already in the 18th century, precisely in 1730 and then in 1767, it was necessary to announce everywhere by Senate decrees a decisive prohibition on clergy and clergy writing letters of divorce. Since the time of Peter the Great, state power has been striving to establish on a firm basis the department of divorce cases and to define legitimate reasons for divorce in civil law. Before 1805, decisions on divorce could, at least in many cases, be decided by the diocesan authority, without the approval of the Synod. Since 1805 (Uk. 1 Jan. P.S.Z. N 21585) it has been stated not to carry out such matters without the consideration and approval of the Holy Synod (with a few exceptions). Then in the Charter of Spiritual Consistories of 1841 and in the Decree on Marriage Affairs on February 6. 1850 (N 23906) the rules on ecclesiastical jurisdiction in marriage matters and its delimitation from secular jurisdiction were finally determined. See more new rules in the Constitution. Corner. Court, art. 1011–1016 12. Our law generally recognizes two ways to terminate a marriage, regardless of death (Article 43): 1) recognition of marriages as illegal and invalid, when it turns out that the marriage was illegal at the very moment it took place; 2) dissolution of marriage due to an event subsequent to the commission, when it has destructive force. A marriage is declared invalid: A) When the persons who entered into it did not have the legal capacity to marry at the moment of its commission, i.e. were: in madness (one side or the other); in a prohibited relationship or property; were not free from another marriage; were prohibited from marrying; were not of legal age; entered into a fourth marriage; by rank (spiritual) they could not marry; when an Orthodox Christian married a non-Christian. B) When there was no free agreement, but there was violence in marriage 13 (Zak. Gr., art. 37). The law explicitly mentions violence, but does not mention deception or error. However, there is no doubt that, depending on the circumstances of the case, both can be recognized as grounds for declaring the marriage invalid, because both violate free consciousness and agreement in marriage - an essential condition for the validity of the union. In another part of the legislation, the article of the Code of Penalties (1551) threatens serious criminal penalties for deception in marriage. The question of the legality or illegality of a marriage is always subject to the jurisdiction of the spiritual court. These cases begin: 1. According to reports from officials; 2. On the relations of secular criminal courts; 3. According to complaints and claims of persons having a civil interest in the case, or according to denunciations when the marriage is connected with a crime. But the case of a minor in marriage can only be initiated by the minor spouse himself, as long as he has not yet reached the age of marriage and as long as there is no pregnancy. Cases of violence can only be initiated by a forced person or his parents and guardians, within 6 months from the date of marriage or the cessation of circumstances that prevented the filing of a request (Law. Court. Civil. 445–447). The reason for divorce cannot be the discovery of unchastity of the girl who entered into marriage after marriage, even if it turned out that before marriage she presented herself to the groom as chaste. With the publication of New. Court. Est. 447 Art. Zach. Court. Citizen (803 art. 2 parts X volume, ed. 1857) although not shown to be cancelled, but within the meaning of the journal. State Sov. (see Court. Ordinary edition of the State Chancellery on marriage matters) subject 447 art. recognized as not subject to inclusion in the Constitution. Gr. Court. Instead, in Ort. Corner. Court. Art. 1012 it was decided that cases of marriages committed through violence, deception or insanity of one or both spouses begin in a criminal court, the verdict of which regarding violence or deception is reported to the spiritual court to decide on the validity or invalidity of the marriage. This raises important difficulties in practice. Discussion of a fact or act in the form of criminal liability is not always identical with discussion of it in the form of determining its civil consequences. And so it may happen that a fact recognized as insufficient for criminal imputation may be considered sufficient to destroy the union or agreement based on this fact. This is the reason for the possible substantive clash between the verdicts of the criminal and church courts in cases of violence and deception: this possibility intensified with the introduction of the jury. There have already been many cases where bigamists and triplets have emerged from a criminal court acquitted, even though the very fact of bigamy and triple marriage is indisputable; but the church court, in view of the indisputability of the fact, cannot ignore it when the question of the validity of the marriage arises. Formal Rule 1012 Art. makes the church court dependent on the verdict of the criminal court on violence and deception. But when in such cases the accused has fled from court or died, the criminal proceedings are terminated, and the church court cannot have in mind a criminal verdict on the guilt of the defendant, although the fact has been fully proven. In such cases, the Holy Synod remains to make its decision contrary to Art. 1012. and carry it out with the Highest permission. Cases of insanity at marriage begin in consistories and in addition to the criminal court, when there is no indication of either violence or deception, but it is proven that at marriage the madness was hidden, due to hereditary or organic predisposition. The diocesan authorities (consistory) base their decisions on these cases on the canonical rules and decrees of the Synod (this is the main reason why cases of this kind are subject to the exclusive decision of the spiritual court) and certainly submit these decisions to the Synod for approval. The secular criminal court provides a decision on criminal or improper actions, on forgeries and deceptions, as a result of which a marriage can be declared invalid, but some of these cases (for example, polygamy, incest, violence and insanity), if previously begun in a secular court, cannot be decided by it before requesting an opinion from the spiritual court on the validity of the marriage; and other cases (such as: about marriages with non-Christians, about marriages in the prohibited degrees, about fourth marriages) are dealt with primarily by the spiritual court, and after the decision therein they go to the secular courts (Law. Court. Civil., Art. 449; Law. Court. Ang., Art. 693–696; Establishment. Angle. Court. 1013–1015). Cases concerning the civil consequences of marriage and the rights flowing from it, e.g. the legality of birth is decided by a civil court; but the preliminary question about the validity of the marriage, if it arises in the case, will certainly be sent from the civil court to the decision of the spiritual courts, which civil courts have no right to verify or refute (Law. Court. Civil., Art. 442, 451, 471). A claim for declaring an illegal marriage upon the death of one of the spouses may be brought by interested parties no later than within 2 years from the time of this death (Law. Court. Civil, Art. 452 14). Consequences of a verdict declaring a marriage invalid: the former spouses are separated from cohabitation, either unconditionally or conditionally, in the case of a minority. For those guilty of bigamy, with the destruction of the illegal union, the previous law is restored, unless the abandoned spouse does not renounce the previous marriage and wishes to restore it; and when both parties are guilty, then their former union is restored unconditionally (Zak. Gr. 38, 42). In some cases, after the destruction of a marriage, the person found guilty is condemned to celibacy (such are bigamists and those guilty of abandoning a spouse, as well as, by decision of the church court and church law, those guilty of adultery, Art. 39–42). All children born in an invalid marriage are considered illegitimate. If a marriage is destroyed for deception or violence, then the fate of the children born in this marriage, as well as the fate of the innocent spouse, is subject to the court at the special merciful discretion of the Highest Authority (Law. Gr. 132, paragraph 4. 133). This dependence of ecclesiastical jurisdiction in cases of this kind on the decision of a secular criminal court is in many respects inconvenient and embarrassing for civil interests. When the case is a crime subject to a jury trial, it often unfortunately happens that the fact of the crime, clearly established during the investigation, is ignored by the jury, and by their random or whimsical verdict the criminal is declared innocent and released from trial. Moreover, an absentee decision on the guilt of the criminal is not allowed, and if it is absent or not found, the criminal case is terminated. In such cases, it turns out that it is formally impossible for the church court to make a decision on divorce, no matter how obvious the legitimate reasons for doing so, and the only way out seems to be asking for the Highest permission to proceed and resolve the case, which the Holy Synod resorts to in the most important cases. Such are, for example, cases of polygamy, of marriages involving violence, deceit, or insanity. However, cases of polygamy were removed from jury jurisdiction in 1889. Divorce (Gr. 45 et seq.). The legal grounds for divorce are as follows: 1. Adultery, regardless of husband or wife (Gr. 46, 47). 2. Physical incapacity for marital cohabitation. This vice is considered a reason for divorce only in cases where it is natural or when it began before marriage (48, 49); therefore, the cause of dissolution is considered to be a condition that existed at the very conclusion of the marriage, but which became apparent during the marriage. In cases of this kind, the main basis for the decision is the examination and opinion of medical experts in the local medical administration and in the medical council. 3. A court verdict condemning one of the spouses to punishment, which is accompanied by the deprivation of all rights of the estate or exile to live in Siberia, with the deprivation of all special rights and benefits (Law Civil, Art. 45, paragraph 2 according to Cont. 1893). From this sentence, divorce does not automatically follow, but depends on the will of one or the other spouse. If the spouse follows the convicted person to his new home at his destination, the previous marriage remains in force and can be dissolved only in such a case when the convicted person is sentenced to punishment for a new crime, entailing the destruction of family rights (Gr. Law Art. 50, 52, 53; Statute of Exiles, ed. 1890, 404). Both the innocent spouse, if he does not follow the convict, and the convicted spouse are allowed to ask for a divorce. Certain deadlines are established for convicts to submit requests, namely: for convicts, not before the expiration of the deadlines specified in paragraph 1 of Art. 412 Set. about exile ed. 1890, and for exiled settlers - after two years from the date of entry into force of the court verdict. The request is submitted to the spiritual authorities at the place where the marriage took place, and for schismatics to the court at the place where the marriage was recorded in the registry register. The consistory or court, having made a decision on the dissolution of the marriage, reports this to the subject provincial governments, announces to the petitioners and reports the dissolved marriages to the Synod. By law of 1891, Dec. 30 (Collected Laws of 1892 No. 116) Mohammedan wives, deprived of all rights of state, are allowed to marry other husbands, with the permission of the Mohammedan spiritual assembly or spiritual board. The right to ask for a divorce by court verdict is not limited by time, but it must be assumed that this right continues throughout the entire time of exile of the culprit: if there was no request, and meanwhile the culprit is forgiven or returned by a new court verdict, then the previous marriage remains in force (Zak. Gr. 53). If both spouses are deprived of the rights of the estate, it must be assumed that the marriage remains in force (see Criminal Code of 1818, P.S.Z. N 27.231). Before the publication of the law of 1892, the right to ask for a divorce was granted only to the innocent spouse who remained at the place of residence, therefore, if he did not ask, then the other spouse at the place of exile did not have the opportunity to enter into a new marriage. In addition to those exiled with deprivation of rights, many were exiled without deprivation of all rights, however, the wives of husbands exiled by court verdict were allowed, under certain conditions, to remain in their place of residence, but without the right to divorce. Nevertheless, even in these cases, the involuntary separation of spouses as a result of exile actually dissolved the marital bond and deprived them of a legal way to establish sexual cohabitation, family and home. This gave rise to phenomena that were extremely undesirable both morally and from a state point of view. Those exiled on the spot were encouraged to seek satisfaction of natural needs through debauchery alone and were deprived of the opportunity to start a family, and the remaining spouses were also deprived of hope for married life. Therefore, for a long time, especially since the publication of the laws of 1850, from Siberia, both the spiritual authorities and the civil authorities urgently asked for a change in the law, and the Holy Synod, back in 1853, recognized it as possible to petition that criminals deprived of their rights would be allowed to ask for a divorce if the innocent spouse did not follow the guilty one, giving a signature for it, 2 years after this signature, and that such a right would be granted to the exiled without deprivation of all rights, if the spouses did not follow them. But the State Council found that this issue, due to its importance, requires a general consideration with other parts of the legislation, which can be done when revising the Civil Code. Meanwhile, persistent requests from the places of settlement for permission to marry continued, as a result of which, according to the Synod, the above-mentioned law of 1892 took place. 4. Unknown absence of one of the spouses for 5 years. In this case, the remaining spouse can ask his diocesan authorities for a divorce and permission to enter into a new marriage (Zak. Gr. 54). This rule also applies to wives of lower ranks who fled from service, went missing in war and were taken prisoner if their husbands were not found (56). Russian Orthodox wives of foreign prisoners, with whom they married in Russia, receive permission to enter into a new marriage if the husbands, having been released abroad to their homeland, are absent for more than 2 years (Zak. Gr. 77). A similar rule was established for the wives of foreign Asians remaining in Russia when their husbands were sent abroad (89). For colonists, see the special rule in the Ordinance. Col. 146–148. Regarding the entry of both spouses into monasticism by mutual consent, the law does not provide for divorce (IX. 347, paragraph 1), but there is no doubt that, according to the power of monastic vows, there should be separation in practice and before the law between such spouses, i.e. termination of all marital relations. According to church law (Spiritual regulation approx. on monks, paragraph 5), tonsure into monasticism serves as a reason for divorce. In church law, another reason for dissolution is known - the election of the husband as a bishop (VI Ecumenical 12, 48). The law also mentions the following reasons for divorce: 1) If, after one of the non-Christian spouses (wife) accepts St. baptism, the husband will not agree to have her alone as his wife or will not give a signature about not restricting her in the faith and about the baptism of future children into Orthodoxy, or it turns out that the wife was excommunicated by him from cohabitation before baptism (Law. Gr. 80). A similar case in Art. 81 Wed. 1 Corinth. VII, 12–14. 2) If the newly baptized husband does not want to live with his former wife, unbaptized, v. 83. 3) If an Asian man abroad, having married a Russian Lutheran and gone abroad, does not return to his wife within 2 years - Art. 89. 4) Marriages of Orthodox Christians with Molokans resettled to remote places are dissolved at the request of the former, and they are given permission to enter into a new marriage from the spiritual authorities. Wives of Molokans who have converted to Orthodoxy have the right to the same permission. The wives of those who have voluntarily castrated themselves are allowed, at their request, to marry others. The dissolution of a marriage is accomplished only as a result of a formal request from the spouse who demands this dissolution, subject to the diocesan authorities of the diocese where the spouses (i.e., the husband) have residence (Law. Court. Civil. 443 and note 448). A request for divorce due to unknown absence is submitted to the ecclesiastical consistory at the place of residence, accompanied by a marriage registry. The request must indicate where the spouses lived permanently or temporarily since the time of marriage, whether they lived together or separately, when and where they last saw each other, when and under what circumstances the unknown absence began and when the last information about the absentee was received. In addition, the real estate of the spouses, if any, must be shown, their family and class, occupation and service, parents, if alive, and their place of residence, and brothers, sisters and other relatives of themselves and the absent spouse known to the petitioner, also indicating their place of residence and the real estate belonging to them. If something cannot be shown in the petition, then this must be stipulated in it, otherwise the proceedings of the case are suspended, which is announced to the petitioner, with a deadline of no more than six months from the date of announcement, to complete the testimony in writing or to declare in the presence of the consistory. Based on the data presented, subpoenas are sent through the police to persons who may have information about the absent spouse, the circumstances of his absence and his further fate; according to the content of the subpoenas, they are obliged to deliver the necessary information to the consistory. In addition, in order to question the persons concerned, on established points of question, the consistory can be referred to the provincial government at the place of the last residence of the absentee, at the location of his estate, or at the place of his service and occupation. At the same time, an announcement about the claim is made in the church bulletin, after which, after a year, the case is considered in the consistory, and the marriage is dissolved with the approval of the Synod, with permission for the petitioner to enter into a new marriage. Approval is not required for cases of divorce due to unknown absence from bourgeois and peasant rank; these matters are decided finally by the consistory. Those who are dissatisfied are allowed to complain to the Synod. Upon receipt of news of the location of the absent spouse or the death of one of them, the case is terminated (Law. January 14, 1895, Collected Laws No. 471). Lawsuits for adultery can have a dual purpose: either the personal prosecution of the perpetrator of adultery - this is a criminal purpose, and in this case the case must be started in a criminal court, within 2 years from the time the crime was committed; or these claims are aimed at dissolution of marriage and church punishment - in this case, claims must be brought in the spiritual court (see Ordinance of the Court, Art. 1016 and the interpretation thereof in the publication of the State Chancellery). It must be assumed that both of these claims are incompatible, since it is impossible to allow double punishment in two courts for the same crime. When the charge of adultery is brought against both parties and both parties are guilty, then the dissolution of the marriage does not take place. Church proceedings in these cases have their own characteristics. According to the teachings of the church, adultery is recognized as a reason for divorce (Matt. V, 32; XIX, 9); but according to the rules of St. cathedrals and St. fathers (Soc. Neokes. Law. 8. Basil. Vel. pr. 9, 21, 39, 48; VI Ecumenical. Sob. pr. 87) marriage, and despite adultery, can remain in force and even remain undissolved (Carth. sob. pr. 115) in case of reconciliation of spouses. Therefore, cases of this kind are initiated only through a private lawsuit, precisely for the purpose of dissolution of marriage (Ust. Spiritual Cons. Ed. 1883, Art. 237–239). Therefore, in the case of such a claim, the spiritual court is first of all charged with the obligation to agree to reconciliation between both parties and, only in case of failure, to begin formal proceedings, but during this process not to miss an opportunity to reconcile the parties (Ust. Spiritual Cons. Ed. 1883, Art. 240). To achieve this goal, it was decided that spouses must be summoned to the court for personal appearance (Ordinary Spiritual Consensus Ed. 1883, Art. 241). This circumstance usually serves as a reason for a significant slowdown in proceedings if one or the other party evades appearance and hides or changes place of residence, because ecclesiastical jurisdiction in these cases is determined by the permanent residence of the spouses, and not by the place where the adultery was committed (Law. Court. Civil, Art. 443, paragraph 3). And since the evidence of adultery (acts, witnesses, etc.) is usually connected with the place where the adultery was committed, this gives rise to another difficulty in collecting evidence. In a consistory, in cases of this kind, a court agreement takes place between the parties, in the old form remaining from the 1723 decree on the form of the court, in the form of court notebooks in which the speeches of the plaintiff and defendant are recorded. The actors in this court agreement are usually attorneys. Regarding the discussion of evidence, the spiritual court is constrained compared to the secular one, and it can very easily happen that the criminal court recognizes adultery as proven with the free discussion of evidence introduced by the new statutes, while the spiritual court does not recognize it as proven, embarrassed in its inner conviction by the rule existing for the spiritual court (249 et seq. Art. of the Constitution of the Spirit. Cons. Ed. 1883) of the formal theory. This theory is especially insufficient when applied to adultery, which, by the nature of the action, eliminates the possibility of obvious evidence. The confession of the defendant, in cases of this kind, is not accepted as evidence if it is not confirmed by the circumstances of the case (Zak. Gr., art. 47). This rule has existed only since 1811. Until then, church courts were guided in these cases by the rule of military proceedings that one’s own confession is the best evidence, and therefore obtaining a divorce for adultery was not difficult for spouses who wanted to dissolve their marriage. On the distribution of children between spouses in the event of divorce, ecclesiastical courts usually refuse to make a determination, referring to the civil government; the civil court does not have direct guidance in these cases (see § 20, 22). In response to the decision of the diocesan authorities, the dissatisfied party may submit an appeal to the Synod in due time. A claim for divorce for incapacity can be initiated no earlier than 3 years after the marriage (Zak. Gr., art. 48). It happens that after some time, divorced spouses, having repented, ask to restore their marriage. In such cases, the Holy Synod did not refuse its permission. A marriage ends with the death of a spouse or divorce. In the first case, the surviving spouse is considered a widower or widower. In the latter case, a divorced wife, although after the death of the spouse from whom she was divorced, has no right to be called his widow. Upon divorce, the spouses (except for cases in which the perpetrator is condemned to celibacy) are given the freedom to enter into a new marriage. To certify this freedom, in the old days they were given the so-called open decree. Separation from the table and bed is not allowed according to our church laws. But from the old church-judicial practice it is clear that in the 18th century and in the first years of the present, in some divorce cases, the consistory, although they did not see any reason for divorce, but due to obvious disagreement between the spouses, they were allowed to live, until reconciliation, separately, “in proper chastity,” with the fact that, until they are reconciled, neither one nor the other is allowed to enter into another marriage, i.e. “They will remain celibate forever,” as the sentences put it. Another expression used for this concept was: “to be in unity, and not to enter into another marriage.” Such decisions were also approved by the Holy Synod. In extracts under such decisions, the Sequence was usually cited. Corinth. VII. 10 and 11 and Kormch. 102 Carthage Ave. cathedral See Rozonova History of the Moscow Diocesan Administration. Divorce cases 1766, 1776, 1805 On schismatic marriages in the Laws of Civil Proceedings (Article 440, note) and in the Charter of Civil Proceedings (Articles 13561–13569) it is decided: 1) Cases regarding rights arising from marriages concluded between schismatics, as well as cases regarding the dissolution of these marriages and their recognition as invalid, are subject to civil court. 2) The cases specified in the previous article are carried out in district courts according to the general rules of the Charter of Civil Proceedings, in compliance with the rules established in the following articles. Note. In areas where judicial statutes were not put into effect on November 20, 1864 in their entirety, these cases are carried out in the combined chambers of civil and criminal courts. 3) The jurisdiction of district courts over marriage cases of schismatics is determined: a) in cases of personal and property rights arising from a marriage, as well as in cases of divorce due to adultery or inability to cohabitate, - according to Art. 1339 of the Charter of Civil Procedure; b) in cases of declaring marriages invalid (Article 13) - at the place where the marriage was recorded in the register; c) in cases of divorce from persons deprived of all rights of estate - at the place of residence of the petitioners, and d) in cases of divorce due to the unknown absence of one of the spouses - at the place where the marriage was recorded in the registry register, if the jurisdiction of the case cannot be determined on the basis of Article 1451. Est. Citizen Sudopr. 4) The rules on the conduct of matrimonial affairs contained in Art. are applied to the cases mentioned in the previous article. 1340–1353 Est. citizen Sudopr. In addition, in cases referred to in paragraph d of the previous article, the rules contained in Art. 1451–1460 of the mentioned Charter, and in relation to cases of divorce due to adultery or the inability of one of the spouses to cohabitate in marriage - the rules established in Art. 47–49 Civil Laws (vol. X, part I). 5) In the event of a doubt arising during the proceedings on the invalidity of a marriage regarding the degrees of relationship or property, a conclusion from the local spiritual authorities may be required. 6) The case for invalidating a marriage concluded before one of the spouses reached the age of majority established for marriage (Vol. X, Part I, Art. 3) can be initiated only by the spouse who entered into marriage during this minority. This is allowed only until the spouse reaches the age specified for marriage and only in such a case when the marriage did not result in the wife becoming pregnant. 7) The right to open a dispute about the validity of a marriage terminates after two years from the date of death of one of the spouses. 8) The inability to cohabitate in marriage is certified by examination at a local medical institution. Matters regarding marriages of Christians of other faiths are generally handled by the spiritual governments established for each. If the marriage is mixed and one of the parties is of the Orthodox faith, then the decision on the validity of the marriage belongs to the spiritual court of the Orthodox Church unconditionally. If in a mixed marriage both parties are non-Orthodox and married in two churches, then the decision on the legality and event of the marriage belongs to the court of the confession whose priest performed the first wedding, and the decision on divorce belongs to the court of the confession to which the defendant belongs. If the mixed marriage is between Protestant and non-Christian parties, then the decision belongs to the Protestant court (Law. Court. Civil. 453–456). Wed. Mn. State Sov. 1891 (Collected Decree No. 873) on amendments to Articles 196 and 204. Regulations on marriage in the Kingdom of Poland. According to Const. In. Spanish The Roman Catholic spiritual court in marriage matters has 3 instances. In the first, the bishop with his consistory judges, in the second, the Archbishop with his consistory; every marriage case goes through both instances through an audit procedure without appeal, and if the decisions in them are dissimilar, then an appeal to the Pope is allowed (Const. In. Ex. 60). In the Evangelical Lutheran Church, the decision of marriage matters belongs to the local consistories, at the place of residence of the defendant (with some exceptions, see Const. In. Isp. 444, 447, 530). An appeal to the General Consistory is allowed (Articles 461, 559). An oath in cases of this kind is not allowed, and confession has limited power (545, 546). The decision is preceded by conciliation proceedings. Divorce is carried out in a special ceremony, with the taking away of wedding rings (548). On divorce cases among reformers, see Art. 849, 851, 881; among the Armenian-Gregorians 983, 940 on Cont. 1890, 985. The rules concerning the nullity and dissolution of marriages are determined in each church by its statutes; in 62 Art. Zach. Gr. it was decided that the prohibitions on marrying under duress, insanity, without legal authorization and in the presence of a previous marriage apply to marriages of all Christian denominations in general, but it was immediately added: “to the extent that these laws have decreed for those denominations”; therefore, the question of whether the violation of one or another prohibition is considered a legitimate reason for cassation of a marriage is still resolved in accordance with the rules of the church. Prohibited degrees of kinship are determined for each church by its charter (Article 64 of the Civil Code). According to the statutes of the Lutheran Church, marriages of prohibited kinship and affinity, with pagans, double marriages, marriages with participants in adultery and marriages without the consent of the subject authority are recognized as invalid if a dispute is brought by it (Const. In. Isp. 246, 248). Legal reasons for divorce: violation of marital fidelity and proven loss of innocence hidden from the husband before marriage; malicious abandonment; 5-year unknown absence; aversion or inability to cohabitate; refusal to fulfill marital duties; incurable clinging disease; madness; depraved life, cruel treatment and insult; intent to deprive of honor; unnatural vices, serious crimes subject to the death penalty, substitute punishments or exile (251–264, 265 according to Cont. 1890). Together with the decision on divorce, it is determined which party should give all or some of the children (266). Divorced spouses can remarry each other by performing the marriage ceremony again (268). For special regulations for local churches, see Art. 851, 881, 882 on Cont. 1890 For the Armenian Church 938, 939, 985 item 6. Concerning divorce in mixed marriages, conflicts may arise between the Orthodox and Roman Catholic church authorities, since in both churches marriage is recognized as a sacrament, but church marriage law is not the same. Such are, for example, the following cases. Due to the deprivation of the rights of the husband's estate, his marriage was dissolved by virtue of state law, and the wife, declared free, was dissolved by the Roman Catholic confession. The Orthodox Consistory demands that the R.-Catholic make a corresponding mark in the metric records, and is refused, since the R.-Catholic. The church does not allow divorce. It is difficult in this case to refute the R. Catholic. consistory. The Orthodox consistory recognizes as invalid a mixed marriage performed in one Catholic region. churches without Orthodox weddings. It is impossible to demand from the Catholic R. consistory of similar recognition and disposition. A similar case arises when, at the time of marriage, both parties were Catholic. confession, but subsequently one of the spouses converted to Orthodoxy and, following a lawsuit, his marriage was dissolved by the Orthodox church authorities. Among Jews, the dissolution of marriages occurs with or without the return of the dowry and is carried out by the decision of the rabbi or his assistant (Const. In. Isp. 1089). In case of confusion, the highest authority is the Rabbinical Commission under the Ministry. Int. Cases (1134). Among the Mohammedans, marriages are dissolved by mullahs, to whose decision complaints are submitted to the Spiritual Board and, through the Governor, to the Ministry. Int. Cases 1143, 1145, 1211, 1230. Divorce is recorded in the registry; its act is a letter of divorce signed by an imam or mullah. (Zak. Gr. 92–95). Among the Kalmyks, marriage affairs are managed by the Lama, according to the rules of the Buddhist religion (Constitution In. Isp. 1264, 1283, 1284. Law. Gr. 99). In recent years, voices have often been heard in the liberal organs of our press demanding the secularization of the church court in matters of marriage and matters arising from marriage. These opinions, obviously, did not arise from popular soil, but were inspired from outside. They rest only on the abstract principles of theory and are usually accompanied by polemics against the so-called clerical trend. But it seems that long-standing historical experience has already shown very clearly how dangerous are any reforms that proceed from abstract principles and are not consistent with the practical conditions of the country and the matter itself. The litigation between church and state and between church and state jurisdiction, which runs throughout history in the West and is now emerging with renewed vigor, has no meaning in our history and in our reality, and therefore the concepts and terms transferred to us from this process alien to us receive an artificial and false meaning, and only mislead our minds. We have nothing similar to this litigation, the church is in unity with the state - and thank God. To separate one from the other artificially would mean to disfigure what really exists, and to do a disservice to the state, the church, and the people. With Peter's reforms, the last remnants of legal, formal antagonism between the ecclesiastical and secular areas of court and administration disappeared. What then is the need for us to squeeze into civil courts subjects of ecclesiastical jurisdiction, inextricably linked with issues of ecclesiastical law, when our ecclesiastical courts, being under the continuous control of the civil government and closely connected with it, themselves have the significance of state courts? To violate their legal jurisdiction with innovations aimed at nothing more than the secularization of the very idea of ​​marriage would only mean to unnecessarily introduce a dangerous temptation into popular concepts, to produce irritation in the minds that has no meaning, and to give rise to complaints against the state that it has given questions of church law into the hands of people who are indifferent to it or those of other faiths. The above requirements and opinions were reflected, however, in the draft drawn up by the committee established at the Synod for the main provisions of the spiritual-judicial reform. The Committee proposed the following changes. Noticing that the activity of the ecclesiastical authorities in those marriage cases that are handled in criminal courts is not a judicial, but an administrative function, the committee projected the extension of the principle of the law of 1850 to all criminal matrimonial cases, i.e. subordination of cases listed in Art. 1014, 1015 Charter Angle. Court., the procedure specified in Art. 1013, with the change that after the criminal trial these cases are sent not to the ecclesiastical court, but to the diocesan authorities, i.e. to spiritual and administrative power. The Committee proposed to subordinate cases of divorce due to unknown absence to civil courts so that, upon completion of proceedings regarding unknown absence in a civil court, these cases would go to the diocesan authorities for divorce. It changes the procedure for the proceedings on divorce cases due to the inability of one of the spouses to cohabitate as follows: the initial application for divorce is made to the bishop, and if his attempts to reconcile the spouses are unsuccessful, the case goes to the civil court, which resolves the issue of incapacity through the courts and informs the bishop to dissolve the marriage. The Committee recognized the existence of dual jurisdiction in cases of adultery as abnormal, and the proceedings of these cases, as well as cases of inability to cohabitate, are inconvenient for spiritual courts. He proposes to subordinate these cases to one secular court, if the bishop fails to first reconcile the spouses, with the fact that at the end of the criminal trial, the case will be transferred to the bishop for divorce, if he again fails to reconcile the spouses. Moreover, the committee proposed to establish a rule that cases regarding the legality of births and certification of the validity of marriages, when these facts seem doubtful, are carried out in a civil court, which requires the necessary information from the ecclesiastical authorities. All these assumptions are analyzed in detail, according to the principles of church law, in the book: The proposed reform of the church court. First issue (St. Petersburg, 1873). From the opposite point of view, Mr. Orshansky was a zealous defender of the committee’s assumptions, in the articles: Spiritual Court and Family Law (Journal of Civil and Trade Law, 1872, No. 3 and 4), and Reform of the Civil Court and Marriage Law (Journal of Civil and Corner Law, 1873, No. 6, 1874, No. 1). § 12. Personal relations of spouses. – The need for unity of power in the family. – Roman and German concept of the power of the husband. – Subordination of the wife under Western law, especially under French law. – Uneven marriage in German law The internal relations of family members, based on a moral principle, are least of all subject to the definitions of the positive law, which cannot, by its nature, serve as a measure of these relations, which extend to the whole person, and not to his actions known only. However, sooner or later, there is a need to touch upon these relationships with a legal definition, when they deviate from the correct state, when peace is disturbed in them and the question of boundaries arises. In any natural union, connected with the communication of life and everyday life, the balance of personal relations is achieved by the unity of power, which the law necessarily confirms for the person to whom it belongs by nature. So in the fullest marital communion of husband and wife, one of the two must have power, one of the two wills must have the predominance necessary to maintain peace in the union. This power, both by nature and by law, belongs to the husband, and the law, of necessity, cannot choose the middle path, so as not to cause fruitless and irritating interference in the relationship of the spouses, and therefore the power of the husband in the law necessarily receives the property of unconditional power: no matter how difficult this power may be for the wife in a particular case, the wife can free herself from it only with the destruction of the marriage union. By the nature of the law, it is impossible to either demand or expect from it a weakening of power in a marital union: the softening of power depends not so much on the law as on the softening of social mores and on changes in social concepts. But in determining the accessories of this power, the law can be more or less severe, and it is remarkable that where the law is more included in the definition of these accessories, there, at least these definitions had in mind the limitation of the husband’s power, they thereby express even more clearly its unconditional meaning (for example, when the law determines at what age the husband has the right to separate young children from the mother, he thereby, so to speak, legitimizes one of the most severe manifestations of male dominance). In Rome, under the strictness of ancient law, the wife was in the power of her husband (in manu) on an equal basis with her daughter; and when strict law lost its power, this power weakened. Although the wife remained tied to the place of residence and jurisdiction of her husband and was deprived, during her husband’s life, of power over the children, she kept her property in full control. The husband's power over her was demonstrated most clearly in those cases when she gave her husband a legal reason for divorce, and the husband was not subjected to any punishment for the murder of his wife caught in adultery. Church law strengthened the power of the husband over his wife in idea, and therefore in law: in the law such names were associated with it as, for example, dominium, potestas, imperium maritale. The German idea of ​​family relations connected with male authority the concept of guardianship (mundium) and representation: in this sense, male authority is defined in the newest legislation. Spouses are given an equal share of communication in marriage, so that the wife does not exist for her husband, but both exist for each other; but the husband is made the head of the marriage union and family (Pr. Ldr. II. 1. 175, 184. Oest. Ges. 88–92); the wife is obliged to obey her husband (Code N. 213). The predominance of the husband is reinforced especially by French law. This direction of French law was indicated above regarding the adultery of a wife, but both in daily life and in the disposal of property, French law binds the wife at every step to the will of her husband, recognizing her will alone as insufficient for many civil actions. The wife cannot seek or answer in court, or in her own case, without the permission of her husband (if the husband refuses his permission without a good reason, permission is given by the court). A wife cannot give, alienate, pledge, acquire property by deed, nor assume personal obligations, without the participation of her husband or without written permission from him (the wife can, in case of an incorrect refusal, demand this permission from her husband in court, and even then not always). Without the consent of the husband, he cannot enter into a separate trade, but, having entered, he already has the right to freely make trade transactions. The law allows her only free disposal of the estate in a will and free disposal of the management of her own estate, if she negotiated this last right for herself under the marriage contract (Code N. Art. 215–226) 15. Thus, in France, a married woman becomes incapable of performing the most important civil acts; an adult girl or widow can act freely, but upon getting married she loses complete freedom to dispose of property, subject to the authorization of her husband. Even if her husband is in unknown absence, if he is a minor, or is declared insane, or is limited in civil rights for a crime, even in this case the wife’s freedom is not restored, and she is obliged to ask the court for permission that the husband himself cannot give (Code N. 218, 219, 221, 222, 224). This legal subordination of the wife to the husband, arising from common law, from opinion, more than from theoretical and moral considerations, is justified by some jurists on the ground that it is necessary to maintain unconditional peace in the common home; but such a justification is hardly valid. On the contrary, in this legal subordination lies rather the germ of contradictions and bickering, which, leaving the family circle, take the form of a legal litigation between husband and wife - a litigation in which each side seeks to catch the other side, strives to achieve its own separate goal, of course, to the detriment of family peace and internal justice. The relations of the family circle, which, by their nature, should be based on a feeling of mutual goodwill and shun material weight and measure, move into the realm of judicial casuistry. For example, the law says: a wife must live with her husband and follow him everywhere where he resides, and the husband is obliged to support her in a manner consistent with his rank (Article 214 Code N.). Spouses, if they wish, live in different houses, but when the husband wants, he demands that his wife live with him. The wife refuses. The question arises: is it possible to force her by force, is it possible to send her with the gendarmes to her husband? Can her husband lock her in the house? The wife presents the reasons for the refusal. Questions arise: to what extent these reasons should be recognized as legal, the letter of the law, its spirit and purpose are analyzed, and the possibility of a wife’s legal evasion of cohabitation with her husband is analyzed. So, for example, in French practice it is accepted that if the husband does not have a permanent place of residence, but moves from place to place, the wife has the right to evade, because the article of the law uses the word: residence, residence. It is accepted that if the husband cannot provide his wife with a decent apartment in his premises, with amenities corresponding to his means, the wife can evade, because the article of the law says that the husband must support his wife decently. Marriage is associated with the inclusion of both spouses under one right, the communication of personal and political rights, the rights of state, name, honor, title, rank. The husband communicates all his rights to his wife. The new law strives for unconditional recognition of this principle, which the church adhered to; but this beginning did not soon achieve recognition. In the Middle Ages, with the political alienation of classes, the concept of uneven marriage was established. The marriage of a free person with an unfree one was considered a shameful marriage, so that the free party could also lose his freedom through this marriage. But when the distinction between slaves and freemen had already disappeared, another distinction remained for a long time between the noble and the ignoble, between the higher and lower nobility. In Germany it was completely more noticeable and is still retained in sharp lines. This difference was expressed especially in marriage. In the Middle Ages, between knightly and non-knightly blood there was an impassable middle (ritterbürtigen, nicht ritterbürtigen), and the union of one blood with another was considered uneven; there could be no communication of rights in it, and the birth of such a marriage did not transmit the ancestral right of knighthood. Chivalry became obsolete with changes in military organization and military service; Roman law, upon its revival in Europe, adopted in judicial practice, contributed greatly to the establishment of the concept of the unconditional communication of rights in marriage, but it could not overcome the opinion that had taken root among the highest German nobility, the ruling dynastic families (Reichständische Häuser), about the inequality of marriages with members of the lower noble families: only dispensations of the imperial power were sometimes mitigated practice is the strict beginning of the inequality of such marriages. With the decrease in the number of noble houses in Germany and with the destruction of the German Empire, this strict concept also weakened, but has not yet lost its force. And now, for the completeness of marriage in the highest nobility, equality of estates (Ebenbürtigkeit) is also required, although this rule is supported not so much by positive law as by private statutes of individual clans (Hausgesetze). Where this condition is not present, the marriage is considered uneven, i.e. the wife does not fully share the class status of her husband, the children do not fully inherit his title and estates, which are assigned a generic meaning (Stamm-Fideicommiss und Lehengüter). These conditions of inequality can be stipulated in the contract at the very conclusion of the marriage, and in this case the marriage is called an incomplete marriage, from the left hand or morganatic (Ehe zur linken Hand, matrimonium ad morganaticam s. ad legem Salicam). In Prussian law (Ldr. II, 1; 30–33) until 1869, there was a rule that for the marriage of nobles with persons of the peasant and bourgeois class, the prior consent of three members of the clan and the permission of the royal authority were required. § 13. Personal relations of spouses under Russian law. – Introducing the wife to her husband’s condition. – Cohabitation of spouses. – The husband’s right to demand his wife. – An exception for the wife of a convicted, exiled or deported person. – The right of the husband to follow his wife. – The moral and guardianship responsibility of the husband. – The wife’s right to maintenance. – A wife’s duty to obey her husband Husband and wife are one body. The husband is the head of the wife. A wife does not leave her husband. These are the main principles from which the provisions of our legislation flow. A husband of the highest rank informs his wife of the advantages of his rank, his name and his rights. This message is decisive and irrevocable. It is not canceled if the husband subsequently loses his rights as a result of a crime (Gr. 100, 101; Legislative Constitution, Art. 11). This rule does not apply to women deprived of the rights of state and limited, for the period of exile, to their place of residence in Siberia. The husband does not restore lost rights to such a wife and does not inform her of the rights of his title. Est. about link. ed. 1890, art. 409 et seq. On the contrary, the wife does not inform her husband of her highest rank, but is not deprived of her rights by birth (IX, 5, 11, 44–46, 53, 539, 542). A hereditary noblewoman, upon marriage to a non-hereditary nobleman, retains her noble estate, but again acquires such estates with the restrictions specified in Art. 328–330. IX volume; These restrictions, however, lose all meaning with the separation and redemption of the peasant plot. Regarding the communication of different rights and advantages based on service and status, see Vol. III of the Constitution. servant govt., art. 530–538. Adj. to Art. 525 Set. pass. ed. 1890, art. 45; Pos. oh the view. for residence June 3, 1894, Mn. State Sov., paragraph VII. Spouses are obliged to live together (Article 103 of the Law). The wife's residence is assumed to be where the husband's place of residence is supposed to be (Constitutional pas. ed. 1890, art. 24; Regulations on the residence permit. June 3, 1894, art. 11, 36); In our law, the rule on the joint residence of spouses is expressed unconditionally in the same unconditional force for husband and wife 16. Without a doubt, the law does not unconditionally insist on the obligatory observance of the rule at all costs; therefore, a husband and wife, if by necessity and by the good will of each they live in different places, do not act contrary to the law. The law only prohibits all kinds of acts (for example, a will of a third party) tending to the unauthorized separation of spouses. The wife follows the place of residence of her husband (this rule is also mandatory for the Russian wife of a foreign subject: Zak. Gr., 102); therefore, when relocating, when changing service, and in general when changing residence, the wife must follow her husband (cf. Article 442 of the Constitution of Exile, ed. 1890). If she evaded this, the husband has the right to demand his wife and force her to live with him. It is difficult to allow a different interpretation in our law. According to other legislation, one can also argue that it is unfair to force a wife to cohabit with her husband by material force when she evades cohabitation, and that this evasion can serve as a reason for the husband to demand separation or dissolution of the marriage. With us such reasoning is impossible, and the marital cohabitation of a wife with her husband, at the request of the latter, is restored unconditionally. No matter how harsh the husband’s treatment of his wife during cohabitation, our law does not open a direct way for the wife to ask for release from this cohabitation or to avoid returning to her husband. Until recently, except for death and formal divorce, only a court verdict depriving the husband of all the rights of the estate for a crime freed the wife from the obligation to follow him to his destination (103, 104 Zak. Gr.); where there was no destruction of the husband's family rights by court verdict, the wife could not take advantage of such a benefit, and therefore people exiled without deprivation of rights could demand that their wives follow them. Only in 1859 was the benefit given to state peasant women, and in 1862 was it extended generally to the wives of all those husbands who were resettled by sentences of societies or by decisions of world institutions. Wives are exempt from the obligation to follow such husbands, even at their request, in the following cases: 1) if the wife suffers from an incurable illness, she can remain in place, with the permission of the provincial government; 2) due to the husband’s cruel treatment or his clearly depraved behavior, permission for the wife to remain in place depends on the volost court (for peasants), or on the court of first instance, with the approval of the governor. Where new judicial statutes or some magistrate institutions have been introduced, requests from wives to leave them at their place of residence due to cruel treatment of their husbands or his depraved behavior are subject to consideration by congresses of magistrates, and where the previous procedure remains - courts of the first degree; requests from persons of rural status are considered everywhere in volost courts. In rendering the verdict, the court is guided by the rules of the Conscientious Court (Charter on exile, ed. 1890, Articles 255, 256; but in the Charter on Colonies - Article 468 according to Prod. 1868 - there is a rule that apparently completely frees the wife from the obligation to follow her husband, who is resettled by the verdict of society). Thus, for the first time, we had a legal opportunity for a wife, without dissolution of marriage and family rights, to evade cohabitation with her husband; but this benefit was given mainly to wives from the former tax-paying classes, for only persons from these classes can be exiled by sentences of societies; however, indirectly and partially, this benefit also applies to persons belonging to non-taxable classes; for the same rules apply to cases of removal from places of residence by administrative order and by special Highest commands (see Constitution of exile ed. 1890, art. 263, note; General Pol. on Peasants, art. 158). In the new edition of these decrees, as set out in Art. 254. Est. about exile ed. 1890, it is said that for those sentenced to exile - not only with the deprivation of all rights, but also with the deprivation of special, personally and according to the status of the assigned rights and advantages - to live in Siberian or other remote provinces or with appointment as settled workers, spouses who did not participate in the crime can either follow or not follow into exile, at their own request. It is forbidden for a husband to be accepted into monasticism while his wife is alive, unless both wish to take monastic vows. IX. 347. Married foreign women are not accepted into Russian citizenship separately from their husbands. IX. 1014. The husband does not follow his wife’s place of residence, and if he leaves his wife, she has the right to demand that he take her in and support her 17 . According to the Code of Laws published in 1857, when exiled to Siberia with the deprivation of the rights of the wife of a tradesman or peasant, the husband was allowed to follow her only by transfer from the society to which he belonged (for a man constitutes a tax-paying responsible unit in his society). But in 1862, it was decided that husbands who did not participate in the crime, during all types of exile and resettlement of their wives (hence, and during resettlement without deprivation of rights), follow them solely of their own free will and are not obliged to ask for certificates of release from society (see the Constitution on exile, ed. 1890, art. 257, 263). If a woman exiled with deprivation of her rights, having entered, during the period of exile, into the class of state peasants, marries a free man and cannot move out of Siberia herself, then the husband is obliged to subscribe so that he does not move from Siberia; therefore, in this case, the husband follows his wife’s place of residence. Est. about exiles, ed. 1890, art. 414. If both spouses are in hard labor, then one of them, whose term of work ended earlier, must live with the remaining spouse until the expiration of his term. The husband is obliged to love his wife and provide her with food and maintenance according to his condition and ability (Zak. Gr., art. 106). The rule of love is, no doubt, difficult to give positive coercive force in law; but when oblivion or violation of the duty of love between spouses comes to actions that infringe on the honor, safety and health of the spouse, the law increases the punishment for such actions (1451, 1583 Art. Code of Punishment). The attitude of love is taken into account in the case when spouses have to testify against each other in court. According to the criminal law (Code 1595), a spouse guilty of adultery is subject, upon the complaint of the offended spouse, to imprisonment in a monastery or prison for a period of 4 to 8 months and, in addition, to church repentance. In the previous Charter of Sudopr. (Law. Court. Civil., ed. 1892, art. 192 p. 4) it was said that a wife cannot be a witness against her husband by reference from the opposing party, but it does not say that a husband cannot be a witness against his wife. In the new Charter the Court. Gr. (Article 84, 371) it is stated positively that the spouses of litigants are not allowed to testify, and in the Ort. Corner. Court. (Articles 95, 96, 705, 706) that the husband or wife of the defendant can exclude themselves from testimony, and if they do not wish, they are interrogated without an oath. In case of challenge, the husband and wife of the victim of the crime are not allowed to testify under oath, even if they did not participate in the case. Personal grievances between spouses, according to some lawyers, are not subject to prosecution (see Lokhvitsky. Course of Criminal Rights, p. 475). The husband is obliged to support his wife, but the law does not provide a specific form for the wife's claim against her husband for lack of maintenance or refusal of maintenance, although there is no doubt that in extreme cases such a claim cannot be rejected. In other systems of civil law, the obligation to provide maintenance is expressed in a special claim for maintenance (aliments, dette d'aliments, action d'aliments), and the court is empowered to determine this maintenance by measure and quantity. Our law does not contain general rules and guidelines on this subject; it is mentioned only in special cases. So, in Art. 255 and 256 Set. about exile ed. 1890, it was decided that the court, allowing the wife of a husband resettled by administrative order to remain at his place of residence, assigns the amount of maintenance to the wife from the husband's estate. When a noble estate is taken into custody from someone deprived of nobility by court and exiled, then half of the income is given to the wife, if there are no children. IX, 332, paragraph 4. On the assignment of maintenance to the wife and family of someone who is unknown abroad (see appendix to article 8, note 4 according to Ext. 1891, Legislative Comp.). See also rule 89 art., Zak. Gr. about foreign Asians who, when leaving Russia, are required to provide maintenance for their wife remaining in Russia. In practice, there are cases in which the State Council, regarding the separation of spouses of the noble class, allowed the Assembly of the Nobility to determine the amount of maintenance that the husband should provide to his wife until the reconciliation of the spouses (for example, the decision of January 11, 1840, in the case of the Engalychevs). A) In general, it is recognized that monitoring the performance of family responsibilities does not belong to the department of judicial institutions; On this basis, courts usually rejected the wife’s demand to force her husband to provide her with maintenance both in the case when the spouses live together and when they live separately, if their separation is unauthorized. If the husband gave the wife an obligation to pay her the required amount for maintenance in her separate residence, such an act cannot have a civilly binding and exacting force against the husband, as an act tending to the separation of the spouses, but the wife, without a doubt, has the right to demand from the husband that he accept her for residence and maintenance (cf. Sat. Sen. Resolution, vol. 1, N 672). B) Does a wife living separately from her husband have the right to demand maintenance from him, and should we take into account the wife’s innocence in excluding her from cohabitation with her husband when discussing this claim? In some Senate decisions we find a negative answer to this question (see Cass. decision 1868, N 462, 526). These decisions state that all duties unconditionally assigned to a husband and wife are inextricably linked with the same unconditional duty to live together, and the distribution of these duties in the event of separation of spouses due to marital disagreements is not determined by law. The Senate recognizes this type of claim as essentially a claim for the issuance in favor of the wife of a part of the income received by the husband, therefore, a claim for property, which does not take place under the existing rule of Art. 109. Zach. Gr. on the separation of marital property; moreover, the husband’s means may be subject to change due to various accidents, therefore, it is impossible to determine with a figure how much he should and can annually allocate for the maintenance of his wife (Cf. Markov’s article in the Journal of Gr. Law 1872, No. 6, p. 1058). Such a decision is almost stricter than the law itself, which, however, presupposes the joint residence of the spouses, defining the husband’s obligation to support his wife, but at the same time presupposes the husband’s love for his wife and care for her and the inseparability, not only physical, but also moral, of the marital union and the responsibilities associated with it. All these assumptions must, in all fairness, be taken into account together. If the law assumed perfect equality of personal rights in a marital union, it would be possible to deny in the person of one member any claim on the other regarding mutual duties when the union is physically separated. But the law does not allow such equality and gives the husband power over his wife and obliges the wife to obey her husband. By virtue of his power, the husband can (although he does not have the right) send his wife away, drive her out of the house, and leave her without food. What then should a wife do if she wants to live with her husband, but is not accepted for residence? Obviously, there is a violation of the wife’s legal right, but how can it be restored? And if we give room to the wife’s claim for forced placement with her husband, how will we ensure the execution of the placement sentence? And after the announcement of the verdict by which the husband is condemned, he remains with his former power in all its fullness and with the same opportunity to expel his wife or leave himself, leaving her. In this case, the government power cannot unconditionally pursue the execution of the sentence, because then it would have to place its own tribunal and guard at every hearth and in the middle of the house to act forcibly with an imperious hand: this is an unthinkable thing for government power. Therefore, I think that a claim for maintenance cannot be allowed only when the wife herself refuses to live together with her husband; but if this is exactly what she demands, and her husband stubbornly refuses it, then there is no other way than to determine the amount of maintenance from her husband until he takes her to him. The obligatory monetary obligation ceases the minute the husband takes his wife back to him, and this very obligation will serve as the only practical means of forcing the husband to accept his wife for residence. It is certainly impossible to deny such a claim without fear of being denied justice. Let's imagine the following case: a husband, having left his wife in poverty, goes far away to his estate, lives there in luxury and debauchery, and his wife does not respond to all her requests and refuses to send her money for travel to him? Is it possible that even in this case the wife’s claim will remain without any consequences? It is unreasonable to believe that the wife’s claim is essentially a claim for the allocation of income. This is a claim for a special right, which can hardly be confused with the right to property, namely the right to maintenance or alimony. This right is not a property right and is not an obligation, initially determined by its number and measure, but a right arising from certain family relations, with which the obligation of care and nutrition is associated. The claim for the exercise of this right necessarily requires turning into a number and measure when the guilty person, without denying the essence of his obligatory relationship, evades the actual fulfillment of the duty and makes it impossible for the other party to fulfill it. Only here the number and measure, by the very essence of the relationship, cannot be determined once and for all, constantly, because they really depend on the economic means and everyday situation of the guilty person; but the need to change the number and measure, depending on the circumstances, does not serve as a reason for a complete refusal to determine the duty by number and measure. The court rightly argues in the above decision that it is impossible to recover in favor of the wife the amount calculated for the entire time she spent living separately from her husband, 5 years before the commencement of the claim, because a claim of this kind goes beyond the limits of immediate needs and is, precisely, a claim for property, but for the future, it is fair, under the above conditions, to oblige the husband who refuses to take her in to support his wife; even if it were proven that the wife, abandoned by her husband, was forced to enter into debt for daily food, it would be fair to hold the husband responsible for this debt for the wife. In accordance with this, in later Senate decisions the position is expressed that a wife can be awarded maintenance from her husband to the extent corresponding to his means, as determined by the court, when she does not live with him through his fault, and not through her own, and does not evade living together with him; payment of money for the maintenance of the wife is obligatory for the husband as long as he avoids living together with her (Cass. decision 1872, N 407, 1873, N 1385, 1874, N 689, 1876, N 41, 1886, N 29). Cass. decide 1890, No. 18. In the Grinevich case, questions arose: 1) does a wife living separately from her husband have the right to demand maintenance from him when the husband declares in court his readiness to accept the wife into his home; 2) what means of a husband should correspond to the maintenance determined by the court for a wife living separately from her husband: those that he had at the time the wife filed a claim for maintenance, or those that the husband has at the time the court made a decision, and 3) which of the spouses has the priority right to raise children with them when the spouses live separately. On the first question, Citizen. Cass. Dep. found that, when the husband declared, during the proceedings, to award his wife maintenance, consent to accept the wife into his home, the court, entering into the assessment of this application, according to the circumstances of the case, is not deprived of the right in each given case not to recognize the husband’s statement about his desire to accept the wife as a truly expressed desire, implying a willingness to change those relations that, through the fault of the husband, have already led the wife to a separate life, to eliminate the reasons that caused the removal of the wife. To the second question of Citizen. The department responded that the material means of a person do not represent a constant value and are subject to change; therefore, the court’s determination of maintenance, the amount of which must correspond to the actual means of the person obligated to extradite him, is determined by the amount of these funds at the time the decision is made. Dependence in which, according to the force of Art. 106. t. X h. I, the measure of the wife’s maintenance is from the funds of the obligated husband, and even determines the reduction of the maintenance already determined by a court decision, if subsequently there is a reduction in the source from which it was assigned. The third question, in the opinion of the Senate, should be resolved in the sense that the primary right to raise children belongs to the father, as the head of the family, until the court decides that, due to special circumstances, the benefit of the children requires their education by the mother. In Legal Vestn. 1873, No. 5, the decision of Moscow was published. Court. Chambers in the Trukhin case, which recognized that a wife has the right to demand from her husband decent maintenance and food only when living together with her husband. In the case, it turned out that the plaintiff’s husband was declared crazy, and his estate was taken into guardianship, but his wife did not live with him for 25 years before he was declared insane, and when it happened, she demanded 1/3 of the income from his property from the guardianship for her maintenance. The Chamber's decision stated that the wife's right to maintenance stems from the personal relationship of the spouses, but is not the right to a share in the spouse's property during his lifetime. However, in the same case Trukhina (December 19, 1873). Kassats. The Senate confirmed the right of a wife who did not live with her husband during his insanity to receive funds from the guardianship for her maintenance from her husband’s estate. Moreover, on the issue of the amount of this maintenance, the Senate decided that although the law does not determine the amount, it establishes the data within the limits of which maintenance can be awarded, it is the law that says that the husband is obliged to support his wife in accordance with his condition and ability. Therefore, courts can only require litigants to provide the court with information about the husband’s condition in the event of a dispute about the condition. Then the court itself, based on this data, is obliged to determine the amount of maintenance. Based on these instructions, the judicial chamber, having adopted Art. 1148 for guidance. Zach. Gr., appointed to give the wife 1/4 of the income from the husband’s estate (See Legal Bulletin, 1874, October). It is unlikely, however, that this measure of 1/4 of the part can be considered normal and consistent with the beginning mentioned in Article 106. Zach. Gr. This beginning is economic, to the extent of need, decency and opportunity, and the beginning of 1148 Art. there is a legal measure established to determine the hereditary indicated part. In one case it may happen that this measure coincides with the economic measure of maintenance, but the opposite may also happen: the amount of income of 1/4 of all estates may, especially with children, exceed the measure of actual need and decency. B) To Cass. decide 1873, N 1666 explained: “Taking into account 5 and 37 art. I part X t., by virtue of which marriages with insane and insane people are prohibited and declared invalid, one should come to the conclusion that even in the existence of a marriage, when one of the spouses has lost his mind, their further marital cohabitation can be allowed only after the recovery of the sick spouse, and that in this case there is no reason to blame the wife for not living with her insane husband, and to deprive her of the right to maintenance from the estate for this reason husband." The last conclusion cannot but be considered solid: there is really no reason to deprive such a wife of the right to maintenance simply because she does not live with her husband: if her husband is insane, her cohabitation, under special circumstances, may even be incompatible with the treatment system and with the conditions for the patient’s recovery; but the general conclusions on which this conclusion is based cannot be considered true and consistent with the law of marriage. From the conditions required by law for marriage, it is impossible to draw conclusions to the conditions under which cohabitation is legally separated. From the fact that marriage with a madman is not permitted by law, it does not at all follow that in an existing marriage, when one spouse falls into madness, the other spouse has the right to leave him for the sake of this illness alone; it is all the less possible to conclude, as the Senate concludes, that the separation of the spouses in this case is, as it were, obligatory (cohabitation can be allowed: only after recovery; marital cohabitation is unthinkable). This conclusion - from one thing to another incommensurable, does not justify itself; but even if it were possible to establish it literally, it would contain a fundamental contradiction with the very essence of marriage according to our law. If, in the minds of the law, the only purpose of marriage was physical copulation with the birth of children, then, of course, it would follow that if one spouse became insane, the cohabitation of the other with him should be interrupted; but our law, and no positive law, does not restrict the idea of ​​marriage to such an extent. In marriage, the moral side of the union, even if we do not recognize it as predominant, in any case has equal and inseparable significance with the physical one, and the law presupposes cohabitation and the care of love, especially in such cases when it is most required, namely in the case of illness. So, in the sense of our law, the insanity of a spouse not only does not give the other spouse the right to interrupt cohabitation, i.e. to leave the sick person, but does not even serve, in itself, as a justification or excuse for abandonment, unless, moreover, there are circumstances due to which cohabitation with the sick person would be impossible or harmful for the healthy person, or incompatible with the peace and benefit of the sick person himself. D) In ​​1871 Moscow. env. The court recognized the claim of the peasant Eromeiko to force his wife to live together with him as not subject to jurisdiction, and recognized it on the basis that the subject of the claim is the execution of certain Articles 106 and 107. Zach. Gr. moral duties, and the forced implementation of this execution is outside the range of methods of execution provided to the court by Articles 933 and 934. Est. Gr. Court. See Legal. Vestn, 1871, N 3. E) Does a wife, who for some reason does not live with her husband, even against his will, have the right to demand from him the delivery of things that constitute her separate property? Others are disposed in this case to deny the wife the right to sue, for the same reason that the legal residence of the husband and wife is assumed to be joint. It seems, however, that this consideration does not apply at all to the present case. The separation of property between spouses is recognized by law regardless of any other considerations. This is a pure law of property that has absolute significance. Moreover, in our law, although the husband is the head of the wife in the house, it is not said anywhere that he is the holder or ruler of the wife’s property, and therefore the wife’s claim against the husband for her property must be allowed regardless of any considerations about the violation by the wife or husband of the law of mutual marital relations. E) In 1893, in response to a husband’s claim for the placement of his wife with him, the Kharkov Chamber reasoned that this could only be demanded by the husband who, by his appeal, makes cohabitation possible, and in this case, the husband persecuted his wife for her attachment to her mother. But this extremely frivolous reasoning was rejected by the Senate, under the force of Art. 103. Gr. Zach. As an example of legal reasons, the Senate cites cases where the husband himself does not have a specific place of residence - or cannot give his wife premises, i.e. when it seems completely impossible for the wife to fulfill the requirement of the law (?). The wife must obey her husband (Zak. Gr. 107, 108) according to the strength of his power, which 179 Art. Citizen Zach. calls it unlimited. This rule of obedience has a valid and prohibitive force in many cases; for example, without the consent of the husband, the wife cannot be hired (Zak. Gr. 2202); but in disposing of her individual property, the wife does not need the consent and approval of her husband. Our law does not know the guardianship power of a husband over an adult wife, and even guardianship (or guardianship) over a minor wife is granted to the husband only by the free choice of the wife and with the approval of the guardianship of the nobility (260, 261 art. Zak. Gr.). Only with regard to bills of exchange does the law say that a married woman cannot issue them and transfers them with a return to herself, without the permission of her husband, if she does not trade on her own behalf (Statute on bills of exchange, ed. 1893, art. 6). The unity of husband and wife is assumed in the following provisions of the law on various subjects: Vol. IX, Art. 109, 111. The widow of a master registered in the guild council is allowed to continue her husband’s craft; in case of need, the shop foreman and the foremen's comrades must appoint a guardian for her and the children or give an apprentice, to whom payment is made from widow's or orphan's affairs; after a year, if she declares that she wishes to continue her craft, she is allowed to have apprentices and apprentices. Est. about Industry, ed. 1893, art. 400, 401. Wed. still there, Art. 420. § 14. Relations between spouses regarding property. – The German beginning of communication of property in marriage and the Roman dowry system. - The wife's special property. – Various systems of Western legislation. – Division of property upon termination of marriage. – Restrictions on marriage contracts and transactions between spouses. – English law on matrimonial property relations The moral concept of marriage presupposes the unity, the communion of the whole life and all its relationships. In accordance with this - from a moral point of view - is the requirement that spouses look at their property as common. This concept of property communication between spouses took a legal form among some peoples, namely among peoples of German origin. Since ancient times, the Germans have established the concept that the husband is the natural guardian of his wife, as the head of the marriage and family, and in this capacity holds the wife’s property, both brought into marriage and newly acquired. He has the unlimited right to dispose of her movable property; he manages and uses the real estate, and alienates it by agreement with his wife and her closest heirs. A wife cannot dispose of property without the consent of her husband, but a husband does not require the consent of his wife in disposing of his property. The husband pays her debts incurred before marriage from his wife’s property, and she does not enter into new debts without his consent. All income, no matter where it comes from, is collected by the husband; for all expenses he supplies funds. The wife then has direct control of the household. Upon termination of the marriage, the combined property of the husband and wife is divided, and the husband is not responsible for all the property alienated from his wife by order. If a wife, upon entering into marriage, wishes to retain part of the property for her own special disposal, without answering for her husband, there must be a special condition about this. This is the German view of the relationship between spouses regarding common property. Whatever the ideal task of such a view, one cannot help but admit that in its legal setting there is something harsh and artificial, that when applied to reality, in the obligatory form of the law, it not only does not provide internal firmness and unity to the marriage union, but also contains within itself the germ of discord and disagreement. This was not the view of Roman law. In ancient Rome, the strict concept of the husband's dominance did not allow the wife to be given special rights in property. But in modern Roman law, the dominance of the husband disappeared in its strict legal meaning. Despite the concept of marriage as a lifelong relationship, later Roman law allows for the legal division of property between spouses; the combination of property is left to free will, but is not expressed in binding law. In the Roman system, the wife brings with her to marriage a dowry, which remains inviolable during the marriage, constituting capital from which the income goes to the common household. The dowry is assigned, upon marriage, from the wife's parents or relatives; it goes to the husband, as part of his property, with which it does not mix, and is in the temporary and responsible possession of the husband only during marriage; the husband has no right to alienate his wife's dowry or burden him with debts, even with her consent. Upon the termination of the marriage, the dowry returns to the wife or to her heirs, or to the one who gave the dowry, if he gave on this condition (dos receptitia); but the safety of the husband's dowry is ensured for the wife by law on his estate. This is the Roman system of dowry (régime dotal), the opposite of the idea of ​​common marital property. In this system, the dowry is an essential accessory to the marriage, and regarding the dowry, a special legal relationship between husband and wife is established, regardless of the contract, by force of law. The husband does not care about the rest of the wife’s property, which she may have except the dowry (extradotalia, paraphernalia), and if he manages it, then only by the will and trust of the wife. Thus, although in both the Roman and German systems, special property is allowed for both husband and wife, the significant difference is that in the Roman system, all of a woman’s property, except for the dowry, is at her complete disposal, while in the German system, all of a woman’s property, except for the property specifically ordered by her (Sondergut), comes into the possession and use of the husband. In the first system, a dowry, as an exclusive property, requires a special disposal, assignment; in the latter, a special order is required regarding a separate wife’s inheritance, as an exception to the general order. German writers love to boast of their national system of sharing property in marriage: they claim that in their institution the ideal of marital cohabitation is most fully realized, and many of them consider the system of dowry and separation of marital property to be an institution corresponding to a lower civilization. But this boast is hardly founded, and the Roman system seems to more satisfy justice, and the Roman institution of a dowry best corresponds to practical needs and is more consistent with the dignity of a woman in the family. A dowry satisfies the father’s natural desire to equip his daughter for marriage and to separate to her that part of the property that is due to her (in Ancient Rome, the appointment of a dowry was a convenient way to transfer part of the property to the daughter, who was not considered an heir after her father, and therefore could not receive parts); it also satisfies the wife’s natural desire to take an independent position in the new house, to appear not as a wretched stranger, but with her property, which should serve to support the household; through a dowry, the wife's property could be preserved for her children and passed on to them in the form of an inheritance. No part of civil law in Western legislation represents such confusion and such complex diversity as the property relations of spouses, and its study is especially difficult. In foreign literature they complain about the lack of works in which this subject is presented with proper clarity. Various rulings on this subject are usually given in two main types: 1. Property connection system (Gütereinheit). Any property of the wife brought into marriage and acquired during marriage passes into the power of the husband. The husband manages and disposes of, freely alienates movable property of all kinds, and alienates real estate, except in extreme need, with the consent of his wife. The wife is recognized as the owner of her property, but has no control over it without the will of her husband. Her property is responsible for her debts incurred before marriage; It is responsible for debts incurred during marriage only when the husband agreed to those debts. But the husband is free in his own property, and even his wife’s estate can be held liable for his debts. Upon termination of the marriage, the wife receives her estate and can demand payment from the total estate for everything wrongly lost from her estate and for what was used from it to satisfy her husband’s debts. 2. Another system is the communication of marital property, more or less complete (Gütergemeinschaft). All property of the spouses is combined into one mass, in which both parties participate in proportion to their shares. The representative and ruler of the entire mass is the husband; with movable property he does what he pleases; General consent is required for the alienation of real estate. The premarital debts of both spouses and the husband's debts incurred during marriage fall to the mass; but of the wife’s debts, only those incurred on behalf of the husband or for the needs of the household fall on the mass. Upon termination of the marriage, the shares of each spouse are divided. Some legislations accept incomplete, private communication of marital property. Only that which was acquired by spouses during marriage by inheritance, by deeds, or by labor (Errungenschaft, Collaboration) can be combined into one mass. In addition, there may be separate property of the husband and separate property of the wife, taken from her disposal and in the power of the husband. Upon termination of the marriage, the wife receives her property and her share of the total estate, with settlements and compensation for overpayment. The peculiarity of other legislations is that all the wife’s property goes to the husband for use (ususfructus maritalis), but the wife retains the right of disposal and management, so long as it does not violate the integrity of the use belonging to the husband. The husband, while retaining the use of his and his wife's estate, is obliged to provide funds from it for the maintenance of the house. It is obvious that this uneven combination of assets and the uneven combination of will in managing them greatly complicates the legal relations of the spouses and makes it difficult to divide the total estate upon the death of one of them. But it should also be noted that sometimes separate estates, consisting of a special right, are added to the composition of the property of one or the other party. Thus, special legal significance is attached to the household equipment that the wife brought with her when she got married (Aussteuer, Mitgift): this legal significance is not the same, depending on the difference in one or another system. Among the special property of a wife is also the so-called marriage gift (Morgengabe) from the husband to the wife: this gift is either transferred to her immediately, and in this case immediately comes to the disposal of the husband, being the property of the wife, or is designated for transfer upon the death of the husband. However, to ensure the fate of the wife in the event of widowhood, various appointments can be made at the time of marriage; the main type of such appointment is the widow's inheritance (ancient Leibgeding, vidualitium; current Witthum), in the event of the death of the husband. Its subject is either the purpose of an estate and a house for residence, or the lifelong use of income and capital, or the establishment of rent. This appointment in other places depends on the good will of the husband, in others it is obligatory for the husband by law or custom; Moreover, the size of the estate that the wife, for her part, brought with her upon marriage is taken into account. Such assignment of inheritance from the husband to the wife was known in Roman law, and in Justinian’s time it was required from the husband necessarily, in accordance and in proportion to the dowry that the wife brought with her (donatio propter nuptias. In German law - dotalitium, contrados, Gegenvermächtniss, Widerlage. Cp. Pr. Ldr. II. 1, 456; Oest. Ges. 1230, 1245). The newest European law is based on either one or the other system, i.e. either on the Germanic intercourse system or the Roman dowry system. But this or that principle is assumed to be legal, with the right to deviate from it and accept a different beginning of the relationship, according to an agreement between the spouses. Thus, the dowry system is recognized as dominant in Austrian (Gesetzb. 1233–1240) and Prussian law (Ldr. II. 1. 205, 345), and in French the law establishes the communion of property between spouses, unless special conditions for the dowry (régime dotal) and separation of property are stipulated in the marriage contract; but for both relationships, complex mandatory rules are established in law, so that the communication of property can be established in various forms and with many modifications. However, even where the separation of marital property is recognized, the fundamental German principle of male guardianship and male dominance is retained; So in both Austrian and Prussian law it is decreed that the wife’s property is generally considered to be under the management and management of the husband, unless otherwise stated. Marital relations regarding property are terminated upon the death of one of the spouses by division (although the remaining spouse may still remain in undivided communion with his children for some time to come). In this section, as mentioned above, the surviving spouse receives his share, with the calculation and liquidation of general and special debts by third parties; but regardless of this, he is provided with the share from the property of the deceased prescribed by law or contract. From this side, the relations of spouses regarding property, during the lifetime of both, have a close connection in Western legislation with matrimonial inheritance law, and inheritance law reflects the features of one or another system of marital relations. In general, marriage contracts regarding property are significantly constrained in law by various restrictions in the types of public interest. It is prohibited to stipulate in the contract conditions that contradict the legal authority of the husband and the moral relations of the spouses. There are some principles of these moral relations that the law supports unconditionally, constraining and limiting mutual transactions and demands of spouses during their married life. So, for example, a claim for personal injury between spouses is usually not allowed. All relationships between spouses are expected to be based on mutual love and fidelity; As a result, in order to eliminate the predominance of material interests between spouses and the resulting temptations and enticements, the law, following the Roman rule, prohibits gifts between spouses after marriage, or at least these gifts are declared not irrevocable, subject to dispute and accounting. This prohibition applies even to immediate relatives (eg children and parents of the other spouse). This rule is strictly adhered to in French law; but abolished in Austrian, and in Prussian only the creditors of the donor are given the right to challenge such a gift within the due period. Finally, the law also takes care that the predominance of male power is directed solely towards the intended goal, i.e. to protect the wife, and did not serve, to the detriment of her benefit, the interests of the husband. Therefore, obligations that a wife, in the interest of one husband, assumes before third parties, and transactions between a husband and wife that tend to extend his rights to his wife’s property beyond legal limits are not recognized as legal. In Roman law, upon the liberation of women from permanent guardianship, the well-known Velleian law (Scsult. Velleianum) was issued, in order to protect them from the consequences of infatuation and frivolity, by virtue of which a woman could refuse an obligation that she had assumed in the interest of a third party (a secured transaction, intercessio); and in Justinian's law, all such obligations assumed by a wife for her husband are declared void. The new legislation retained this prohibition of aggregate and collateral transactions between a wife and her husband with third parties. The French law (Code 1431) stipulates that when communion of property, any joint obligation of the wife and her husband to third parties is considered on her part, in any case, only an additional obligation, as a guarantee for the husband (giving the right to claim back from the husband for overpayment). In Austrian law, this restriction is abolished completely (Article 1349), and in Prussian law (I. 14. 220–224; II. 1. 342–344) the wife’s handwritten notes for her husband are allowed only with limitations of liability and in compliance with special formalities. French law goes so far as to prohibit unconditional purchase and sale between spouses and all kinds of exchange and concession transactions, except in three cases (Code 1595, 1707); All kinds of changes in marriage contracts are prohibited after marriage (1395). English law views husband and wife as one person. A woman outside of marriage (feme sole) enjoys full rights. In marriage, her personality is completely covered by the personality of her husband (the word coverture means the personal state of a woman in marriage): the wife truly belongs to her husband, being at his disposal and under protection (in custody). She can ask for justice against her husband only in cases of extreme abuse of power, i.e. when her life is in danger. This subservient state excludes the wife even from criminal prosecution and from all liability for felonies if they are committed in the presence of her husband (except for serious crimes). There is complete solidarity between husband and wife regarding property. All personal property and movable property of the wife upon her marriage becomes the unconditional property of the husband, who does with her as he pleases; Only the toilet items that constitute her paraphernalia are considered to belong to the wife herself. The real property (real property, chattels real) of the wife also passes into the disposal of the husband, but not so unconditionally: the husband has an unaccountable and unconditional right to the income from this property, but he can alienate and encumber it with debts with the consent of the wife, and after the death of his wife, with children, he uses it for life. On the other hand, the wife’s responsibility for property is completely covered by the husband’s responsibility: he is responsible for her premarital debts and for all claims brought against her; He also seeks for his wife personally on his own behalf. The wife cannot issue individual obligations without the consent of her husband. Donations or transfers of property from the husband to the name of the wife are not allowed, except in the name of third parties in favor of the wife (trustees) and through a will. According to strict law (in common law), all contracts between husband and wife are invalid, as they do not agree with the beginning of the unity of personality and property in marriage. However, the opposite principle of Roman civil law, the principle of separation of property, is allowed in practice by English courts of conscience (in Eguity) in special cases, for the sake of justice. This method, accessible, however, only to rich and wealthy people, was developed by English practice out of necessity, to soften the severity of the general rule. In conscientious courts, agreements between spouses on mutual relations regarding property, concluded in the event of marriage (settlement of estates), are allowed - impossible under the general law - and in this special way - accessible, as said above, to a few, due to the high cost of production - the separation of marital property can be established for the protection of the wife or her children; In the same way, for reasons of justice, mutual agreements and obligations between spouses that took place during marriage can also become valid. Thus, according to English law, the wife, receiving strong protection in the person of her husband from any extraneous claims and from external needs, is at the same time placed in a completely defenseless position relative to her husband. That is why others, having in mind one side of the law, consider it beneficial for the wife and for the family world (Blackstone in this regard calls the woman the favorite, the darling of the law), and any attempt to change it is ready to recognize a revolutionary movement. Others, turning their attention to the other side, condemn this law, see it as a source of violence and abuse of power and demand its abolition to end the wife's defenselessness before her husband. Since 1868, a strong movement began in society and in literature in favor of expanding the rights of wives, due to a bill introduced on this subject in parliament. (See the reasoning of the lower house in the first meeting on June 10, 1868 and in the subsequent ones, 1869 and 1870. Compare Westminster Review. October. 1868. Property of married Women.) In 1870, this law took place in the following main features. Everything that a married woman separately acquired through labor becomes her separate property, as well as any capital she deposited in a savings bank, etc. She can acquire by inheritance or will any personal property worth up to 200 pounds. She is also given at her separate disposal income from real estate (freeholt property) that can reach her. She can separately insure her life or her husband and children. In any case, the husband is allowed by a written act to emancipate for the separate disposal of the wife any property that could reach her. It is not difficult to imagine the legal constraint on a wife in England, when the above reliefs are already considered very important and were accepted only after much debate. § 15. Russian law on the separation of property between spouses. – Economic and legal significance of dowry. – Transactions between spouses and cases of their mutual responsibility for each other. – Dowry according to the Lithuanian statute. – Law of the Baltic provinces Our legislation on relations between spouses regarding property appears in a completely different form. Throughout our history, the beginning of the separation of property between spouses has been carried out with remarkable consistency. The husband never legally occupied the place of manager and owner, although in fact and secretly he could arrogate to himself power over his wife’s property; as the head of the union, by virtue of his position he could force her, in home life, to take actions regarding property that were unprofitable for her; but neither spouse was constrained by law in disposing of their property without the consent of the other, much less had the right to dispose of the other’s property at their own will: in relation to him, it was always someone else’s property. There was no prohibition on spouses from transferring property to each other and donating property to each other: restrictions were established only where a deliberate action to the detriment of third parties was assumed. The right to enter into mutual obligations was free, and there was no limitation on mutual liability for debts. The concept of dowry, in its formal meaning, although it could have been borrowed from Roman law, was not in the form of an integral institution. The right of the husband to manage and use the dowry was not known in the Roman legal norm to native civil law and custom, although, perhaps, dowry cases that were subject to church court were decided on the basis of Greco-Roman laws. Perhaps for the same reason, the initial legislation did not touch upon the issue of dowry: it touched upon this issue later, and only from those sides from which this issue was adjacent to public law. There has already been occasion to mention the auxiliary nature of our land property (see Vol. 1, § 16). A woman who was not responsible for service could not, in the face of public authority, occupy the same position as a man regarding property rights. According to ancient Russian laws, a daughter has no inheritance rights in property with other male heirs. It was excluded even by the treasury. She had no right to the property of her parents or relatives. The duty of the father or senior relative in relation to her was to marry her off, and upon marriage she had to be equipped and endowed with property. This was required by custom, required by honor, and the law, without directly requiring it, presupposed such an allotment where it was possible to make it (as they can), with any marriage. This assumption was so general that the prince, inheriting a son who had no sons, gave, according to Russian Pravda, his daughters a share if they were unmarried, and if they were already married, then he did not give it. This assumption is found in all decisions relating to inheritance or escheat. Subsequently, in the 17th century, this assumption developed into the form of a determinative law on the daughter’s inheritance. And regardless of the law, each father or relative, when giving a girl in marriage or in a will, could assign her part of the property as a dowry. The dowry was assigned to the woman herself, and there is no rule in our laws that in any case it should be the property of the husband, or should pass into his possession or disposal. But regarding immovables, such a rule arose naturally due to the peculiarities of our structure, and not due to a fundamental legal principle. Real estate consisted of estates, estates and taxable city property. The right to all such estates was accompanied by personal service or tax. Only a man could be the personal executor of such duties; Naturally, the man was also assumed to be the holder of the rights associated with these duties. Hence the rule to settle the wife's dowry for the husband, as soon as it consisted of a patrimony, estate or courtyard. Thus, the wife's dowry became the husband's property; it consisted of his management and possession, but was not his complete property, because its alienation without the consent of his wife was prohibited. Providing a dowry from the husband's property was not at all known to our legislation. Upon the death of the husband, the dowry returned to the wife; upon the death of the wife, it remained with the husband and went to the children, and if there were no children, then to her relatives, and the husband had the right to a certain share. But the dowry estate was ultimately left to the husband, and the wife after her husband was given only a portion for living expenses. Since the time of Peter I, when comparing estates with estates, the nature of the dowry became even clearer and more definite (1714). The dowry became completely the property of the wife, in relation to which the husband had no right, not even the right to use. This is how the legal concept of dowry appears today. A dowry, in the real meaning of the word, is an allocation to daughters and relatives (the next part of the ancestral or arbitrary - acquired) estate on the occasion of marriage (Gr. 1001). The dowry is recognized as the separate property of the wife (Gr. 110). But in the legislation of Western Rus' (Lit. stat.) the concept of the mutual connection of marital property regarding the dowry was established. In the Chernigov and Poltava provinces, the dowry consists, although in the separate property of the wife, but in the common possession of the spouses, so that the wife, without the consent of her husband, cannot make any orders in violation of the general right of use. The act of assignment is called a dowry record, and with its assignment is connected the security on the husband’s estate, mostly through a venue, a security record issued from him, or, otherwise, the maker of the dowry record takes other security measures. The husband's real estate, on which the dowry is secured, can neither be alienated nor encumbered with debts without the consent of the wife. In the event of dissolution or separation of marriage due to the fault of the spouses, the guilty wife is deprived of her dowry in favor of her husband, the guilty husband returns the dowry, and the securing estate becomes the lifelong possession of the wife; if no one is at fault, the property returns to its previous position as it was before the marriage. If the wife’s dowry is not secured on her husband’s estate, she is considered to have not brought any dowry (Zak. Gr. 111, 118, 1005, 1157. Sat. Sen. decision T. 3, N 649. Pestrzhetsky’s article on the widow’s share. Journal of the Min. Justice 1860, N 12). According to the current law (Zak. Gr. 109–117), marriage does not constitute common ownership in the estate of the spouses. Everything acquired by the wife, by any legal means, is recognized as separate property. Each of the spouses disposes of their estate freely and independently of the other spouse, without asking his consent (only a married woman is shy about issuing bills of exchange for herself - see above). A husband without a power of attorney from his wife cannot cede her property. Mutual transactions and obligations of all kinds between spouses are freely permitted. Each of the spouses, freely disposing of their property, is also free to issue obligations in their name. Wives of merchants are prohibited from issuing bills in their own name and transferring them with turnover to themselves without the consent of their husbands, if they do not trade in their own name. This prohibition has extended to married women of all classes, since all classes were allowed to be obligated by bills of exchange in 1862; but it does not apply to borrowed letters (Article 6 of the Statute of Bills of Exchange, ed. 1893; Sat. Sen. Resolution, vol. 2, N 1028). Spouses are not responsible for each other in the obligations given by each to himself, without the participation of the other. Only in cases of insolvency of one of the spouses can the property of the other spouse be held liable, by virtue of a special legal rule aimed at preventing the pretended transfer of the property of an unscrupulous debtor in the name of his wife, to the detriment of creditors. When a husband is declared insolvent, the law leaves the wife’s separate estate inviolable, but recognizes as her separate property only that which, according to undoubted acts, was acquired by her not from her husband during the last 10 years before the discovery of his insolvency or before foreclosure on his entire estate, unless the wife could prove that she acquired the estate from her husband with money that she received not from her husband, but from relatives and third parties. Everything that is donated or transferred free of charge by a husband to his wife during a specified period of time turns into a mass of insolvent. At the very discovery of the husband’s insolvency, the law imposes on the wife the obligation to provide evidence that the estate assigned to her constitutes her separate property (Pol. Execution. Civil., Art. 413–418). This evidence varies depending on the type of property. Regarding the dowry, row entries are required; regarding movable property that did not form part of the dowry - inventories, accounts or other papers, or testimony of reliable witnesses; regarding real estate that came by inheritance, purchase or gift - wills, generational records, separate, gift or other records, serfdom deeds, introductory deeds. Then, searching for exactly what capital was used to acquire the property listed in the deed, which is extremely difficult by its nature, is not required when the property was acquired by the wife from strangers (Pol. Excise. Civil., Art. 418, Coll. Sen. Resolution N 1011). The same strict rule applies to the husband in the event of the wife’s insolvency (Pol. Recovery Civil., Art. 421). But when making an inventory of household property for the husband’s debts, the wife is left in any case - all the women’s clothes and linen, half of the furniture, dishes, silverware, carriages, horses and harness (Pol. Recovery. Civil., Art. 419; cf. 554-558 Art. Est. Court. Trade. Ed. 1893). According to Art. 976 Set. Citizen Court., when recovering from one of the spouses, all movable property located in their common apartment is subject to inventory and sale, except for the clothes and linen of the other spouse, and things of which reliable evidence is provided to this spouse. Wed. Cass. decide 1868, N 252, 834. A) In 1860 State. Sov. in the Domogatskaya case, he admitted that in force 2272 Art. 2 parts X t. (Article 417 Pol. Recovery. Civil.) A wife who has acquired an estate from her husband, even free of charge, should not for this reason be held liable for his debts if she proves that she has already, at least before acquiring that estate from her husband, paid his debts in an amount equal to the price of that estate. Journal Min. Just. 1860, No. 7. On the granting by one spouse of an estate for lifelong ownership to the other spouse, see vol. 1, § 62. B) According to the law (Article 557 of the Constitution of the Court of Trade, corresponding to Article 1936 of the Constitution of Trade of 1857), the wife of an insolvent person is considered according to legal and indisputable documents on an equal basis with his other creditors only when, according to the said documents, she has placed at the disposal of her husband her capital, which has reached her in the ways specified in Article 556. Est. Court. Bargain. (Art. 1935 Ord. Trade. Ed. 1857). Thus, the wife of an insolvent person, making a claim against him, at least according to legal and undisputed documents, can demand satisfaction of her claim on an equal basis with his other creditors only when she proves that the capital she placed at the disposal of the insolvent person came to her in one of the indicated ways, including as a dowry. Cass. decide 1872, N 908. B) In 1873, in the case of Nasekin and Reut, State Court. The Council reasoned that our laws clearly distinguish between the following two cases: 1) the purchase by a wife of an estate on behalf of a stranger, and 2) the purchase of an estate from a husband who subsequently turned out to be insolvent. The law prescribes that estates of the first kind should be considered the wife’s own estate, not subject to any penalties for the husband (Article 414 Pol. Execution. Civil, corresponding to Art. 2269 2 part X t.), as long as the wife has a deed of sale (2 paragraphs of Art. 418 Pol. Execution. Civil). Property of the second type is prescribed to be considered the property of the wife only in the case when it is proven that she acquired it with capital that came to her, not from her husband (Pol. Vzysk. Civil., Art. 416). It follows that the obligation to prove the origin of the capital with which the estate was purchased falls on the wife only in the only case when she acquired the estate from her husband; in all other cases, the general rule on evidence remains in force, i.e. the estate is considered to belong to the wife until the creditors prove that it was purchased, albeit from strangers, but with money that came from the husband. See also Cass. decide in the Tersky case, 1872, N 334. D) The sister of the deceased Turchaninova was looking for the movable property left after him by inheritance from his brother, from his wife, who claimed that all the movable property in the house did not belong to the husband, but belonged to her. The plaintiff had nothing to prove the contrary, but the Senate (2nd Department, June 11, 1869) considered it possible to apply the rule of Art. 2274 to the case. 2 hours. X vol. ed. 1857 (419 Art. Pol. Execution. Civil.) and awarded the sister half of the movables shown in her register, with the exception of the widow's part. It is hardly, however, reasonable to apply Article 419 to this case, which has a special application to those cases when the property in the house is described for the debts of one of the spouses. This rule is based on the assumption of joint satisfaction of the economic needs of the husband and wife living together, and is intended to provide one of the spouses with a part of the common fund, when the other part of it goes to satisfy the debts of the other spouse. But it is impossible to extend this assumption to other cases, not regarding the collection of debts, and to the entire composition of movable property, except for those items that are indicated in Art. 419. Floor. Collection Citizen In this sense, the definition of 2 Department was changed by the General Assembly of the Senate in 1873. On the relationship between spouses according to the law. gain provinces The husband becomes the wife's guardian, owns and manages all property, which is recognized as joint property, unless an exception is made in the marriage contract. In the event of a dispute, the property is considered to be the husband's and the wife must prove her separate right. Particular importance is attached to the dowry (Aussteuer), which the wife contributes to the marriage for herself and for the household, and the dowry (Mitgabe, Brautschatz), which the wife contributes, in this capacity, for the constant needs of married life. The wife's separate property (bona receptitia) is considered to be everything that was given to her or for her by other persons as a special inheritance, everything acquired through personal labor, and pocket money from her husband, personally received gifts and the morning gift (Morgengabe). Alienation of the wife's separate property can only be with the consent of the husband. Special regulations and customs for individual localities and cities establish significant differences in the relations of spouses regarding property; In some localities, legal communication of property between spouses is recognized. In general, a wife, without the consent and signature of her husband on deeds, cannot alienate her real estate; cannot draw up a will (except for Courland and Revel) without the consent of her husband. When a marriage is dissolved, property is divided, and everyone receives back what they contributed to the marriage or acquired during the marriage; but if the wife is innocent of the knowledge of marital vice, the husband, in case of need, is obliged to support her even after the divorce. In the event of a divorce, all orders of one of the spouses in favor of the other and marriage contracts lose their force (Ostz. Civil. Law. 10-131. 1991, 1992). Appendix to the second chapter. Marriage among Muslims According to Muslim law, marriage is a civil contract, and the legal relations arising as a result of marriage have significant features compared to the law of Christian peoples. By marriage, a husband does not receive any right to his wife’s property, nor does a wife receive any right to her husband’s property. The wife retains everything that is hers, with complete freedom to manage and dispose of her property and enter into contracts and obligations regarding it without the consent of her husband; does not at all come under the guardianship of her husband, and can, when necessary, make collections from her husband directly. On the other hand, the husband is not responsible for his wife’s debts and is obliged to support her. At the same time, the husband has the right, at any time, to give his wife a divorce, to let her go at his own discretion, without giving a reason. Islam is usually associated in concept with polygamy; but a rare Muslim can take advantage of the right to have several wives: not everyone can do it, because according to existing custom, every Muslim, even of a low rank, must give his wife a fairly significant dowry (mehr). The actual issuance of this dowry is not required as long as the spouses live well and together; but the question of extraditing him is raised every time after the termination of a marriage or during a divorce, so that with this duty each wife can keep her husband in fear; therefore, polygamy on the one hand, and on the other the husband’s right to divorce, in reality seem to be a luxury that not everyone can afford. Moreover, according to the law, a permanent marriage can be with no more than four wives. Shiites also allow temporary marriage for a certain period or for a certain number of relationships. When entering into marriage, degrees of kinship and properties are observed - almost to the same extent as prescribed by the Mosaic Law; In general, those relatives who, according to the Koran, can appear in front of him without a veil are considered prohibited for a man. But the concept of a property that prevents marriage among Muslims is extremely broad. The property occurs through not only legal marriage, but also illegal communication; Moreover, the property depends on the manifestation of lust by certain movements or touching a woman 18. Particularly characteristic of Muslim law is the establishment of kinship and the properties of milk, i.e. through breastfeeding; it also serves as an absolute obstacle to marriage. A Muslim is prohibited from marrying a pagan or fire-worshipper, but is not prohibited from marrying a Jew or Christian; however, the legal marriage of a Muslim woman is, of course, only with a Muslim. Marriage is considered completely legal only between subjects of the same orthodox government, and therefore, if one of the spouses accepts foreign, non-Muslim citizenship, the marriage is destroyed. It is forbidden for a Muslim to have two wives at one time who are in relationships of kinship or property prohibited for marriage (i.e. between different sexes), but it is not forbidden to have such wives one after the other; It is even allowed, after the death of a wife or divorce from her, to marry her sister. The essential rights of a wife are the right to a dowry and the right to maintenance of the wife from her husband - a rather difficult condition, since maintenance is assumed based on the condition of the husband, and each wife can demand separate premises and separate servants. Therefore, the wife may not allow her husband to have marital intercourse; until he receives from him everything that is agreed upon in the contract; however, regardless of the contract, the law presupposes in every marriage a dowry of no less than the required amount. The dowry distinguishes between the part that is subject to immediate issuance upon demand and the part that is subject to issuance only upon the termination of the marriage. A wife does not have the right to demand maintenance from her husband if she is disobedient to him or avoids cohabitation. Marriage among Muslims is accomplished by a simple agreement of the parties, without any special formalities. For a marriage to be valid, all that is required is an exchange of proposal and verbal consent between the parties. The definition of terms sufficient for this is the subject of rather complex casuistry in the law. For all this, certain conditions are required for the legality of marriage, such as: free will, consciousness and the presence of witnesses. Divorce is allowed, for which 13 legal reasons are indicated, of which seven require a preliminary decision of the judge and six are not required, because it is assumed that in cases of the latter kind, the marriage is destroyed by itself (for example, when deviating from Islam, when changing citizenship, etc.). In some cases, a wife can reject a marriage that has already been concluded, of her own free will: precisely on the occasion of her minority, due to inequality of rank (when her husband is not her equal, below her) or due to the insufficiency of the dowry. But a husband can generally reject his wife without giving a reason; this requires only the utterance of certain words showing that the husband rejects his wife. Muslim casuistry affirms the reality of such a divorce, even if the words mentioned were uttered by the husband as a joke, came out of his mouth accidentally, or were said without awareness of their meaning. The formula of rejection, in some expressions, to produce a decisive, irrevocable action, in others, less decisive, must be pronounced three times; otherwise, the divorce receives full force only after three months, and before that time it can be taken back at the will of the husband. After the final rejection, the husband can take his wife to him only in the event of a new marriage and a new divorce from another husband. The words of the formula can be pronounced not only by the husband himself, but also by a third party, on his behalf. Moreover, according to Muslim law, the rejection of a wife is temporary, conditional, or even limited to a place, i.e. as long as the spouses are in a certain place 19. Chapter three. Parent-Child Union and Mutual Relationships § 16. The concept of legitimate birth and legitimate children. – Certificate of legality of birth. – Roman assumption about the legitimacy of children born in wedlock. - Resolution of the Russian law on this subject. – The right of the father and relatives to challenge the legality. – Differences in foreign legislation The union of parents and children is established through birth. Birth in the legal sense is not only the birth of a living human being, but also the descent from known parents, from father and mother; Consequently, birth determines the legal significance of a person as a member of a family and clan, belonging to a class, the use of rights associated with it, the right to name, honor and property - by inheritance. All rights and attributes of a person that presuppose a well-known name depend on the definition and legality of this name, and the name is certified by the authenticity of birth from famous persons. Hence the need to determine the legality of a person’s birth from a known father and mother, in their legal marriage: in this case, his birth is legal. Otherwise, i.e. if a person comes from a known mother, but from an unknown father, or from parents outside of legal marriage, his birth will be illegal. Many legislations distinguish several degrees of illegality itself, recognizing for illegitimate children a legal connection with their known parents by blood, more or less incomplete: this is how legalized children (legitimés), illegitimate children (enf. naturels), children of sin (adultérins, incéstueux) are distinguished. Our law is not rich in definitions in this regard, because it recognizes only children who are directly legitimate, and denies all illegitimate children the recognition of a legal connection with their parents and clan. A person's attitude towards his mother is determined by the very event of birth. On the contrary, it is very difficult to determine a person’s relationship to his father when it is unknown or subject to doubt who his legal father is. According to the general natural concept, a child can be recognized as legitimate in the case when, at the moment of its conception, both culprits of this conception - father and mother - were legally married. So, when, in case of doubt and dispute on this subject, it was necessary to certify the legality of the birth, it would not be enough to prove that the child was born to a known mother and father who were legally married, but, in addition, it would also be necessary to prove: 1) that the man called the parent, and not someone else, participated in the conception of the child; 2) that the minute of this conception belonged to a legal marriage. But such proof is absolutely impossible, because the conception of a child belongs to the mysteries of nature, it is an action that cannot be captured in time with all its surroundings. So, instead of positive proof for such cases, necessity forced recourse to conjecture. To leave this assumption to the discretion of the judge would be unsafe and inconvenient in many respects, and therefore among the Romans, in order to end the uncertainty, a firm legal assumption was made on this subject, adopted by all new legislations. It is generally assumed that the mother's husband is the father of the child until the contrary is proven (pater est, quem justae nuptiae demonstrant). But complete freedom to prove the opposite would lead to an increase in processes and proceedings, associated with temptation and disruption of peace in family and social life, but essentially hopeless due to the extreme uncertainty of the events that serve as the subject of proof; on the other hand, these very processes would leave for a long time in uncertainty and doubt such objects, the definition and reliability of which are important for the state. Therefore, all legislation limits more or less claims for illegality of birth - in terms, in the subjects of evidence and in the very persons who have the right to claim. The above assumption is also accepted by our law, although also not unconditionally, but with restrictions. Our law limits this assumption to the following cases. Since the time of Hippocrates, the experimentally based opinion has been established in science that for the correct development of the uterine baby before birth, a gestation period of 9 to 10 months or about 5/6 parts of the year is required. This is the longest, accepted and positive law, period of pregnancy. This period is not defined in days in the same way in different legislations - from 300 to 310 days; Our law adopts 306 days. But in general, in order for a child to be born alive and capable of life, it is necessary that at least 6 months or six months pass before the moment of birth. This is the shortest period of pregnancy accepted by law. Days are defined as 180 and up to 182 days; in our law the number is 180. A child can be born in a legal marriage in such a way that the mother’s pregnancy lasted at least 306 days during the marriage, so that both conception and birth undeniably converge during the period of marital cohabitation; but the child may be born soon after the marriage, before 180 days have elapsed since the marriage - the shortest period of pregnancy that produces a living child: by nature, in this case it should be concluded that the conception of the child was before the marriage. However, our law recognizes the child as legitimate both in this and in this case, unless the father denied the legality of his birth. As long as the father lives, he alone has the right to deny this legality; but his personal right is also limited by conditions. Firstly, in order to destroy the assumption of legitimacy, the father must prove that he was at all times during which the baby was conceived, i.e. for 306 days before his birth he was in continuous absence, therefore, could not have marital cohabitation with his wife (proof is in any case difficult, especially since railroads were installed everywhere). Let us also note that the law limits the reason for impossibility to one thing only - absence, therefore, any evidence of the same impossibility on another basis is excluded, for example, in the case of incapacity due to permanent or temporary serious illness, etc. Otherwise, the law would express itself: due to absence or other reason 21. Secondly, a dispute between the father himself is not allowed if the baby has already been recorded in the birth register as a legitimate child and this entry has been signed by the alleged father or someone else on his behalf. Thirdly, the right of the father himself is limited to a one-year period (two years for those who were abroad at the time of the birth of the child) from the time he learned about the birth of the child (Law. Gr. 119; Law. Court. Civil., Art. 463, 465). The right of the father passes to his heirs only in the case when he died before the expiration of this period and if he did not declare during his lifetime that he recognizes the child as legitimate. But the heirs retain such a right of action only for 3 months from the date of the father’s death or from the date of birth of the baby, when the father died before his birth, and, moreover, the heirs are obliged to prove that the mother’s husband did not know the existence of the baby at all, or at least that he learned about it only shortly and did not have time to declare a dispute against the legality of his birth (Law. Court. Civil., Art. 466). A child may be born upon the termination or dissolution of a marriage, within 306 days from the time of such termination or dissolution. In this case, the law (Zak. Gr., 119 art.) declares the child legitimate; Moreover, it does not specifically mention the right of the former spouse, upon divorce, to prove that he was not in marital cohabitation with his ex-wife during this entire period; but it would hardly be correct to completely deny the possibility of such a claim (Article 119). A child may be born, upon termination or dissolution of marriage, after the most extensive period of pregnancy, i.e. later than 306 days from the date of death of the mother’s spouse, or from the date of divorce. In this case, all those whose personal or property rights would be violated by recognizing the child as legitimate may challenge the legality of his birth; but their right to sue is limited to 6 months from the time of birth (Article 131). Thus, in all those cases in which there is a legal assumption that the father of the child is considered to be the legal husband of his mother, the law supports this assumption, giving the right to dispute only to certain persons - namely the husband, and, under special conditions, his heirs, but not third parties interested in the case. Moreover, it should be noted that in the person of the husband, this claim has not only property, but also moral significance; therefore, the husband has the right to challenge the legality of the birth of a child solely for the sake of legality, even if there are no property interests associated with it. The same should, it seems, be understood about the right of the husband's heirs. In this case, heirs should be considered those who are exclusively recognized as heirs after the deceased. In the case where the legal assumption is eliminated (namely, when the child was born later than 306 days after the termination of the marriage), the law allows any third party with a material interest in the case to participate in the dispute 22. It should not be thought, however, that the cited articles of the Civil Laws and the Civil Proceedings Laws exhaust all cases of disputes possible under the law regarding the legality of birth. All these articles refer to disputes about the legality of birth with the undoubted existence of a legal marriage. But, in addition, disputes about the legality of birth can be initiated on other grounds. The legality of birth and the rights associated with it can be denied, for example, on the grounds that the marriage of the parents itself should not be considered legal; that the very birth from a known mother is denied, the identity of the person is denied, etc. Of course, the strict rules on the terms and conditions of the dispute set forth in these articles do not apply to these cases. In High resr. addressed to the Prosecutor General on February 14. 1796 it was explained that “divorce of a deceased person from a living or dead wife cannot exist.” This was the basis for subsequent decisions on the recognition of children as legitimate, which, while the marriage existed as a legal one, being considered legitimate, were not challenged by anyone. The husband released his wife with a letter of dismissal, on the basis of which in 1792 she was married to someone else. From this marriage children were born. The second husband died in 1805, and his relatives raised a dispute about the illegitimacy of these children and the marriage from which they were born. This marriage was declared illegal by the Synod, and the children of the State. The council left them legal, since they were recorded as such in acts, were recognized by parents, and were not challenged by anyone for 13 years (1817 by the Shchepochkin family). The question may arise: does the mother have the right to prove the illegality of the birth of the child who is listed behind her? One must think that she does not have this right, given the existence of a legal marriage in which the child was born, for in Art. 464. Zach. Court. Citizen it is said that such a mother is allowed to declare the illegality of the birth of a child only in the case when, during the production of a case that has already been started regarding that matter, the court will require her, in support of evidence, to confess her guilt 23 . The current regulations on disputes against the legality of birth came into force with the publication of February 6. 1850 new law on legal proceedings in matrimonial matters. At the same time, it was decided that these new rules do not apply to marriages that were previously completed, in everything that these rules were changed or supplemented in previous laws, or to children born from previous marriages (note to Article 797, Article 2. X t., ed. 1857). Previously, the laws in force (Article 122 of the St. Zak. Gr. X t., ed. 1842) stipulated that all children were considered legitimate, the legality of which was not challenged: 1) during the life of their parents, 2) within 10 years of birth. At the same time, it was decided that the legality of birth is considered indisputable when the recognition of children as legal was announced by appropriate acts or other events during the lives of both parents, and then for 10 years it was not challenged by anyone. From the decisions taken during the operation of this law (for example, the opinion of the State Council on December 11, 1839 in the village of Kasatkina-Rostovskaya, June 20, 1841 in the village of Landberg) it is clear that the above rule was applied not only to children born during marriage, but also to those who were born before marriage, if only their birth was declared legal (cf. decisions on d.d. Baturina and Selenskaya in the Journal of the Ministry of Justice, October 1861 and February 1864). According to our laws, the main condition of legality is the non-conception of a child in a legal marriage, but its birth during the existence of a legal marriage; in this case, the circumstances preceding the marriage are left aside, unless the parents raised a question about these circumstances to deny the child’s legitimacy, or the parent’s recognition blocked the investigation of these circumstances. Following these principles, the State Council resolved the Aksakov case in 1856. It happened that the widow of Vasiliev, who died on September 26, 1836, joined on February 5, 1837, i.e. 4 months and 10 days after the death of her husband, into a second marriage with Aksakov, and 98 days after the second marriage, or 7 months and 18 days after the death of her first husband, she gave birth to a son, Nikolai, on May 14, 1837, who is recorded in the metric register as born of the Aksakovs, and in the formal list of her mother’s husband is called his son. After the death of Aksakov's father, his widow claimed her son's right to inherit after the Aksakovs. This gave rise to a dispute in which the Aksakovs argued that the young Nikolai, according to the natural law of birth, should be considered the son of the widow Aksakova’s first husband, Vasiliev, since his conception belonged to the period of her marriage to Vasiliev. However, the State Council recognized him as Aksakov, assuming that he was born in the legal marriage of his mother with Aksakov, and Aksakov’s father himself demanded a metric certificate in his name from the consistory and never disputed the legality of his birth, and the dispute between his relatives was brought up after two years had passed since his father’s death. A father’s renunciation of a child born in a legal marriage cannot be arbitrary, unfounded and unspoken: the father must declare his dispute and prove it, i.e. prove that, due to the circumstances of the case, the child born under his name could not have descended from him. In this case, the law does not give legal significance to one suspicion or doubt until it turns into a positive belief and is expressed in legal form. A baby born in a legal marriage enters, against the will of the parents, into a certain legal state, which can be changed and violated only by direct statement and evidence. It would be unfair to think that the recognition of some children born by his wife in a legal marriage as legitimate, and others as illegitimate, depends on the direct discretion of the father, often based on suspicion, stemming from passion and anger at his wife. If the father was silent, this silence should be interpreted in the sense of recognition of legitimacy; if he expressed any doubt about the legitimacy of the child, but did not argue within the prescribed period or throughout his life, his doubt, no matter how reliably it was expressed in the circle of family and private relations, does not serve as evidence of the child’s illegitimacy (see on this subject the considerations of the Senate in the case of Shirai and Zabotin, Sat. Sen. decision vol. I, No. 387). Let us point out the following matter. In a dispute over the inheritance after the noblewoman Marya Kiseleva, claimants came from different families to which the deceased belonged. Among other things, some persons proved their relationship with Kiseleva through Marfa Chemesova, who had died long ago, and opponents, refuting the rights of these persons, argued that Marfa Chemesova could not be considered the legitimate daughter of her intended parents and a legal member of the clan, since there was no metric record of her birth, and in the metric record of her death in 1834 she was shown to be 93 years old, therefore, according to numbers, she was born before the marriage of her parents. This dispute was decisively rejected by the final decision in the State Council, because from the case it was discovered that Marfa Kiseleva, during the life of her parent, was shown three times in confessional paintings as his daughter in the last century, although with a difference in age, and that the legality of her birth was not disputed by anyone either during the lifetime of her parents, or after that, during the century that followed; on the contrary, there are acts (certificate of refusal, deeds of gift, deeds of sale, mortgages, revision tales, minutes of the deputy meeting), in which she showed herself and was shown to be the mother and relatives of the daughter of her father Adrian Kiselev (see Journal of the Ministry of Justice 1861, No. 6). The soldier Dmitrieva, after her husband was recruited into military service, remained in the village, and 4 years later, on the erroneous news of her husband’s death, she entered into a second marriage, in which she lived for another 4 years and had a son; but when her first husband, who was still alive, returned, the first marriage was restored, and the second was declared invalid by a decision of the spiritual court. However, her son from her second marriage was recognized as legitimate, by a decision of the Senate, on the basis that during the marriage, which was recognized as illegal, his parents, being in cohabitation, recognized it as completely legal - marital (Sb. Sen. Resolution T. I, No. 482). Differences in foreign legislation. The above-explained assumption of the legitimacy of birth originated in Roman law; but among the Romans its meaning was closer than what we allow. The Roman rule: pater est, quem justae nuptiae demonstrant - meant: a child conceived in a legal marriage is considered legitimate; and according to our interpretation it means: a child born in a legal marriage is considered legitimate. And so, when it was necessary to determine the legality of birth, the Romans, following the physiological law, acted as follows: taking a known birthday, they counted the shortest period of pregnancy, i.e. 182 days; then the longest period was counted from the same day, i.e. 10 months. The difference between one and the other turned out to be within an interval of 4 months. The reasoning was as follows: the conception of a child could not be further than 300 days from his birth; for pregnancy beyond 300 days is not allowed; not earlier than 180 days from his birth, because a fertile pregnancy cannot continue less than this period. So, the conception of a child must necessarily be posited in the intermediate period between these extreme terms. This will be the legal period of conception; at every minute of this period, conception is possible, and may be considered in the interest of the child. So, if at least on one of the days belonging to this intermediate period, the child’s mother lived in a legal marriage with the alleged father, the child was recognized as his legitimate son; otherwise, the child was left without a father (cf. Savigny System. II. Beilage 3). The French civil code follows the same order (Articles 312–315), including its assumption in the period between 180 and 300 days. Prussian law is based on the same principles as ours. A child conceived or born in a legal marriage is considered legitimate; the minute of birth, and not conception, serves as the point with which the assumption of legitimacy and belonging to the clan is connected. It should be noted that our interpretation, the most extensive, turns out to be fairer in the reasoning that the position of illegitimate children in our country is not at all determined by law 24. § 17. Dispute about illegality and claim about the legality of birth. – Evidence of legality. - Jurisdiction of cases of this kind. – Claims regarding clan membership From the foregoing it is clear that the argument against the existing assumption of the legitimacy of birth is difficult, and it is not easy to destroy this assumption when it is combined with a previous state of legitimacy; if this state of legality (possession d'état) was recognized by the father of the child himself, the assumption receives irrefutable force. This recognition gains force against disputants even in the case when it was silent, for example, when the father did not deny the legality of the birth of the child, treated him as a son or daughter, took care of his maintenance and upbringing (Zak. Civil., Art. 125). The opposite claim is a claim for the legality of birth, against the existing assumption of illegality. This claim can be brought either by the person born himself or, in his place, by his heirs. In the first case, the right of action is not subject to any limitation period; in the latter case, if the born person died before reaching full adulthood or before the end of the case he started, his heirs can begin or continue this claim within 10 years (462 art. Law Court. Civil). This is how the law is expressed; from here it should be concluded that the heirs of the person born do not have the right to claim at all when he died of adulthood without filing this claim 25. To recognize the legality of a birth before the court, it is necessary to prove, firstly, the validity and legality of the marriage from which the birth resulted (if this circumstance is unreliable), and secondly, the birth itself from this marriage. The main evidence of the legality of birth is recognized as formal extracts from registry books, which are subject, in case of doubt or dispute, to comparison with the original books 26 . But it often happens that the original metric books cannot be found due to their destruction, or that there was no metric record at all. In view of the metrical record, a dispute may be raised about its authenticity and reliability. In such cases, confessional lists, genealogies, city philistine books, formal lists of parents and audit tales are accepted as evidence; finally - in addition to these acts 27 - the testimony of witnesses, the priest, the clergy and the recipients who participated in the baptism of the child. However, witness testimony may not be valid against acts, but only in agreement with them (Articles 120–122 of the Civil Code and Articles 459–461 of the Civil Code). Witnesses serve as the only means of evidence in cases where, despite the reliability of the metrical act, doubt arises about the identity of the person shown in it. Finally, of particular importance in matters of this kind is the person’s quiet enjoyment of the status of a legitimate child in the family, or the so-called possession d’état. This state is confirmed by a number of events indicating the constant and indisputable recognition of a person’s legal name. The main of these signs is the name that was assigned to the child as a legal member of the family (nomen), treatment of him as a legitimate child (tractatus) and recognition in the family and in society as the child of the parent for whom he is listed (fama). In our law (125 art. Gr. Zak.) it is said that for a person born into a marriage too early after marriage, proof that the father did not deny the legality of his birth is recognized as testimony or letters from the father, or certification that the father treated him as a son or daughter and therefore took care of his maintenance and upbringing, and that this person always unquestioningly used the name of the surname of the one whom he calls father 28. In the Savitsky case, the Senate (1st Department, 3rd Department in 1868) recognized that on the basis of Art. 122. 1 part X t. (now Art. 459 of the Law Court. Civil.) The main predominant evidence of the legality of birth is the certificates issued by the spiritual authorities named in that article. Therefore, the issuance of certificates by these authorities alone does not constitute an exclusive and necessary condition for their validity, but they are given only the main priority. And in 147 art. Zach. Court. Citizen (320, vol. X, part 2, 1857) it is generally said that registry books, extracts and certificates from them belong to the acts of state. As a result, the Senate recognized as sufficient evidence of the legality of the birth of the Savitskys the metrical register from the parish church, certified by the dean, the metrical extract from the parish about death and a copy of the family list, since these documents were not disputed. Wed. Cass. decide 1875, N 608, 1879, N 90. For schismatics, evidence of birth from a marriage recorded in the register of births, on the basis of the rules of 1874 (see § 9), are these books or duly certified extracts from them. When the birth is not recorded in the registry book, or when the correctness of the entry made in this book is disputed, then genealogies, city philistine books, audit tales, formal lists of parents and testimony of witnesses are recognized as evidence 29 . Controversial questions about the legality of birth belong to the so-called preliminary questions (questions prèjudicielles), because they relate to the determination of the legal qualities of a person, which are assumed to be necessary for the acquisition of certain rights and the use of them; therefore, whenever a doubt arises about these qualities, it must be resolved before the question of the law presupposing these qualities. These are questions about the right to claim, preceding questions related to the essence of the claim itself. In our practice, questions of this kind usually arise in conjunction with other issues in a controversial case and are resolved together with them; for example, when in a patrimonial case regarding inheritance, redemption, etc., or in a claim, one party challenges the other’s very right to claim, on the basis that one person by birth cannot be considered the legal successor of another, this dispute is clarified in a general contest on all subjects of the case and is resolved in a common decision. In addition, we could, of course, bring a special claim regarding the legality or illegality of birth, although the rules of civil proceedings according to X t. St. did not indicate special jurisdiction for such cases. In the new statute of civil proceedings (Articles 1347–1356), a separate chapter (2nd 3 sections) contains the rules for the production of cases on the legality of birth: their jurisdiction is determined in the same way as the jurisdiction of marriage cases, by the place of residence of the defendant; if there is no defendant in the case, then the plaintiff’s place of residence (Article 1339 and interpretation of Article 1346 as published by the State Chancellery). It is rightly noted 30 that a claim for the legality of birth should be distinguished from a claim for membership in one or another clan. In the first case, one must either recognize the legal membership of a person in a certain family, or reject it and recognize the illegitimacy of the birth; in the latter case, the court must classify the born person as either one or the other, without leaving him in a state of illegitimacy, about which no question arises. It is impossible not to recognize the differences in the essence of both claims, but they do not differ in form, for by assigning a person born to one of the two clans, the legality of the family name is also determined: in both claims, the recognition of the child by his alleged parents has equal force; in both cases, the decisive force of the legal attribute is assigned to the birth, and not to the conception of the child. A metrical record is nothing more than a witness to an event that took place with the participation of clergy in a church. This is an event, and its witnessing has legal significance, as an act of state, but legal discussion of this event is not subject to either the clergy when recording a note, or the spiritual consistory, when verifying the correctness of the entry: here one can only argue about whether the entry was made correctly, in accordance with the event, in accordance with the legal form. Church authorities do not always correctly understand the limits of their competence in this sense and sometimes act beyond them. Thus, when recording the baptism of a child, it is necessary to record only its origin according to the present event, without touching on the legality of this origin. If there is one mother who is a girl, then it is noted that the child was born from a girl, from which it is clear that the child is illegitimate. But if a child was born from a wife, in the absence of a husband, no matter how long this absence lasts, the person making the record does not have the right to speculate about whether the absent husband could be the father of the child, but notes the birth of such and such a husband from the wife. A birth from a widow is celebrated without comment: whether it is legal, a secular court will judge if necessary. The child was born during a second marriage, which followed shortly after the first, and was born earlier than the normal gestational age: when registering, one cannot speculate on which father he comes from; The consistory should not decide this either; if necessary, the secular court will sort it out. § 18. Relationship of legitimate children to parents. – Legitimation and methods for it. – Illegitimate children under French law. – The right of illegitimate children to demand maintenance from their father. – Legal status of illegitimate children So, the legal connection between parents and children generally arises from the legal marriage into which the children were born; but even outside a legal marriage, the birth of children from parents is possible, through free copulation. A natural connection arises between such parents or children, which cannot be denied; but here one face of the mother is determined in itself by the event of birth. And when the identity of the father who participated in the conception of the child is unknown or in doubt, there is no longer that sign that determines the identity of the father in a legal marriage (justae nuptiae patrem demonstrant). So, the connection of a child born out of wedlock with the mother is undeniable, and the connection with the father appears only when the father declares himself as the father. This declaration is given effect by the legitimation of illegitimate children, or by the recognition of the children by the parent. The effect of the legalization is that children born out of wedlock, outside the legal connection with the civil personality of the parents, enter into this connection to the same extent as if they were born in a legal marriage; This restoration is accomplished by force of law (legitimatio). The main methods of legitimation are the following: 1. Subsequent marriage of parents (subsequens matrimonium). 2. A special act of the supreme power on legitimation (rescriptum principis). These forms, having arisen in Roman law, were transferred to new legislation (French law completely rejects the latter form). However, some legislation (for example, French) denies legalization to children born from adultery or from intercourse between close relatives who could not marry without special permission from the authorities. The effect of legitimation is usually raised to the minute of marriage, but does not extend beyond this minute, even if the legalized children were born long before the marriage: the state that preceded the marriage of the parents remains outside the law and out of connection with the rights of the legal state; therefore, in this state, the inheritance revealed in the family of the father or mother does not concern them. Italian law (Civil Code 198 et seq.) favors legitimation in all cases where there is no reason to fear that the interests of the legitimate family may suffer from it; under these conditions, it allows legitimation by definition of the supreme authority, and allows children, even after the death of their parents, to ask for legitimation, if the parents in a will or other public act stated their desire to legitimize their children. In some German legislations, especially in Prussian, half (minus plena) judicial legitimation of children is used, which serves to restore not family rights, but an honest name from a gap. Regardless of the legalization that gives the relationship of parents to children the full property of legal, there may be an incomplete, but legally recognized, relationship of parents to their illegitimate children (enfants naturels). For this purpose, French law absolutely requires positive recognition of the children by the father. This recognition can be made in the act of birth of the child itself or in a special public act, notarial or judicial (by the way, in a public will). In addition to this voluntary recognition, French law, in order to avoid confusing and tempting processes, completely prohibits (except in cases of abduction and abduction of a woman) children born out of wedlock from proving their descent from a known father (la recherche de la paternité est interdite. C. civ. 340, 341), but allows a claim for descent from a known mother (recherche de la maternité). In this prohibition, French law agrees with Roman law, which prohibited such claims for the paternal name of illegitimate children (liberi spurii et vulgo guaesiti patrem non habent). On the contrary, German law, in accordance with canonical rulings in the West, has always allowed such claims, moreover requiring proof that during the period of conception of the plaintiff (from 6 to 10 months before birth) his alleged father had cohabitation with his mother. Italian law (Art. 193) allows, under certain conditions, the right to claim maintenance from the illegitimate father if the patronymic is clear from a court judgment or a written document. The German rule, which does not agree with the Roman one, is consistent with the humane and fair principle of canon law, by virtue of which the seducer is obliged to marry a woman who has become pregnant by him or to marry her off with a dowry and, in any case, to take upon himself the maintenance of the child born with her. With this principle, current Saxon legislation is in accordance, and Austrian law (Article 1328) obliges the seducer to reward the mother of the child for all expenses associated with childbirth and to take the child into his care. Prussian law initially adhered to the same principles, justifying it both on moral and political considerations, for it was supposed to ensure the fate of mother and child to prevent and weaken the first impulse to commit infanticide. However, with the introduction of the Napoleonic Code in Germany, some legislation changed the view on this subject. In Prussia, the legislator decided to choose a middle measure between the French, which was too strict, and the German, which seemed too lenient. There were many inconveniences in the application of the previous law that stemmed from the ease with which seductive processes could be initiated by unscrupulous women, and an oath could be used to prove events that, by their nature, did not allow for ordinary certification. In 1854, a new law was passed in Prussia, which decreed that not only the mother of an illegitimate child is deprived of the right to demand remuneration for herself, but also for her child - maintenance from his father, if she herself turns out to be guilty, namely, if she accepted money or gifts from the seducer for cohabitation with him, was herself of depraved behavior or had, besides him, other lovers, etc. This ruling is thoroughly condemned for blaming the child for the actions of his mother; it is not found, except Prussian, in any other German legislation. Saxon law, even in the above case, when the mother had several lovers and it is impossible to determine from whom the child was born, not only does not exempt them, but binds them all together with mutual responsibility for the maintenance of the child. See about this: Arch. Civ. Pr. 1867, p. 341. Recognition by parents of illegitimate children establishes a personal connection between them and others, but not a tribal one; Such children have no legal connection with their father’s and mother’s relatives, but are related to brothers and sisters by blood. They bear and inherit the name of their parents or the one by whom they are recognized; inherit after their parents, but to a lesser extent with other children who are completely legitimate; come under the legal authority of their parents and their care (cf. Code civ. 756–765, 908, 383, 384, 158). But children born of adultery and incest (enf. adulterins et incéstueux) do not, according to French law, enjoy the rights of recognition and have only the right, in case of need, to demand maintenance (aliments) from their parents (C. civ. 762). In German legislation, the so-called Brautkinder, i.e., have a special legal position. children conceived or born by a mother from a person who previously promised to marry her, but did not fulfill the promise for any reason. Such children, if the father has recognized that they are descended from him, are equal to legitimate children in the rights to maintenance and inheritance after their parents, although they are not recognized as completely legitimate. The equation is fair, because the birth was preceded by a condition to enter into marriage, and if it had been fulfilled, the children would have been legitimized by marriage, but it was not fulfilled due to the evasion of one or the other party or both together, for which the children are not guilty. The law is silent about the inheritance of a parent after such children, but many believe that the father also has such a right if, through no fault of his own, the marriage condition remains unfulfilled (see about this Arch. f. Civ. Pr. 1855). Among Muslims, children from a criminal relationship between persons who are prohibited from marrying each other, and from relationships outside of marriage, are considered illegal; but recognition from parents and even from one father legitimizes children. In general, Muslim law is lenient towards illegitimate children: among Shiites, they are allowed to inherit after both parents (for Sunnis only after the mother), when there are no other heirs. § 19. Legalization of illegitimate children in Russia. – Legitimization of schismatic children. – When are children born in marriage considered illegitimate? – The condition of illegitimate children. – Legality of birth and state of the Baltic provinces illegal by law In our law, the legalization of illegitimate children until recently was not accepted as a correct and permanent establishment, although the idea that illegitimate children can be married has been preserved in the popular consciousness from church traditions. However, in the last century and in the current one, examples of illegitimate children being considered legitimate were not uncommon. The highest authority, and each time, at Her discretion, also determined the civil consequences of the confrontation. In 1801, the state. the council explained that all these orders should be considered an extraordinary action and the mercy of the Monarchs, based on the excellent merits of the petitioner or due to special circumstances, and in 1803 it decided that the associated children were restored to the full force of the rights belonging to legitimate children (cf. P.S.Z. N 20980; Gr. Zak., Art. 144). In 1829, the way was closed to all requests submitted through the commission of petitions for the legitimation and inclusion in marriage of illegitimate children and pupils: all such requests were ordered to be left without action (I vol., Uchr. Kom. Prosh., 41; Zak. Gr., ed. 1857, 144, note); however, requests for legalization continued to arrive, so that in 1858, the Secretary of State for accepting petitions was given a secret instruction on submitting, in the form of an exception from the general law, the mentioned requests to the Highest discretion, and on July 18 of the same year, a decree was issued on the procedure for announcing decrees on the legalization of children born before marriage (P.S.Z. 1861, N 33408 a), where it is said that the Highest commands on this subject are not published (Uchr. Sen. ed. 1892, 19 p. 1, note 3). With the abolition of the petition commission in 1884 and the transfer of the responsibility to accept and forward petitions brought to the Highest Name, first to the manager of the Imperial Main Apartment and then to the Chief Manager of the Own Office for accepting petitions, petitions for the legitimation and inclusion of illegitimate children in marriage receive movement on an equal basis with all other petitions, since they are not listed among those which should be left without consideration; therefore, in the new edition, part 1 x volume, note to art. 144 not included. However, it is impossible not to notice that the rights of those legitimized by the Supreme Decree cannot be the same, since they are determined not by general law, but each time in a decree, in accordance with the circumstances of each individual case; The conditions that give the right to ask for legalization also seem uncertain, therefore legalization itself, as the Highest Grace, does not and cannot replace legalization as an institution of civil law. In this regard, a significant gap was noticed in our legislation, to fill which in 1891 the State Council adopted an opinion on the legalization of illegitimate children for the Christian population. Based on this opinion, children born out of wedlock are legitimized by the marriage of their parents. Such children are considered legitimate from the date of their parents’ marriage and enjoy all the rights of legitimate children born from this marriage. Therefore, such children are assigned the rights of their parents according to their condition, the rights inherited after them and their relatives, and the right to maintenance; on the other hand, legitimized children are obliged to obey the parents who legitimized them on an equal basis with legitimate children and bear in relation to them all the responsibilities of legitimate children (Civil Law, Art. 1441 to Cont. 1891). The legitimation of illegitimate children is not accomplished by itself, by force of the parents’ marriage, but is carried out by the court at the request of the parents. For this purpose, parents must submit to the district court (where new judicial places have not been introduced - to the joint chamber or an equal court), at the place of their permanent residence or at the place of residence of the child being legitimized, a petition in person, and not through attorneys, attaching a certificate that the child descends from them, and birth certificates of marriage and the birth of the child, as well as birth certificates of previous marriages, if the present marriage was not the first, and the time of their termination. This petition must be submitted before the expiration of a year from the date of marriage of the parents of the person being legitimized, otherwise the reasons for the delay must be explained. Upon verification of the possibility of the child’s descent from those persons who recognize themselves as his parents, the existence of a legal marriage between them and the absence of obstacles to legitimation, the court issues a ruling on legitimation. If at the same time the patronymic or surname of the person being legitimized changes, which for the most part happens in practice, since illegitimate children are usually given the patronymic name of their godfather, and the surname is given by the parents, at their discretion, then the court ruling indicates under what name, patronymic and surname the person being legitimized was recorded in the registry register. An inscription on the court's ruling on legitimation is made on the metric certificate of the person being legitimized and is reported to the consistory for a corresponding note in the metric book; moreover, when one of the parents belongs to the Orthodox confession, the court issues, in place of the present metric certificate, a new certificate in the established form, which has the same force as the metric certificate. Cases of legalization are considered in the district court behind closed doors and are decided after hearing the conclusion of the prosecutor (Constitution of the Civil Court, ed. 1892, art. 14601–14607; Law of the Civil Court, art. 467–470). By the highest orders of December 8, 1850 and May 15, 1852, we allowed the legalization of schismatic children, which in this case can be called marriage. It was ordered that “the children of the sectarians, who will be married in St. the church and will give an obligation to educate them in the rules of the true faith, to recognize them as legitimate, without distinction whether they were born before or after the crown.” If one of two priestless surugs joins Orthodoxy or Edinoverie, then the children who joined with him are ordered to be recognized as legitimate. Finally, if only children, without parents, join the Orthodox Church, against the will of the parents, then they too should be recognized as legitimate. It is not known, however, whether in the latter case children can be heirs in the parental estate, for there is another decree, by virtue of which the children of schismatics who separately joined Orthodoxy can receive parental property only with the consent of the parents (see Collected resolutions regarding the schism of 1858, art. 168, 169, 552, 567, 568, 574 and Nile: Family life in schism. Issue 2, pp. 68 and 69). In 1874, with the publication of rules on the registration of schismatic marriages, schismatics were given an extensive right to legitimize by subsequent registration their children born from a pre-existing marital cohabitation. When, before 1874, the schismatics were recorded as husband and wife in the tales of the 10th revision, they were ordered to be recognized as legally married spouses, and the children born from those mentioned in Art. 1 of the rules of marriages after the tenth national census and therefore not included in the revision tales, can be recorded in the register of births at the request of themselves or at the request of parents or guardians so that their origin from the marriage recorded in the revision tale and the time of their birth are certified by the testimony of at least two witnesses. From these witnesses, as well as from parents or guardians who asked for registration, a signature is taken that the children being recorded are in schism from birth. When only one of the spouses is alive, or both of them have already died, then the marriage between them is not subject to entry in the registry register. But if between the spouses there was a permanent marital union concluded according to the rites of their beliefs, not contrary to the rules depicted in the Civil Laws (Articles 4, 5, 12, 20, 21 and 23), then the children born from such a union can be recorded in the registry at their own request or at the request of parents or guardians, and the following is observed: a) in advance of the registration of these children, asking for this, the name, nickname and condition of both the children themselves and their parents must be declared to the police or volost administration; These departments comply with the procedure prescribed in Art. 4–6 and 10 rules; b) when registering, there must be at least two witnesses who, together with the parents or guardians who requested the entry, must certify both the time of birth of the children being registered, and that: 1) that these children came from a marital union that meets the conditions specified in this article; 2) that the married spouses, or one of them, are no longer alive and 3) that those recorded have been in schism since birth. Everyone interested is allowed, however, to protect their rights, to challenge the validity of the marriage recognized on the basis of the audit tale, as well as the legal origin of the children shown in the audit or entered in the registry, in accordance with the rules set out above. But those who challenge the validity of the marriage must prove that between the recorded husband and wife there was no permanent marital union concluded according to the rites of their beliefs, or that their union was concluded in violation of the rules established in Art. 4, 5, 12, 20, 21 and 23 Civil Laws (vol. X, part. 1); moreover, disputes against the validity of a marriage or against the legality of the birth of children shown to be living in it must be submitted to a court subject to judicial determination no later than two years from the date of promulgation of the law of 1874, if the validity of the marriage or the legality of the birth of children listed in the audit tale is disputed, and in other cases - from the day the children are recorded in the registry; From this, disputes of the persons themselves, recorded as someone's legitimate children, are excluded: their disputes against the correctness of such testimony can be presented at any time. Decrees recognizing the validity of marriages and the legality of the birth of children of schismatics in the past do not have retroactive force in cases of property and cannot serve as the basis for any claim regarding property for the time preceding the publication of this law. So, children born out of wedlock are considered illegal in our country, even if the parents were subsequently legally married. These children are illegitimate from birth. But, in addition, children born under the auspices of marriage may also be declared illegal if it is proven: 1. That they were born with the participation of a third party, i.e. from adultery of a wife with a third-party man or of a husband with a third-party woman; but the proven birth of one child from adultery does not serve to condemn other children; it must be proven of each one especially that he was born adulterously. When a marriage is dissolved for the wife's adultery, this circumstance alone does not discredit the children born to her in this marriage, if she did not hide their birth from her husband and if there is no other evidence of their illegitimacy; but when a marriage is dissolved due to the proven inability of the husband to cohabitate in marriage, it can be concluded with certainty that the children born in this marriage were not born from the spouse, for, according to our law, a marriage is dissolved only for natural, and not for incapacity that arose after the commission, and therefore in this case the children are directly recognized as illegitimate (Civil Law, Art. 49, 132, 134, 135). 2. If it is proven that children were born to a widow or divorcee after 306 days from the termination or dissolution of the marriage (132, paragraph 3). It is assumed by law that 306 days is the longest possible period of pregnancy. But we should not forget that assumption is allowed in general, but in a particular case it may give way to the obvious reliability of the event. The assumption is based on a law derived from observation of natural phenomena; but in a number of all sorts of phenomena there may be anomalies, and experience indicates the possibility of individual cases of pregnancy lasting longer than 306 days. In such cases, when such a phenomenon has been reliably proven, it follows, in accordance with the spirit of our law, which complicates disputes about the legality of birth, to allow, contrary to assumption, recognition of the legality of a child born later than 306 days after the termination of the marriage. 3. If a marriage in which children are born is declared illegal and invalid by a formal verdict of the spiritual court, in accordance with Article 37 of Art. Zach. Gr. However, if one of the spouses was involved in an illegal marriage by deception or violence, then the fate of the children can be determined by the court at the special merciful discretion of the Supreme Power (Article 132, paragraph 4, 133). The condition of illegitimate children is left without any definition in our legislation. The law completely denies their legal connection with their parents by nature and with the clan of their father or mother, does not at all recognize mutual inheritance rights between them and their parents and relatives (see Sat. Senate Resolution T. 2, No. 253) and is silent even about parental authority over them 31 . The Criminal Code stipulates (Article 994) that in the event of illegal cohabitation between an unmarried person and an unmarried woman, if a baby is born, the father is obliged, in accordance with his condition, to provide decent maintenance for the mother and baby; but the obligation in this case does not stem from a civil legal relationship, but is based on responsibility for the consequences of guilt and misconduct. Similarly, the civil law (Article 663) imposes on the person guilty of rape the obligation to provide funds for the maintenance and upbringing of an illegitimate child, and on the person guilty of involving the other party in a marriage that was subsequently declared invalid due to coercion or fraud, the obligation to ensure the fate of the children born from this marriage (Article 666. See about this the Förster case in the Court. Bulletin, 1868). The obligation to ensure the maintenance of a child born out of wedlock and his mother, although it should be recognized as a civil measure, is classified by law as one of the measures inextricably linked with the punishment defined in Art. 994. Codes that can only be adopted by a criminal court when considering a case of illegal cohabitation (Cass. decision. corner. 1868, No. 659, 694; 1870, No. 429). Therefore, such a claim for maintenance is subject to consideration by a criminal court, and must be resolved by this court in the event of termination of the criminal case for one of the reasons specified in Art. 16 and 356 Est. Corner. Court. But if the criminal court leaves such a claim without consideration, and its decision, despite the complaint, is not canceled by the high court, then the plaintiff is not deprived of the right to bring the same claim in a civil manner (Cass. dec. civil, 1873, N 1383). Is a father obligated to provide maintenance to his illegitimate children? This question, in view of the fact that the law provides for the possibility of raising illegitimate children by their parents (Vol. X, Part I, Art. 176) and indicates the duty of the father, in accordance with his condition, to provide in a decent manner the maintenance of an infant born from rape or illegal cohabitation of an unmarried person with an unmarried woman, until the illegitimate child reaches the age at which he is able to support himself (Code. Art. 944, Vol. X, Part I, Art. 663), Gr. Cass. Dep. decides in the affirmative, finding it correct to conclude from these isolated cases that, according to the general meaning of our laws, there is a natural connection between illegitimate children and their parents, and that from this connection flows the duty of the father to assist the mother in decently supporting the illegitimate until the latter is able to support himself (1893, No. 105). The legal consequences of illegitimacy are mentioned in Volume III, Const. Service Prav., ed. 1876, art. 48, 49, 751; vol. V, ed. 1893, Const. on direct taxes, Art. 482, adj. Art. 38, paragraph 5; 46, 47; Vol. IX, 522. a) Outside of legal marriage, our law does not recognize legal kinship, and therefore, property rights that flow from legal kinship and are established through legal kinship. Therefore, illegitimate children do not have a legal hereditary relationship not only with their father, but also with their mother. It is impossible to allow the contrary until our law recognizes the legal relationship to parents based on illegal origin. See the case given in Journal. Min. Just. 1861, N 12, p. 585. b) Based on Art. 86 Est. Gr. Court. сделан был отвод против свидетеля на том основании, что он незаконнорожденный сын одного из участвовавших в деле. The question arose: is it possible with the force of 1112, 1113 and 136 Art. I part X t. recognize the parental relationship in this sense. Сенат рассудил, что хотя закон не признает юридической связи незаконных детей с родителями и взаимных наследственных прав между ними, но из сего не следует, чтобы закон отвергал и всякую естественную между ними связь, когда она не подлежит сомнению или признается самими родителями. Regulations on illegal children are placed in the chapter on the union of parents and children. Итак, установляя известного рода отношения между родителями и незаконными детьми, закон тем самым признает естественный союз не только между незаконнорожденным и его матерью, но в известных случаях и его отцом (напр., Угол. Ул., ст. 994). Посему Сенат, имея в виду цель отвода (сомнение в беспристрастии), допустил отвод в настоящем случае (Касс. реш. 1872 г., N 686). c) Illegitimate children brought into education. house, are returned to mothers or relatives unconditionally, within 3 years from birth, if brought with metric. extracts; otherwise - within 6 weeks upon delivery. After this period, they are returned only conditionally, i.e. upon certification of the trustworthiness of relatives and on the contribution of a certain amount to provide for the pet (P.S.Z. 1871, N 49757, art. 2, 3). Legitimate children are not accepted for nursing in education. house, except excl. cases - the death of the mother or extreme illness and poverty, and then only up to the age of one. Ibid., art. 5. Foundlings in education the house, if the parents open it, will be returned to them without fail. Legality of birth according to the law of the Baltic provinces. Children who are conceived or born in a legal marriage are recognized as legitimate. Anyone born no earlier than 182 days after marriage is presumed to have been conceived in marriage; born no later than 10 months after the termination of the marriage is assumed to be born in marriage. In the event of a dispute, these assumptions must be refuted with evidence, but the dispute is eliminated if the father recognized the children as his own. After a divorce or termination of marriage, within 30 days, if she is pregnant, the wife is allowed to protect herself by making a statement to her husband or his closest successors: then the husband or relatives can ask for an examination of the woman, but if they did not ask for this and did not argue upon notification that the woman is pregnant from her ex-husband, then they are obliged to recognize the child as legitimate; but the omission of the mother in the application does not harm the one born from her, who can always prove his legitimacy (Ostz. Gr. Zak. 132–147. These regulations are taken from Roman law). Illegitimate children can look for their father and prove who their father is. The father is the one who is convicted of having had intercourse with the mother of the child no earlier than 10 months and no later than 182 days before his birth. But if it is proven that at the same time the mother had relations with others, then the father is released from paternal duties. These duties consist of care and maintenance, but are not associated with parental authority. The obligation of maintenance also passes to his property upon the death of the father. The subsequent marriage of the parents legitimizes the children in all rights, but only from the time of marriage (Ostz. Gr. Zak. 163–174). § 20. Personal relations of parents to children. – Roman and Germanic types of parental authority. – Parental power under new legislation and its main manifestations. – The right to education, especially religious education. – Separation of power in case of separation of spouses. – Choice of occupation and title. – Parental right of punishment, direct and through government. – Termination of parental authority and separation of children The relationship of children to parents, in itself simple when understood by natural and moral feeling, appears in many of its accessories as an artificial institution, when it appears in the form of parental rights and parental authority, as a legal relationship. This power is primarily the power of the father, and the more inequality in the mutual relations of husband and wife among the family, the more it increases, the stricter the father’s right and power over children appears: as the legal principle in the relationship between spouses softens, it softens in relation to the children of both parents. Roman law knew paternal power (patria potestas), ruling over the entire house until the end of life - over children, grandchildren, great-grandchildren. In a strict marriage, the mother occupied a place slightly higher than her sister in relation to her children, and after the death of her husband, she could even come under the guardianship of her adult son. In later Roman law, this attitude changed: a mother (or grandmother), having become widowed, could be allowed to take custody of her children and grandchildren. Paternal power in Rome approached the character of property rights: it contained the right to life and death of children; Even in later Roman law, it was not forbidden for a father to sell his children in extreme need. And the termination of paternal power had a formal legal form among the Romans, the property of a concession of material rights, so that in some cases (namely when an emancipated son received an inheritance from his mother), for enjoying the benefits of emancipation, the father had the right to receive remuneration from his son (praemium emancipationis). A distinctive feature of the new legal relationship between children and parents is that the moral character in it prevails over the legal one: children are members of the family and live the same life with their parents. In this natural moral relationship there is no place for the Roman principle of unity of personality (unitas personarum), due to which the personality of the son completely disappeared in the person of the father, and between them there could be no legal relationship, which exists between individuals. In contrast to the Roman, the Germanic principle of parental power is a moral principle, the beginning of protection, patronage and care (mundium). Moreover, according to the new concept, parental power belongs jointly to the father and mother. In the normal functioning of relationships, there can be no question of to what extent the mother’s power extends under the father; but the mother’s right, even in the new legislation, despite a significant change in concepts, is a limited right, compared to the father’s, and secondary. The father has decisive power, and the mother's will gains strength only when she takes the place of the father. But if the mother is alone, without a father, her power is usually not sole, but is shared with her guardians. Individual manifestations of parental power stem from this principle of care, on the one hand, and obedience, on the other. According to the new legislation, this power, to a greater or lesser extent, relates to the following subjects. Parental consent is required when children marry. Parents can then appoint guardians for their children. A mutual right to assistance and maintenance arises between parents and children. Parents can deprive their children of their inheritance; Parents may in other cases, and in some estates, appoint heirs to their children for the future (substiutio pupilla-ris). Children are limited in their right to seek justice against their parents, file a complaint against them, or testify against them. The most important manifestations of parental power, during the period of its full operation, relate to the right of education and the right of punishment. 1. Raising children is primarily the natural responsibility of parents; therefore, in order to fulfill this duty, parents certainly have the corresponding right to direct this upbringing at their best discretion. State power does not interfere at all in this matter of private home life; But there are subjects of education that are considered so important for the state and society that some legislation declares them obligatory for everyone. These subjects are religious education and schooling. Religious education begins with the baby’s initiation into the Christian church through the sacrament of baptism. In some states of Germany, parents are obliged by positive law to immediately baptize their children and, in case of evasion, are forced to do so. In Prussia, the rule has long been in force that if a father leaves a child for 6 weeks without baptism, a guardian can be appointed to the child (see Richter, Kirchenrecht. § 238). This rule was abolished in 1874 by the new marriage law. In the initial period of upbringing, the participation of the mother undoubtedly predominates, and it is difficult to imagine that the rights of the father could be in any way violated by this activity of the mother and that it would be proper for the law to interfere in the mutual relations of the spouses regarding this upbringing. However, Prussian law, so rich in definitions, also touched on this subject, ruling that a father before the age of 4 has no right to take a child away from his mother (nicht entzoqen werden. Pr. Ldr. II, 1, 70–73). When separation or divorce occurs, the question arises about children: which of the spouses keeps them, which of the spouses has the right to raise children? This issue is resolved by the court in the divorce judgment itself. Children are usually entrusted to the innocent spouse, and the guilty one undertakes to participate in the provision of funds for their upbringing. However, mutual agreement on this between the spouses is allowed: either the division of children, according to gender, between father and mother, or, when both spouses are unreliable, the children are entrusted to guardianship. Prussian and Austrian laws allow the mother in any case to keep young children with her until the required age (Pr. Ldr. II, 2, § 93–96; Oest. Ges. § 142; Code civ. 302–304). Controversial issues about which parent has the right to children may arise in cases where the parents live separately or when the parents' marriage is dissolved. Legislation is scanty with definitive regulations for these cases. When parents live separately, judicial practice gives, as a general rule, the father a preferential right to children; but already Roman law, of the imperial era, allowed the possibility of giving children to the mother when the father was of bad behavior, ob nequitiam patris. And the practice of foreign courts allows numerous exceptions from the general rule, guided by concern for the benefit of children. Children are given to their mother not only because of the father’s unreliability, but also for other reasons, for example. due to the young age of the children, requiring maternal care, or gender, requiring female upbringing, due to the sickly build of the children; it is taken into account which of the parents, due to their condition and occupation, has more means and opportunities to raise children, etc. In the event of divorce, two rulings of Roman law have served as the main guidance for judicial practice since ancient times. One says that children should not be divided between separated spouses solely on the basis of gender, but the judge must judge in each given case whether the children should remain with the father or the mother and be raised. Another decree (Novel 117) is as follows. When it comes to divorce between spouses, the children born from the marriage should in no way suffer damage from the dissolution of the marriage, but are called upon to inherit after their parents, and without a doubt should receive their maintenance from the funds of the father. If the reason for separation is given by the father, and moreover, the mother does not enter into a second marriage, then let the children be raised by the mother, and the father will be responsible for the costs of education. If the marriage is dissolved due to the fault of the mother, then let the children remain and be raised by the father. If it happens that the father has little means and the mother is rich, then let the children, who are meager in their means, remain and be brought up by the mother. Just as rich children are forced to provide support for a poor mother, so justice demands that a rich mother also support her children. From these decisions it follows that children are generally provided to the innocent spouse, that the father or, in general, whichever parent is the wealthiest is responsible for providing the means for raising the children, and, finally, that in doubtful circumstances the question of who to give the children to is decided by the judge based on the benefit of the children and the character and duties of the parents. The rights of the latest legislation mainly expire from this resolution. If there is an agreement between spouses during a divorce regarding children, then their fate is determined by this agreement; and when it is not there, the instructions of the law are necessary. According to Prussian law, the education of children is granted, in the event of divorce, to the innocent party; and when both parties are innocent, the children are given to the mother until they are 4 years old, then they go to the father. The costs fall on the father, unless it turns out that he has no means, and the mother has the means. But the mother and father are not exempt from participating in expenses. Austrian law has a similar regulation. According to French law, children are given to the spouse who filed the divorce; but the court may, at the request of relatives or the prosecutor, order otherwise if it is necessary for the benefit of the children, i.e. may entrust them to the care of another spouse or give them to a third party. In any case, parents are not deprived of the right to see their children, to observe their upbringing, and are not relieved of the obligation to provide funds for their upbringing, depending on the condition of each. (See about this article by Heinzerling in Arch. civ. Pr. 1872) The new laws of this century are distinguished by their desire for religious tolerance and the equalization of religions and freedom of conscience. But this desire often goes to extremes and, instead of ensuring freedom of conscience, introduces restrictions on it. This can be seen especially in laws regarding the upbringing of children. Thus, the Austrian law of 1868 establishes as a general rule that illegitimate children must belong to the religion of the mother; up to the age of 7, it is up to parents to raise their children in one religion or another; but from 7 to 14 years of age, children must remain in the faith in which they were before the age of 7: during this time, therefore, for example, a Jewish child, even with the consent of the parents or guardians, cannot be baptized. Parental rights are subject to the greatest restrictions in mixed marriages between persons of different confessions, when the difficult question of whose faith - in the faith of the father or mother - the children should be raised is being resolved. This issue became of particular importance in Prussia for marriages between Catholics and Lutherans, for the Catholic Church, denying the legality of the Evangelical confession, absolutely demanded that children born from these marriages be raised in the Catholic faith. This resulted in embarrassment of the conscience of the father or mother; differences of opinion arose between the spouses to disrupt family peace and the intervention of civil law was required to resolve it. In Germany, it has become customary, at the very conclusion of mixed marriages, to determine by mutual agreement in whose faith the children should be raised; and when there was no special agreement, the controversial issue was resolved in different places differently: the religious education of children was left to the discretion of the father, as the head of the family, or it was accepted as a rule that sons follow their father’s faith, and daughters follow their mother’s faith (religio sequitur sexum). Frederick II made this rule binding for Prussia (Pr. Ldr. II. 2, § 76) in case of disagreement between parents, but in most of the German states it is changed, and the will of the father is given decisive force. In 1803, this rule was changed at the behest of the king, who found moral inconvenience in the different religions of children of the same house. It is supposed that children should be raised in the faith of their father. During the lifetime of both parents, an agreement in the opposite sense is allowed between them. But after the death of one of the parents, the legal rule is observed unconditionally. Upon reaching 14 years of age, everyone is free to choose the faith they want. In France, the decisive will of the father is derived from Art. 1388. civil code. At the same time, new legislation does not allow pre-drafted agreements on this subject and recognizes them as non-binding for spouses if a disagreement subsequently arises. It is assumed that all such agreements are not free and are drawn up under the influence of momentary impressions, or third-party clerical suggestion, and cannot bind the conscience of the parties to the agreement, for the subject of the agreement is faith, a personal feeling that is not subject to contractual definition. In Austria, until the latest reforms, the civil law on this subject was consistent with the requirement of the dominant church that children be raised in the faith of a Catholic spouse. The upbringing of a child, as he grows up, should serve as his preparation for a certain activity or for a special title, and therefore the father, without a doubt, has the right to choose in advance the type of future activity for his children and give them the appropriate education and direction; but, on the other hand, the choice of activity and title is a matter of personal will, and on this subject, contradictions and clashes between parents and children are possible. To resolve such conflicts, the Prussian law alone (Ldr. II. 2, § 112) stipulates that in the event of an insurmountable aversion of the son from the type of activity to which the father forces him, the difference of speech between father and son is resolved by the guardianship court with the participation of relatives and the teacher. Parental right of education in some German states is limited by the law of compulsory education, by virtue of which parents are absolutely obliged to send their children, upon reaching the required age (6–12 years), to schools maintained at the expense of the communities and the state. Violations are subject to fines, and in other cases the law threatens parents with imprisonment. This law is applied most strictly in Prussia, where compulsory primary school was initially established for church purposes, i.e. in the interests of Protestantism, and recently the state authorities, with the help of the liberal party, insist on the strict application of this principle in order to use the school as a weapon in the fight against the Roman Catholic and clerical parties. The question of compulsory primary education is one of the fashionable issues of our time, and the liberal party everywhere demands, along with the complete secularization of the school, compulsory education in the new school. But everywhere the common sense of the people struggles with both directions. Thanks to this rebuff, the law on universal compulsory education was not passed in 1874, either in Italy, where the ministry insisted on its adoption with great fervor, or in England (Parliamentary meeting, June 30). 2. For educational purposes, the father has the right of supervision over his children, by virtue of which he can demand that the children not be separated from him, and the right of correction, by virtue of which he can subject the children to punishment. It is difficult to determine exactly to what extent the father's power can extend in this regard, and one cannot help but fear that the entire moral attitude of children towards their parents would change its form, and the feeling of mutual goodwill would be violated, when the law began to analyze and define the rights of parents in relation to children and the rights of children in relation to parents. There may, however, be cases in which, in order to protect the persons of children from excessive and arbitrary restraint, it is necessary to establish a legal rule and open the way to the intervention or assistance of governmental authority. French law is the most definitive on this subject. The son cannot leave the parental home without permission and otherwise returns to his father by force; an exception is allowed only for those entering military service by hunting, and then at the age of 20. To punish children, the father has the right to act through the government. Upon one request of the father, the president of the court orders the son or daughter to be imprisoned for a period of not more than one month; but this measure applies only to children who have not reached the age of 16 and do not have their own separate property and title, and to children who do not have a stepmother; otherwise, the father must act by way of a complaint, indicating the reasons, and his request is subject to discussion with the participation of the prosecutor, and the term of imprisonment can be increased to 6 months. The mother, in any case, can only act in the latter way and loses the right to ask for punishment for the children if they have a stepfather. Children are given the right to complain about an order, but not otherwise than after it has been put into effect (Code civ. 374–383). In the new world, parental power, by its nature, cannot be the lifelong right of the father: although the moral relationship of love and respect between parents and children has no limit in time, the legal property of power continues in this regard only as long as the children need support, protection and replacement or addition of their legal personality. No matter how simple and natural this assumption is, no matter how consistent it is with the new idea of ​​​​parental authority, it cannot be said that it is sufficiently clear in law and in practice. The reason for this is partly the very property of the family relationship, in which it is not always convenient to separate the legal side from the moral side through a unilateral legal analysis, and partly the continuing operation of the principles of Roman law, to which in the West sometimes involuntarily both science and practice are subordinated in the interpretation and application of institutions that have borrowed their basic image from Roman law. In a strict sense, it would be necessary to recognize that parental authority legally ceases with the entry of children into adulthood; but, not content with this beginning and following popular custom, some legislation (for example, Prussian, Wirtemberg, Bavarian), in addition to or independently of the age of majority, declare children free from parental authority when they have materially separated from the parental home, having acquired for themselves an economy and methods of maintenance that put them in an independent position. Other legislation (for example, Austrian) considers, in addition to coming of age, an independent reason for the termination of parental authority to separate a son into his own household, with the consent of the father. What exactly are the signs of such an independent position (gesonderter Haushalt) and whether a daughter can establish it for herself, in addition to marriage, in order to free herself from power, there is still quite a lot of controversy about this in practice. This heteroglossia is understandable in a subject in which the law, having rejected the strict forms of legal formalism, has not yet had time to develop guiding principles that are sufficiently firm and clear. Regarding daughters, everyone agrees that by entering into marriage and under the new authority and protection (mundium) of the husband, they are freed from parental authority unconditionally; the same is true of a son who marries when he establishes his own house and his own separate household; it is assumed that the parents, when they agreed to their son’s marriage, consider him capable of managing himself and his property. The Roman form of emancipation, having completely lost its strict legal meaning, has, however, retained its name in some new legislation, which is not quite accurately applied to those cases in which parental authority is granted by a voluntary act to recognize their children, even before reaching adulthood, as mature enough for independent activity and free from parental authority. But, on the other hand, many of the German laws provide the father with the right - by statement before the subject authority - to stop the son from reaching full adulthood, for legitimate reasons. § 21. Relationships of parents to children regarding property. – The right of children to maintenance and allocation. – Parents’ right to children’s property. – Separate children's estate under Roman law and under new German legislation Relationships between parents and children regarding property. According to the spirit of the legislation of Western Europe, between parents and children there is no reciprocity in property relations that exists in such relations between spouses; Is it possible that one right to maintenance (alimenta) can be recognized as mutual between parents and children? All other property rights appear to be unilateral, predominantly in favor of the parents, to the children’s property. The right of children to parental property opens only in inheritance, upon the death of the parents. During the lifetime of parents, in only a few cases, and only some legislation, children are entitled to a part of the estate. This is precisely the case when, when one of the parents enters into a second marriage, the children from the first marriage are given the right to allocate the next part to them from the parental estate (Abschichtung, Abfindung. Pr. Ldr. II. 2, § 368–377). In other cases, sons, when they begin to live separately from their parents on their own farm, are allowed to demand from their parents, or even from their grandparents, the necessary assistance for the first establishment, but the amount of this assistance depends solely on the discretion of the parents (Pr. Ldr. II. 2, § 232–248). Austrian law allows such a requirement only on the occasion of the marriage of a son or grandson (Ges. b. 1220–1231). The laws on the rights of parents to children's property are much more detailed and definitive. All these laws more or less originate from Roman law and are found in legislation based on Roman law. In Rome, according to the old law, all relations between members of the house regarding property were reduced to the unity of the estate in the person of the father and the householder. By virtue of his power (potestas), he was considered the sole lord of all property. Children served him in the same way as slaves, instruments of acquisition. Any actions of the children that served to gain were turned in favor of the father; but the obligations concluded by the children fell on the responsibility of the father only under special conditions: when the obligation was concluded for the benefit of the father or the estate (actio de in rem verso) or when the father gave his consent to the transaction (actio quod jussu, de peculio, tributoria). Often, an older son received from his father a part of his father’s property for indefinite management, with the right to make orders, which became obligatory for the father. This possession, called peculium, was the original type of separate, although dependent, children's right to property under the parent. According to the strictness of Roman law, it was considered impossible to give a son separate property as full ownership. Then, also as an exception, another type of separate children's property appeared - official property, acquired in military or civil service (castrense et quasi castrense peculium): the son could already possess this acquisition with full right. Finally, in the later era of Roman law, when the original idea of ​​the unity of property in this regard had already undergone a significant change, a new form of filial right to property acquired by him, in addition to his father, from his mother and from other persons (bona materna, bona adventitia, extrinsecus advenientia); however, even in this filial property, the father still retained the right of lifelong use and management. These historical forms of children's property were transferred from Roman law to science and to the legislation of Western Europe; even now, despite the fundamental difference in the basic idea of ​​​​parental authority, which does not allow in real life a form of ownership similar to the ancient Roman peculium, some German scholars continue to apply this term to the rights of children to property during the lifetime of their parents. In any case, the Roman form - bona adventitia - served for Western legislation as the main form to which children's rights to separate property relative to their parents are reduced. So, for example, Prussian law (Ldr. II. 2, § 148–155) refers in detail to the types of so-called free property (freies Vermögen), to which children under their parents are granted a separate and complete right, not constrained by the general law of parental use. This includes: 1. Acquired by one’s own labor and industry; 2. Accrued in military and civil service; 3. Received as a reward, as a gift for a service, or as a will; 4. Gifted under the special condition of separate use from the parents. According to French law, only the property of the first and last of these categories are placed at the full disposal of the children as their separate property, and all the rest are subject to the general law of parental use; but the use itself does not continue for parents for life, but only until the children reach the age of 18. It belongs only to the legal parents; to one father with the mother, or to the mother when she is a widow, and is taken away from the mother when she enters into a second marriage, but in such a case is left to the father. This right, according to the interpretation of French jurists, is given to parents as a benefit in raising children and as compensation for caring for children (Code civ. 384–387). In all respects, Austrian legislation deviates most from the Roman model on this subject. While the children are still under the authority of their parents, any separate property that falls to the children passes into the management of the parents; but parents are obliged to account for income and profits in excess of the costs of raising children, and can turn this surplus to their benefit only when it is insignificant or when the property has reached the children under a special condition of parental use (Oest. Ges. b. 149–151). § 22. Parental authority under Russian law. – The right and duty to raise children in one and another religion. – The right to education and punishment. – Disposal of children’s personalities. – Cases in which parental consent is required. – Children following their parents into exile. – Termination and limitation of parental authority Parental power is the power of father and mother, since the will of both is not inconsistent; otherwise, the main ruler is the husband, as the head of the wife and home. When the father is no longer alive, power belongs to the mother alone; she, according to the general law, in this case has the right to guardianship of children, and according to the Lithuanian statute (for Chernigov and Poltava provinces, Zak. Gr., Art. 232, 264) she corrects guardianship together with older relatives of minors or even with guardians from outsiders; but the children should not be separated from her - sons before they go to school, and daughters before marriage. The place of residence of children is with their parents (cf. Pol. on residence permits, July 3, 1894, art. 10, 11), therefore, parents generally have the right to demand their young children from an outsider (cf. Cass. decision 1876, N 199). With foreign Asians who married Russian Lutherans (or Mohammedans), when leaving Russia for their homeland, children should not be released. Zach. Citizen 88, 96. A) There are no provisions in our law about how children should be distributed between spouses in the event of divorce or which spouse is given preferential rights to raise children. The ecclesiastical courts generally avoid making determinations on this subject, placing it under the jurisdiction of the civil government, and the civil court has no guidance in positive law. It seems, however, that our courts could, due to the lack of law and the force of Art. 1 and 10. Est. Gr. Court, take into account the rule of Roman law stated above in § 20. In the Lopukhins case of 1810, about disagreements between spouses, it was supposed to be determined in the State Court. Advice on who to leave children between separated spouses. The highest resolution was passed: to leave this matter as a family matter and not belonging to the government, without any further movement. For Roman Catholics The consistories decided in 1873 (P.S.Z. 52150) that at the very beginning of proceedings in cases of separation of spouses they decide which of the parents should support the children during the proceedings, and at the very decision of the case they mean which of the spouses should raise all or some of the children of the marriage, and up to what age, and who should bear the costs of maintaining and raising these children. The determination of the amount of these costs, if there is no agreement between the parents, and in general, property matters between separated spouses are subject to the jurisdiction of a secular court. B) Our laws do not stipulate which of the spouses has the priority right to raise children with them when the spouses live separately; The law does not provide for the legal possibility of such separation. This lack of definition cannot but be recognized as a shortcoming of our legislation, since the separate residence of spouses is a very common phenomenon, which should not be ignored by the law, since as a result of it, important issues arise that require a positive resolution. True, a husband can demand that his wife live with him, but in most cases he himself does not want this, and no law - including ours - takes upon itself to force spouses to live together unconditionally, i.e. regardless of the claim and demand, by force of state power. If this is so, then how can we resolve, due to the lack of legislative definitions, disputes about the right to children that arise between husband and wife? If we accept, as is usually decided until now, that the husband has the unconditional right to keep with him and raise his children, due to the unlimited power of the husband and father in the family, then, on the other hand, we cannot lose sight of the fact that the law itself, presupposing this power, at the same time presupposes the joint residence of the parents; Consequently, the unconditional appeal of children to their father, contrary to the wishes of the mother, who lives separately from him, would still not correspond to the legal assumption and would go beyond the legal limit. The husband, even if his wife left him without permission, does not want to live together with her, but wants to take her young children with him. In this form, there is hardly a legal basis to satisfy his demand: in this form, his demand will be illegal and inconsistent with the moral foundations of marriage, as our legislation presupposes them. (A similar case of the Zavadsky spouses was resolved in 1873, 2 General. Collection. Sen. in favor of the husband). If a husband does not trust his wife, if he accuses her of vices, of bad behavior, then vices and bad behavior do not give him (as well as the wife in the opposite case) either the legal or moral right to reject the wife with whom he entered into marital cohabitation for a lifetime. If her behavior has reached the point of such phenomena that provide a legal reason to ask for a divorce, then it is up to him to ask for it. Here's another example. Ivan, having married a widow, took with her the sons from her first marriage and then brought his children with her. When the stepchildren grew up, the stepfather did not like them or considers them unfit children and is burdened by living together with them. He invites his wife to leave them if she wants to live with him, otherwise he threatens to move to another apartment and take all his children living with her with him. In this case, I think that the husband’s demand for power will also not be legal, but arbitrary and violent, and he does not have the right to reject his wife and take away her common children because she does not want to reject her children. But all these and similar solutions to emerging issues may be sufficient only to protect and maintain the existing factual state, but are insufficient when it is necessary to determine the normal legal state. In the first example I gave, when the children are with a mother who lives separately, the father’s demand to take the children from the mother can be rejected, since it does not correspond to the assumption of the law. But the question becomes more complicated when, for example, the children are with a father who lives separately from the mother, and the mother demands to take them from the father. If she herself, having left her husband without permission, does not want to return to him, her demand should also be rejected as having no legal basis. But if she agrees to this, but her husband does not agree to accept her, what should she do in this case? It is impossible to place a wife with a husband against his will, and it would be inconsistent with the desire of the wife herself (which presupposes the husband’s consent to live with her), and when this is impossible, then how to resolve the issue of children? There is no direct reason to leave them with one father with the removal of the mother, and there is no direct reason to take them from the father and transfer them to one mother. Our law allows in some cases the dissolution of a marriage, but even in these cases it does not determine what to do with the children and which of the former spouses should give them to raise, or how to distribute them between the former spouses. C) The law does not deprive illegitimate parents of parental authority (cf. § 19), but it cannot be denied that in this case our law only refers to the actual, natural connection between parents and children, without giving this connection full legal sanction. And therefore the essence and completeness of parental authority in this case may depend on actual conditions; for example, from the one who raised the child, who took care of him, with whom he lived constantly (with his mother or with an outside benefactor), with whom he formed a connection of constant patronage and to whom he himself is drawn due to this connection. If the mother herself abandoned the child or did not have any care for him, then it is unfair to allow on her part an unconditional claim to power over him later, when he grew up in the arms and care of an outside benefactor. This was the case in the case of Gristop and Frolova, who was illegitimate. Her mother left her in infancy in the care of the Gristop couple, who raised her and provided her with capital of 10,000 rubles. By bequeathing this money to her, Gristop's wife entrusted her husband with the responsibility of taking care of her education and using interest on the capital for this purpose. Then, after the death of his wife Gristop, Frolov’s mother declared a claim on her daughter and demanded her from her guardian Frolov. The Senate recognized this claim as legal as the right of the mother; but Gosud. Sov. (November 17, 1869) found, according to the circumstances of the case, that the Grystops replaced the most caring parents for the minor, and that to satisfy her mother’s claim would mean violating the will of the child’s benefactress, which expresses concern for the fate of someone else’s child, abandoned by her parents during poverty. In Legal. Vestn. 1873, No. 5, the decision of the Moscow Judicial Chamber was published, which confirms the natural personal right of a mother to an illegitimate child, whom she can find from someone else’s hands. Legitimate children follow the parent's condition. Deprivation of estate rights does not apply to surviving children, i.e. born already or conceived before condemnation (execution of the sentence) IX. 71 Set. exile Ed., 1890, art. 416. The right of status can change with elevation and distinction in service, and children follow the higher status of their father acquired by service, as a general rule, only when they were born in this condition. For exceptions to this rule, see Vol. IX Art. 40–42, 75, approx. See more about reporting birthrights IX. 501, 506, 541, 547, 710, 1015. Institution. Court. Est. 242. In 993 art. Vol. IX indicates the case in which the children of Jews, and legitimate ones, can be counted among the families of their mothers. The question of in whose faith children from mixed marriages should be raised is resolved by civil law. If one of the parents is Orthodox, then children of both sexes must be raised in the Orthodox faith, in which a subscription is taken from the non-Orthodox party before the marriage (Law. Gr. 67. Establishment of the Prest. Ed. 1890, art. 74). This rule has existed in our country since 1721, when marriages with people of other faiths were for the first time, on this condition, allowed by the Holy Synod, but it received the force of a general law no earlier than 1832. Until then, in the Western and Belarusian provinces it was accepted (since 1768) that in mixed marriages, sons should be raised in their father’s faith, and daughters in their mother’s faith; the nobility was given the opportunity to conclude special conditions regarding this in marriage contracts (note to Art. 67). Parents who, contrary to their obligation, would baptize and raise their children according to the rites of a non-Orthodox confession, are sentenced, according to the criminal law (Code 190), to imprisonment, and the children are given to be raised by Orthodox relatives or guardians (see also 188 Art. Code. About children of parents who apostatized from Orthodoxy). This law retains its full force, for it has great importance, both church and state. In church terms, it is important because it protects peace in families, preventing the pressure of the non-Orthodox party in marriage on the Orthodox party with the awareness of the legality of baptizing children into the Orthodox faith. In state terms, it is important because, while protecting the Orthodoxy of future generations, it also protects in them the consciousness of belonging to the Russian family, combined with Orthodoxy. Those who object to this law in the name of freedom forget, firstly, that in this case we are not talking about the conscious freedom of newborn children themselves, but about the freedom of parents to bring their children to one church or another; secondly, that in heterodox confessions there is not only no tolerance regarding Orthodoxy, but there is not even indifference, but there is an undoubted fanaticism of Latinization and Germanization, to which neither the Russian Church nor the Russian state can be indifferent, therefore, leaving in mixed marriages the freedom to baptize infants into one faith or another means leaving children to the freedom of Latin and Lutheran propaganda. This was the result of the secret permission for the Baltic provinces, secret for the Baltic provinces, wrested from the Russian government in 1865 by administrative means not to require subscriptions in mixed marriages established by Article 67. The result was an almost universal conversion to Lutheranism of children born in mixed marriages, and the complete dominance of Lutheran propaganda: especially in peasant families subject to the nobility and pastorate, the number of converts to Lutheranism was believed to be in the tens of thousands. Fortunately, this administrative order lost its force in 1885, and the general law was restored for the Baltic provinces. The abolition of this civil law turns out to be logically impossible as long as the church form of marriage exists in our country, for, according to church law, mixed marriages are allowed and married by the church only with the obligation to raise children in the Orthodox faith. Along with this general law, there is a special rule for Finland: children born from mixed marriages, when one party is Orthodox, between the indigenous inhabitants of the region, must be raised in the faith of the father, without allowing special agreements about this (68). Regarding the upbringing of children from mixed marriages between persons of different heterodox confessions, there is no general rule in civil laws. Only for the annexed provinces of the northwestern and southwestern regions it was decided that such children should be raised - sons in the faith of the father, daughters in the faith of the mother, unless there were special agreements (75). Illegitimate infants and foundlings, in the Baltic provinces, must be baptized in the confession to which the persons who have care for them belong, i.e. either the mother or the foundling’s caregiver—would a father of a different confession have taken the child to himself; in other parts of the empire, infants whose parents are unknown must be baptized in Orthodoxy, unless the mother of an illegitimate, with the unknown father, being a Lutheran, wanted to baptize him into Lutheranism. Est. In. Spanish 698 to Cont. 1890 In marriages of Lutherans with Mohammedans and Jews, a subscription is taken from the non-Christian party that the children must be raised in the Lutheran faith, or, if both parties wish, in the Orthodox faith. Est. In. Spanish 210. If a non-Christian wife is baptized, and her marriage to a non-Christian husband remains valid, then any children born must be raised in the Orthodox faith (Gr. 80). The same rule applies to Jewish marriages, if one of the spouses accepts the Orthodox faith (81). Regarding the parental obligation to bring children to St. baptism is a rule in the Charter of John. Confession, Art. 153, 154, 694, 695: Infants of Lutheran parents must be baptized no later than six weeks after birth. Otherwise, if there are no valid reasons for delay, the consistory appoints a special guardian who is obliged to present the infants to St. fonts Upon receiving St. baptism by Jews is also performed on their young children under 7 years of age; over some girls - at the baptism of one mother, over some boys - at the baptism of one father. IX v. 695. Minor Jews can be affiliated with Christian religions without parental consent, only with the permission of the Minister of Internal Affairs. Est. In. Spanish App. to 76 Art. clause 3. But the rules of 1861 (appendix to Article 70, note of the Constitution of the Prest. Prest. Edition of 1890) stipulated that children of non-Christians in general under the age of 14 can be baptized only with the written consent of their parents or guardians; exceptions are allowed only with the permission of the Synod; but those who have reached the age of 14 can be baptized without asking consent. Parents are given the freedom to raise their children at home or send them to a public institution (Zak. Gr. 173) 32, or, if it is impossible to raise them at home, send them to other private individuals for education (Cass. Resolution 1875, No. 742). To correct this, parents can use home correction measures. If unsuccessful, they can imprison children who are not in public service for persistent disobedience, depraved life and other obvious vices for a period of 2 to 4 months. Such a requirement of the parents is satisfied directly by government authorities without a court verdict (Gr. 165; Code of Laws. 1592; Establishment of the Prest. Prest. Ed. 1890, Art. 122). This rule is apparently not limited to the minority of children (178). On the contrary, no claim is accepted from children against their parents for personal grievances (168). The Charter includes landscaping. state-owned villages (Article 453), it was decided that peasants subject their children under 13 years of age to home correctional punishments, without resorting to the village and volost administration. In 1868 (N 555) Angle. Cass. Dep. explained that behind the abolition of owls. courts, parents must, in the cases specified in Art. 165. Gr. Zak., to file complaints against children, according to the order of jurisdiction, in the courts of general order, and for these courts, according to the conclusion of the Senate, the rule of Art. 166 is not necessary. Citizen Zach. (ed. 1857), since it is only a repetition of Art. 730. 2 parts XV volume, which was canceled with the publication of the Judicial Statutes. So, according to the Senate, the expression of 1592 Art. Code: “without special judicial consideration” is not necessary for new courts, and parents must, therefore, prove the guilt of their children in court. Children must obey their parents, but not against the law and conscience (177, 169). The condemnation of children by parents to monasticism has no force, vol. IX. 347, paragraph 2. Cf. Lay down Order. 1586. Parents have the right to send their children to study for certain periods, but cannot send them out for hire without their consent (2203. Compare special rules for Siberian inhabitants and Samoyeds, vol. II, ed. 1892, Regulations on foreign affairs, art. 38, app.). According to the Charter of Rec. (100, 133, 987–989), parents of good behavior and not schismatics (and even one mother, if there is no father) had the right in some cases to choose which of the sons should become recruits, or to appoint one instead of the other. The adoptive parents did not exercise this right. According to the Charter on Military Service (ed. 1886, Art. 45–48), persons entitled by family status to benefits of the first or second category are deprived of this right if, according to the statement of their father or mother, grandfather or grandmother, they do not serve as support for the family. This rule does not apply, however, to those who have accepted the Christian faith; In this case, the law rightly does not give credence to the parents’ statements. In the case of personal injury inflicted on minor children, the parents bring an action (Gr. 175, 663; Law Court. Civil. 25). Parents seek and are responsible for young children in court when the children do not have special guardians (Law. Court. Civil. 25; Establishment Gr. Court. 19). Parents are also subject to liability for harm and loss from a crime or misdemeanor of minors and children living with them, when it is proven that the minor acted without understanding and that the parents are guilty of negligence. It is up to the court to impose penalties on one of the parents or both together, even if the minor has his own property. Similar liability is established for the actions of young children that are not recognized as a misdemeanor or crime. Zach. Gr. 653, 686. The decision of the Senate in the Kudryavtsev case (Cass. decision 1869, No. 158) canceled the court decision, which imposed a penalty on the father for loss from theft caused by the son, for the fact that the father, contrary to Art. 173. Zach. Citizen did not monitor his son’s behavior and, after his son ran away from home, did not report this to the police. The Senate decided that the above article cannot serve as a basis for liability for the actions of unseparated children. Parental consent for the marriage of children is required unconditionally, even without regard to the children's coming of age. For entering into marriage without the consent of the parents, children, upon the complaint of the parents, are sentenced to imprisonment and are deprived of inheritance in the estate of their parents, if not forgiven by them (Ul. about nak. 1566). The rules on parental consent to marriage for Lutherans are set out in more detail in the Constitution. Foreign Confession (201–203). Only about minors is it said that they cannot marry without the consent of their parents, i.e. father - during the lifetime of both parents; mother, if the father is not present. When children are adults, the parental will has only negative and, moreover, conditional force. Parents can prohibit their son from marrying in a public notice, but not otherwise than for one of the eight reasons specified in the law. Minor children cannot be hired at all without the consent of their parents (Zak. Gr. 2202; Statute of Industry, ed. 1893, art. 472). Parental consent is required when leaving an urban or rural society and transferring to another. IX volume 550, paragraph 3. General gender. cross. 130, paragraph 5. Parents can, in the event of death, appoint guardians for their children, at least the assignment of property is not connected with this (Gr. 227). Parents can be witnesses against children, but children cannot be witnesses against parents (Law. Court. Civil. 192, paragraph 3; Establishment. Court. Gr. 84, paragraph 3, 371, paragraph 3). For disrespect of gifted children to their parents, parents can demand the return of the gift (Zak. Gr. Art. 974), and from the parents, as the Senate interprets on the basis of Art. 166. (according to the 1857 edition) (General Collection. September 1867 in the Stepanovskaya case), no proof of disrespect is required. Personal parental power is terminated only by death or deprivation of the rights of the estate. But in the latter case, the husband or wife, going with the convicted person, can take with them children up to the required age (Constitution of exile ed. 1890, art. 259). This age was determined for male children up to 5 years old, and female children up to 10 years old; this rule remained in force only for Jews: the wives of Jews exiled to Siberia were allowed to take children with them only up to a certain age; As for all other classes of the population, then, according to the rules of 1862 on the order of families following persons subject to exile by court, resettlement or removal by sentences of societies and administrative procedures, and the additional decree of 1869 (P.S.Z. N 46896), children over 14 years of age can follow or not follow their parents, at will. Children under 14 years of age follow their parents at their request, if the innocent spouse followed the guilty one; otherwise, the children remain with the parent who remains; if only the culprit is alive, or the spouses are both guilty, then the children remain in place, under guardianship, unless the governor recognized it would be more beneficial for the children to follow their parents. Infants remain with their mothers. Children brought up by the state in institutions cannot be required by their parents to follow them (Const. Ref. ed. 1890, art. 257–263) 33. When the wife follows her husband into exile, deprived of the rights of his estate, the marriage remains valid. Whether the parental authority of the father remains if the children follow him with the mother, the law is silent about this. If, after the death of the guilty spouse or after the divorce in the place of exile, the innocent spouse wishes to return from the place of exile to Russia, he can take with him, of his own free will, children under 14 years of age. Children taken into exile can return on their own, without parental permission, if they have reached the age of 17 (Ibid., Art. 408). If parental personal power does not end when children reach adulthood, then with adulthood it takes on a different form. The son gains the ability to act independently, and only for some of these actions, as shown above, must seek parental consent. However, the personal power of parents during their lifetime is limited when children come under a different authority, which by its nature does not allow a conflict with the parental one. Thus, the influence of parents on upbringing is limited when children enter public school. With the assignment of children to service, the parent can no longer directly and completely exercise his power over them. He is limited in the right to imprison children: it is assumed that now that his son has a special superior in his service, there is already someone to judge his behavior. It is assumed that the son, receiving a salary for his service, can support himself, regardless of his parents. With the entry of daughters into marriage, the daughter submits to the unlimited power of her husband (Gr. 179). Thus, the power of parents over their son or daughter is limited to the extent that the son or daughter acquires an independent civil position in society: for a daughter, the main, almost only means of acquiring such a position is marriage. a) Parental power in its essence cannot be transferred: it is so inextricably linked with the personality (in which a moral attitude is assumed that serves as the basis of power) that it is impossible for it to be separated by the power of personal will from the person appointed by nature as its holder and transferred to another person. Without a doubt, a parent can, during his lifetime, entrust an outsider with supervision of the upbringing of children and at the same time temporarily and conditionally grant this person a share of his parental power, but such an action is possible because it does not transfer parental power in its entirety, decisively and irrevocably. In the event of his death, a parent cannot appoint another person as the father or mother of his child; the law allows him only to indicate who he chooses as a guardian for his child, but the parent cannot place another person, as the parent himself stands during his lifetime, outside of guardianship, past legal supervision. Therefore, any order of a parent that grants one or another right of parental authority to a third party outside of guardianship will be invalid; for example, when a parent instructed his son not to marry without the consent of his chosen executor, such a condition would not be valid. b) In recent years, in our literature, an opinion has been expressed about the need for rules for the compulsory education of peasant children in schools. But it is impossible not to notice that the obligatory sending of children to school, when applied to the physical, climatic and economic conditions of our peasant life and given the certain poverty of our peasants, would be a measure that would be constraining to the point of violence, and in most cases would remain a dead letter; nevertheless, the application of such a rule in many cases would serve as a pretext for violence and abuse and would only lead to popular irritation. Such constraint can hardly be balanced by the spread of literacy among the people expected from it. The calculation of the benefits of this measure can be called fortune-telling, until schools have yet been established everywhere: of those that have been established, many exist only in name and disputes continue both in literature and in practice on significant issues about what, how and in what way should be taught in public schools. Experience confirms that there is no need to force peasants to send their children to school if the school, in its direction and method of teaching, enjoys their sympathy and corresponds to their common, however, concept of school. People understand school only in connection with the church: they love such a school and value it. Wherever a parochial school has been properly established, where parents see and hear their children reading and singing in the church style, the school cannot accommodate everyone who wants to enroll. There are no rules in our general law regarding compulsory training. Only in Livonia, the regulation on Livland peasants of 1819, in § 516 (P.S.Z. N 27735), introduced the following rule: every child, except those dismissed by the school authorities or who are unable to go to school due to illness, must be kept in school from the age of ten until the pastor recognizes him as sufficiently trained; otherwise, for each missed day, the parents, teachers or owners of the child who did not show up to school are fined, according to the teacher’s report, five kopecks of a copper coin in favor of their volost treasury. Only those parents who, in the pastor’s opinion, can give the necessary training and education to their children at home are exempt from this fine. In 1872, to clarify misunderstandings, it was decided that those children who, by the will of their parents or guardians, are studying in other government-authorized schools, as well as in local Greek Orthodox public schools, also belong to the number of those released (P.S.Z. N 51164). On January 26, 1870, the Minister of Public Education approved the rules for Orthodox rural schools in the Estolatish region. According to paragraph 11 of these rules, children from the age of 10 must certainly be introduced to school by their parents, guardians or owners; if it is violated without a good reason, the perpetrators pay 11/2 kopecks for each day the child fails to attend school (see “Voice” - 1870, No. 103). In any case, these rules do not constitute a law, but they contain an obligation and a penalty for non-compliance. § 23. The attitude of parents to children regarding property in Russian law. – Separateness. – Parental management of children's estate. – The obligation of parents to support their children and the right of parents to demand maintenance from their children. – Children separated and not separated. – Parental authority according to the law of the Baltic provinces Just as in a marriage union, Russian law establishes the separation of property between spouses, so in a union between parents and children, it does not allow the merger or communion of property between both. During the lifetime of both, children do not have the slightest right to the property of their parents, and parents do not have the slightest right to property that separately belongs to the children. In Western legislation, parents are granted a property, civil right to the property of their children until a certain time. We have nothing of the kind, and every right that parents can have over property belonging to their children before they come of age is not a property right, but a governmental right, and belongs to the area of ​​not civil, but public rights. If, during the lifetime of their parents, children receive property by inheritance, gift or other method of acquisition, at a time when their personality is still considered incapable of independent legal actions, then custody of this property belongs primarily to the father or mother (Gr. 180, 226, 229); but the parent stands here on the same basis as outsiders and, just like outsiders, is obliged to report to the guardianship; For approval by the guardian, an appointment from the guardianship is also required (Gr. 260, 294). Parents for embezzlement of children's property are subject to capital punishment, as for theft and fraud (Ul. Art. 1590) 34 . Only for the Chernigov and Poltava provinces Lithuania remains in force. Art. – the right of a father to the unaccountable management of property inherited by his young children after their mother or from strangers, until the sons come of age or before the marriage of their daughters. Although this right is classified as a guardianship, it is in essence a right of use (Zak. Gr. 295). The law confirms the moral obligation of parents to give their minor children food, clothing and maintenance, according to their condition, and upon reaching age to take care of their independent organization (Law. Gr. 172, 174; Establishment of Sod. under page 1890, art. 156); therefore, this responsibility extends to the separation of children. On the other hand, children are the law (Z.G. 194) obliges, even if they are completely separated from their parents, if the latter are in poverty, decrepitude or infirmity, to provide them with food and maintenance until death. The first obligation is not connected with the right of children to sue their parents: this is a natural claim, not a legal one. No interference in this regard by the judiciary can be tolerated (see Coll. Sen. decision vol. I, no. 662). Administrative interference is a different matter; there have been examples of this, but these cases are illegal. Connected with the last duty (of children to parents) is the right of parents to force children to provide maintenance. As a result of a parent’s complaint about the refusal to provide benefits necessary for life, their children, if they have sufficient funds, are subject to arrest for no more than 3 months and are obliged to provide the parents with an adequate allowance (Statute on punishment. Tax. Magistrates’ Court. 143). The above article replaces the former 2165 art. Lay down about the punishment that followed to take custody of the children's estate for non-compliance with the verdict on the amount of benefits made by a conscientious court (Cf. also the Establishment of Village Improvement 491). During the life of their parents, children have no right to their property, and even in the case of a wasteful life of parents, the law does not give children the right to ask for the protection of property. Exceptions to this rule are outside the law and belong to armchair justice. But if the parents kept the property with them until their death, without using the right of alienation, then in the event of death they have the right to freely and unlimitedly dispose of only acquired property in favor of strangers; and the ancestral property, in any case, if not sold by the parents during their lifetime, should belong to the children. Therefore, the right to disinherit children belongs to parents only in acquired property, and in this respect it is unconditional. It cannot be proven that the parents unfairly or mistakenly bypassed the children in the testamentary disposition (querela inofficiosi testamenti): the children can challenge the will only to the extent that it is illegal, and not because it is unreasonable. Regarding the deprivation of children of inheritance in a family estate, only one case is possible, and that is not a direct, but an indirect action of parental authority. If a son or daughter entered into marriage without the consent or against the decisive prohibition of the parents, and a complaint is filed against this by the parents, then the perpetrators, by the way, are deprived of the right to inherit in the estate of the parent whom they offended by their disobedience. However, this parent is given the opportunity to subsequently restore this right at his own discretion (Code of Punishment 1566) 35. Controversial cases between children and their parents regarding property are resolved by a special conciliatory procedure in conscientious courts, where they still exist in the old judicial system (Law. Court. Gr. 744, 754). In the new judicial system there are no longer conscientious courts, and cases between children and their parents are carried out in a general manner. When a son comes of age or a daughter is ready for marriage, it depends on the will of the parents - and only on their will - to assign to one or the other during his lifetime a part of the ancestral property that corresponds to the law or a part of the acquired property commensurate with the wishes of the parent. This action in relation to unmarried sons and daughters is called allotment; in relation to daughters who are married or getting married, it is called dowry. By performing this action, the son or daughter is separated in property from the parents, for they are exercising their possible rights to the inheritance that was to open in the estate of the parents. This fulfillment can be either complete and perfect, when the children, during the life of their parents, already receive everything in full that they should have received at the moment of the death of their parents, and also when the children, having received what was allocated, agreed to consider themselves completely satisfied and not demand anything more when opening an inheritance in the estate of their parents from other children who have not yet been allocated; or it can be incomplete and incomplete, when during the allocation the children did not receive their entire inheritance share (Gr. 994–998, 1320, 1001–1004). With separation, the property becomes the full property of the one to whom it was allocated and goes to his free disposal (Gr. 190, 191). Unseparated children have no right to the parental estate. Therefore, there is no solidarity in property between such a son and his parents. Children can acquire property separately from their parents, in which case the property becomes the property of the children and is at their free disposal; parents do not have any right to this property, and they can manage and dispose of it only with the consent and authority of the children, and for unauthorized disposal they are responsible to the children as to outsiders (Gr. 192, 193; Ust. Court. Trade. Ed. 1893, art. 557). But the unseparated son is responsible for his debts and obligations only with his property: he cannot enter into obligations on the account of his father’s estate. During their lifetime, parents are responsible with their property only for such debts of their children that were made with their consent or authority, certified by a signature on a deed or a special power of attorney: in this case, they are responsible for these debts as if they were their own (Gr. 183–188) 36 . The own estate of unseparated children is not responsible for the debts of the parents. But in the event of the insolvency of the parents of a trading rank, the law specifies what exactly should be considered the children's own estate and is not subject to conversion into the general debt estate of the parental estate. Anything that came to children by inheritance, gift or other record from a parent, or acquired with capital passed on from a parent (Ust. Court. Trade. Ed. 1893, Art. 556) is not included in one’s own estate. Unseparated daughters, if they do not trade themselves, cannot issue or transfer bills without the permission of their parents. Est. Vekseln. Ed. 1893, art. 6. On unseparated sons, see also: vol. IX, art. 110; vol. II ed. 1892, Position. about earth uchr. Art. 19. On the separation of property for parents with separated and unseparated children, see decision. Cass. Dep. Senate 1869, N 486; 1870, N 308. Parental authority, according to the law of the Baltic provinces, belongs jointly to both parents, but primarily to the father; if the will of the father harms the children, then, at the request of the mother, the court can entrust her with this power and the upbringing of the children. In case of divorce, the children are entrusted to the innocent spouse, and the costs of education fall on the father, if he is able. The choice of title for children depends on the parents, but children upon reaching 17 years of age can apply for sire. the court to change this choice. Parental authority continues until death, but can be terminated by law, in the form of punishment for certain crimes and for abuse of power, at the will and application of the parents as a result of adoption, the marriage of a daughter, or the separation of an adult son to his own household. It is limited to the coming of age of children and the entry of parents into a new marriage. In children's separate property, parents have guardianship rights combined with the right of use; the latter does not stop even with the removal of parents from guardianship. The right of use does not extend only to children’s property earned, well-earned, or donated to children from outside, precisely with the elimination of parental use. In the event of a dispute with parents about separate property, children have the right to demand from parents no more than what the parents are able to fulfill (Ostz. Gr. Law. 197–240). § 24. The special importance of the whole family in the trading merchant class and in the former tax-paying classes. – Financial and economic significance of family division. – The special importance of the family in the performance of recruiting duties. – Hindu family community The division of the family and the separation of parents from children are of particular importance in the merchant class and in the former tax-paying classes. The merchant class is not a successive class, but an occupation, a trade; belonging to the merchant class depends not only on birth, but on belonging to a family that enjoys trade rights; and this right depends on the payment of a fee for a trade certificate, so that with the cessation of the fee, membership in the trade title and right ceases. The certificate is usually taken from one person, who is considered the head of the family; Together with him, persons belonging to the family, as long as it is not divided, enjoy his merchant right, but not to all persons. With the father and mother, their sons, unmarried daughters legally adopted and grandchildren from the son (if he does not conduct separate trade) can be included in one certificate. Unmarried sisters may be listed with the brother as the head of the family. The stepfather may have stepsons until adulthood and stepdaughters until marriage; with the stepmother - the children of her deceased husband from his first marriage (Vol. V, ed. 1893, Statute on Direct Taxes, Art. 288, 293–300). All those included in the certificate do not have independent trading rights and credit, but trade and are credited only by proxy from the head of the family (ibid., 294). Upon reaching the age of majority, a son or daughter can take a certificate in his own name and then trade on his own credit and responsibility (ibid., art. 295. Compare the differences in previous decrees: XI volume. Ordinance T. ed. 1857, art. 35–53) from capital separately acquired. The integrity and indivisibility of the family, according to our laws, is of great importance in the former tax-paying classes, regarding the correct payment of taxes and the administration of duties; The internal distribution of taxes is done by family, with the householder serving as the main responsible person. But his solidarity with members of the family who are not part of the division is expressed in the fact that the members, being responsible for one another, can be turned into work for non-payment of taxes and non-fulfillment of duties (General Pol., Art. 168–176. Regulations on redemption 127, 133. Local. Great Pol. 213, 261 and other local provisions). Persons who can transfer to other classes without the dismissal and adoption consent of society can only transfer as whole families, without fragmentation (IX. 525). When transferring one of the family members to another society, certification is required that there are no minors in the family who require food. T. IX, 550, 551. – General. positive about peasants, art. 130. In general, about family divisions among peasants, see General. cross. positive 51, paragraph 5, note, adj. according to Cont. 1890, Const. Colon. 173. The family was of particular importance as a unit for performing conscription duties. The recruitment queue was arranged according to families, the composition of which was calculated by the number of workers (long-worker, low-worker, 4-, 7-, 10-worker, two-worker - double; one-worker - single); and among the workers there were differences between single and married, older and younger. The larger the family, the closer it was considered to be to the queue, and the smaller, the farther from it; As a result, there was a desire for division in families; therefore, freedom of partition was limited. For the division it was necessary to seek permission from the estate council, the Duma or the Magistrate and from the Village Assembly. The unauthorized section did not matter. In addition, consideration was given to uniting families into one, through marriage and taking sons-in-law into the house, and living together in one house. In the Recruiting Charter, regarding the administration of military service, the relations of half-blooded, uterine, separated sons and stepchildren, and adopted children received special legal significance, and parents in some cases had special power to choose from among their sons who should be recruited (100, 133, 987–989). Special legal significance was assigned to the family, “whose members, living together or separately, but trading or otherwise earning a living, have an undivided household, pay taxes for each other, perform duties, and with a common effort provide means of maintenance to all persons belonging to the family” (union of reciprocity, as stated in the law, art. 814, 860). A hunter, when hired as a recruit, pledged to provide for his family if it had nothing to support itself. With the publication of a new charter on military service, all these rules should be considered abolished. They are replaced by the benefits provided by the new charter (Vol. IV, Ust. Voin. Pov., ed. 1886, Art. 45–511), according to marital status, in accordance with the composition of the family, the number of able-bodied workers in it and the need for care in the existing family. On the appointment of another owner to a peasant family in the event of arrears, see Regulations. on redemption 127, clause 3. 133, clause 4. Local provisions, for example, Velikoros. 264 paragraph 4, etc. In particular, about the financial significance of the house, household and family, see Special. adj., VII, art. 3, note, adj. Art. 1, 12 to Cont. 1890 Const. Cossack. Sat down. 323 and 363. Foreigners assign special significance (political and financial) to clan and family. T. II, ed. 1892, Position. about foreigners, Art. 143, 253, 330. Set. oh right. tax., 576. Institution. Cossack. 397. T. IX, art. 887–897, 901, in Maafov. Institution Cossack. 911. 809. On the transfer from one clan to another among foreigners, see Ord. oh right. tax. The house of some foreigners is assigned a special financial meaning of smoke 14. Const. oh right. tax., 2, 506 and Pol. about Tiflis. peasants 1864, paragraph 6, P.S.Z. N 48357. In 75 Art. section 2 Set Kr. Ed. 1893, mention is made of capital contributed to the state debt book and constituting the total ownership of an entire family. Particular importance is attached to the family in relation to the right to pensions from the emeritus treasury of the military department. Family refers to the participant's wife and children and, in some cases, the mother. The family’s right to a pension is opened by death, deprivation of rights to the estate, unknown absence (P.S.Z. 1871, N 49647, art. 46–48). The custom of living in non-divided, large families, corresponding to a patriarchal way of life, does not correspond to the conditions of a more complex and developed social economy. In the family circle, this custom maintains order and good morals only until then, while there are still few points of contact between the family and its individual members, in economic and moral interests, with individual members of the surrounding society; but the more this contact intensifies, the more clearly the disintegration of the principle of inseparability is revealed in the family environment. In a house consisting of several families, one person, the eldest, is considered master and lord; in his person it is difficult to distinguish the individual rights and even the individual property of each of the members of the house: monetary earnings flock to him and the satisfaction of the economic needs of each individual member depends on his disposal. Such a state cannot be durable, because it contradicts the natural need of each individual person, which sooner or later manifests itself, to isolate itself into its own circle of moral and legal rights and obligations. So, it is not surprising that the disintegration of the peasant undivided family that is taking place in our time, the painful phenomena accompanying it are not surprising, and it is not surprising that the desire for family divisions has intensified and the disintegration of the family has become more significant with the liberation of the peasants. The indivisibility of the family is now difficult to reconcile with the responsibility of each individual for his legal actions. For example, it is known that in peasant life, individual family members often leave for work or, working on the sidelines, enter into obligations and contracts, but the proceeds, according to custom, go to the owner of the house. Meanwhile, for failure to fulfill contracts and obligations in which they participated in their own person and in their own name, it is difficult to pursue them in the middle of the house and under the cover of the head of the family, who, in existing custom, has reason and grounds to appropriate to himself all movable property and all capital that could be recognized as belonging to an individual member, and has the right to protect himself from liability for his actions by force of Art. 184 and 185. Zach. Citizen about the non-responsibility of parents for the debt of an unseparated son. A remarkable similarity with the Russian customary structure of the family community is a similar structure among the Hindus; only there it had already acquired the form of a legal institution, while in our country the custom remains outside the legal consciousness in positive law. Among Hindus, after the death of the father or the head of the family, family communication between brothers usually continues, and the head of the family community is considered to be the eldest brother or one of the brothers by common choice or consent. This state is also recognized by positive law. Its legal properties are as follows: between family members there is communication of property that essentially belongs to the entire family and constitutes the common family capital; everything that is acquired by each member of the community through and at the expense of this family property is considered the property of the whole family, in which all male members have an equal share. This communication does not, however, prevent each of the members from acquiring and holding separate property in their own possession, as long as it is acquired not from funds or at the expense of the common family fund, but through a separate business or acquisition, such as military or civil service, outside work, separate bargaining or a gift from outside. This state of family communication continues continuously between the descendants of one common ancestor until a division or allotment follows, either by general, express consent of the members, or by the commission of a legal action incompatible with family communication. Such signs of separation are recognized as: 1) separate residence of family members for a long time; 2) separate performance of family religious rites; 3) execution of acts and transactions by virtue of which family members enter into a mutual relationship between debtor and creditor; 4) execution of mutual acts of gift between family members. See Colebrooke. The Law of Inheritance. His: A dihest of Hindu Law on contracts and successions. Dalloz Jurisprudence generale. 1866. I. 417. Note: About the family community among the Slavs and other peoples. The family community, or zadruga, is a feature of the Slavic tribe and has survived to this day among the southern Danube Slavs, among the Slovaks and Croats, Serbs on the Austrian military border, in Bosnia, Bulgaria, Dalmatia, Herzegovina and Montenegro; it is maintained, for the most part, by custom, but in some areas it has been adopted into positive law and has legal significance. Due to ancestral custom, land ownership is confined to the family, i.e. to a collection of persons descended from the same ancestor, living together and cultivating the land in common as common property. Among the Slavs, such a community is called a squad, friendship or zadru. It is headed by an elder or Gospodar, elected by family members. He governs the entire community, manages the work from the general council, buys and sells at the expense of the community. His wife manages the general household, in which other housewives sometimes take turns replacing her. The composition of the community sometimes reaches up to 50 people, and several generations unite in it at the same time: young people, upon marriage, remain to live in the same house or in a new extension; It happens that sons-in-law also join the community of their wives. With a common economy and general productivity, each couple receives, however, for a time and a special plot for themselves, on which they cultivate and produce for themselves exclusively flax and wool for clothing: in general, everyone does craft work at their own expense; but rural field farming with livestock and equipment is common to everyone and is carried out together. The land belonging to one family is not mixed with the land of other families in the same village; but in case of need, all families unite and do the work with common help. In this form, the family community represents a separate legal personality and enjoys the right of action and defense in court. With the death of one of the members, there is no inheritance in real estate, and the children after the deceased have not an inheritance, but only a personal right to his share in the common land fund, like members and employees of the same family, but whoever is evicted from it loses all right to participate in the family fund. When a girl gets married, she is provided with a dowry, but she does not remove from the family any rights to participate in the family property. Is it possible that in the event of the death of all family members except one, the family property becomes his personal property? The Austrian law on May 7, 1850 on the civil structure of the military border adopted and confirmed the establishment of a family community at Granichar, moreover, imposing military service on each family member who, according to custom, has the right to participate in the use of the family land plot. But this lasted only until 1870. After that, in 1874 and 1876, a number of separate decrees, under pressure from the Hungarian government, allowed free divisions of zadrugs and even prohibited the re-establishment of zadrugs. The fragmentation of property into equal shares between sons and daughters began, and as a result, the amazing ruin of farms and the impoverishment of peasants. Finally, in 1882, the Hungarian government, by a decisive decree, established a 2-year period during which the still surviving zadrugi were obliged to separate. This completed the final triumph of formal artificial law over folk custom. In Serbia, relations arising from family land ownership also entered into legislation, but with the addition of provisions that contradict customary law and do not agree with the essence of communal ownership, for example. the right of each member of a family undivided community to pledge his share for his personal obligation. Unfortunately, in Serbia, like other Balkan Slavs, following the liberation from the Turkish yoke, the principles and forms of a Western system alien to the people’s life invaded the life and mood of the ruling classes. Since 1835 - with the time of Milos, carried away by the tinsel of the French warehouse, new laws appeared, modeled on the French code, and the beginning of fragmentation and management was introduced. And in 1844, through the hands of Austrian lawyers and on the model of the Austrian code, a code was published that is still in force today, completing the decomposition of the zadruga and the disintegration of large family communities. Such family communal ownership still serves as a distinctive feature of legal life among the southern Slavs and, in connection with the current economic state of those areas, provides such amenities that societies that have achieved the highest economic development cannot boast of. In that region, everyone, as the Croats say, is a homeowner and a property owner: there are no such extremes of land ownership as are represented, on the one hand, by England, where all land ownership is concentrated in a small number of huge estates; on the other, France, where it was all divided into many plots of separate ownership, so small that even intense personal labor on them becomes unproductive and fruitless. On the contrary, family-community farming, produced by an entire family at a common expense, combines the benefits of large-scale farming with the conveniences of small-scale farming and contributes to the equal distribution of natural products and profits among all producers, providing everyone with the first needs of life. There is no doubt, however, that this form of land ownership and economy cannot be maintained with the strong development of industry and with the accumulation of capital with its free circulation on the market: such a fate already befalls the family-communal structure of the Hungarian Slavs. The latest research has proven that similar family-agricultural communities were a common everyday phenomenon in the West, namely in France and Italy, but gave way everywhere to personal land ownership. In this sense, Caesar mentions family unions in ancient Gaul (gentes, cognationes hominum, qui uno coierunt), with the periodic distribution of lands among the members. Among the Celtic tribe in Ireland, the main social union was the family community (called Sept), connected by descent from a common ancestor: here, just as in the Brahmin-Indian community, everything acquired by one of the members becomes common property, except for what is acquired on the side by special art; but when the acquirer is trained in art through family labor, money, or upbringing, the acquisition goes into the family. The inheritance itself, in its original form in such communities, consisted in the distribution of a plot belonging to the deceased, not among his children, but among other members of the community (Jrish Gavelkind). In France, according to medieval monuments, traces of a similar institution are visible - a family community (coterie, fraternitas), living together in one house and one household; These traces have been preserved in places in France to this day. See Laveleye about this. Les communautés de famille, in his book: La proprieté et ses formes primitives. Paris. 1874. Baudrillard. La famille de France, art. at Revue de 2 Mondes. 1878. 15 Avril. Maine. Lectures on the early History of Institutions. London. 1875. His: Village communilies in the East and West. London. 1871. About the friend of Milicevic’s article in the magazine “Conversation”. 1858. III. 1859.VI. The new Civil Code for Montenegro contains detailed regulations (see 686–708) on the family community. Among the Southern Slavs, the rural family differs from the urban one. The latter is a family in our sense, a simple composition of father, mother, children, with separate property. The first is a complex composition, with communication of assets. But in villages there are not only large communities or zadrugi, but also small communities similar to city ones, known as inokosna. Zadruga, being subject to disintegration under the influence of the new Serbian-Austrian laws, is usually divided into small families and households, i.e. for foreigners. Bogisic, in his code, was the first to try to define the legal significance of both families. He assigns a legal personality to both of them, only the zadruga seems to be a union of many workers, therefore rich, while the inokosna consists of a small number of workers, therefore, is essentially poor. In 686 Art. The code directly states: the rural family community is an independent subject of all household belongings and total property. And property is considered to be everything that originally belonged to the house and that was acquired by the labor of family members. Only as an exception, they are assigned some separate property (osobina), namely, acquired without difficulty, as a gift, by will, women's household belongings, etc., or that with the consent of the family is assigned to the individual. A wife can dispose of her person only with the consent of her husband. Allocation from common property, at the request of individual members, is not allowed. The elder is considered the legal representative of the family. His orders and actions regarding property are obligatory for the family (unless they turned out to be dishonest to the detriment of it). Each member can be personally responsible for himself, and in this case the family is not responsible for him if there was no participation. However, in the event of his insolvency, the responsibility may fall to his lot, whose value is allocated on this occasion, if the family does not accept the debt. The family can, at the request of the members, split up: in this case, a general liquidation of debts and obligations is carried out. But the departure of members from the family in itself does not serve as a reason for its disintegration, at least one member remains in it, whether a man or a woman (as long as it is not a childless widow of someone else’s family); the family continues to retain the value of a legal entity until it is augmented by other members. An interesting and unique institution of its kind exists in Portuguese legislation (Civil Code, Art. 1281–1297). This is the establishment of a family union formed between brothers or between parents and adult children and with the goal of common industrial development among all members of a common land fund, on their own or on someone else’s land. Such a union is formed either by a formal agreement on arbitrary conditions, or, of course, by the deed itself, when the partners have lived for more than a year in continuous communication of household life and economy, income and expenses, losses and profits. In the latter case, the relations of the accomplices are determined by law. Communication extends to all use of common property and to all activities in it, to all household life, with housing, food, clothing, and treatment in case of illness. The common account includes the debts of each partner and expenses made and incurred for the common benefit. Everyone, however, is free to acquire on the side - by purchase - property that is special to him, but with the difference that everything movable is considered his property, only insofar as he did not use it for a common cause, and real estate is considered, in any case, his property. The disintegration of the union is connected with the division, the conditions of which are defined in detail in the law: the share of each is determined unevenly, but to the extent that each through his labor contributed to the increase of the total profit. Women's and children's shares are also calculated as they participate in the overall work. § 25. Family nickname and surname. – Change of surname The family's affiliation is a surname or nickname 37, which in our society, organized by estates, is the more significant, firm and the more has legal significance in the estate, the more definitive in it is the meaning of class and family honor, passing from ancestors to descendants. Therefore, the family nickname has the greatest significance in the noble class. Here the family nickname, constituting the most important distinguishing feature of the individual, at the same time acquires national significance. In this sense, it is impossible for a nobleman to arbitrarily change his surname, abandon his family name and choose another, rootless or alien name. There are, however, cases in which a change of surname may be desirable for the sake of respectful family, personal or state interests: sometimes it is desirable to change a nickname that is obscene or for some reason reprehensible and unprofitable. Such a desire is satisfied with the permission of the subject authority, namely the Department of Heraldry of Rights. The Senate, whose department includes cases of changing the surname of nobles and honorary citizens (Article 21, vol. I, ed. 1892, Constitutional Sen.). Requests of this kind are submitted either to the Highest Name through the Office of Petitions, or to the authorities, or directly to the Heraldry Department; in any case, permission depends on the Senate, which usually requires in such cases, applying to Art. 324, adj., art. 6 IX Vol., written consent of the applicant’s parents to change the surname. Determinations of the Senate are published in the Senate Gazette. In other cases, it is allowed between nobles to transfer a surname, coat of arms or title from one member of the clan to another member, when the first does not have direct descendants of namesakes who could retain the surname. A transfer of this kind is permitted through the Senate and the State Council with the Highest permission (see Art. 57 and appendix to Art. 324, Art. 13, Vol. IX). The family nickname does not have such a defining meaning among other classes, except nobles and honorary citizens. For the merchant class, a velvet book was established (vol. IX, art. 1143–1146) in order to “perpetuate in posterity the memory of the families of the original merchants,” but only some names are written into this book, by special petition and honor, and remain in it “until the knee is darkened” among the primary merchants, after which it is necessary to again petition for a note in the second part of the book of “new revived branches." So, this note has only a temporary, impermanent meaning; and the writing of the book itself is not constant, but is repeated no more than every two or three years. The less constancy the family name has and the less it is imbued with legal consciousness in the bourgeois and peasant classes. Among the burghers or small traders and industrialists, the name is often changed for random and temporary reasons, arbitrarily; but when it acquires the significance of a commercial or industrial firm, then an arbitrary change may violate the rights and benefits of other firms, and therefore in these cases the change of name is made with the permission of the Crafts. Boards. Hence, disputes arise about the right to bear a well-known name serving as a firm of craft or trade. (See a similar case about the right of the tradesman of Lidsky to be called by the surname Zholudsky, granted by the Remes. Administration to another person. In 1 General. Collection. Sep. November 9, 1873) To prevent malicious name changes observed among Jews, the law (IX. 954) prohibits Jews from changing their surname, even in connection with St. baptism. As for the Orthodox clergy, the only form of status acts that exists for them, the lists of spiritual consistory (IX vol., 1130) have exclusively administrative, only partly class significance, and have no clan significance at all. Everyone knows the custom that exists among the clergy to choose a family name when leaving the seminary. Among the peasants in the northern provinces, house signs, spots or brands are in common use, constituting a tool for signifying not only property, but also origin, therefore, receiving partly the meaning of a family name, since these signs are passed on hereditarily, preserving, with modifications, their basic type. Sons, as long as they do not live in common with the householder, use his sign; but with partition, the one who separates takes on a special sign, which is called to be stained, to be crucified, to be branded. In this case, the main house sign is retained, but some additions are made to it to distinguish it. Whoever remains with his father, on the root, and takes property from him, he keeps the house sign without any changes. Adoptive sons-in-law adhere to their father-in-law's mark. Those taken into the house of widows or adopted children take the sign of the first husband of the widow or adoptive parent. This is called: I came according to the mark. Women use the brands of their fathers or husbands. On this subject, see the interesting article by Mr. Efimenko: Legal signs in the Journal. Min. Nar. Prosv., 1874. There are also interesting thoughts from the author about the meaning of family marks or seals in Russian folk life, in the sense of the family coat of arms, and about the change in signs with the development of social life among tribes, from clan to community, then to house, and finally to personal. Examining the fate of our signs, the author notes, among other things, that they went through various phases of their development in our country in connection with changes in the nature of land ownership, therefore, under the influence of the economic principle, and therefore they did not preserve that blood or clan element that is so clearly shown in the coats of arms of noble Polish families. In our country, the coats of arms or family signs of the upper classes did not remain stable, while the family coats of arms of the Polish nobles are constant and unchanging, and from ancient times served as representative signs - not only of the courtyard and home (economy), as with us, but of a whole series of surnames descending from the same root or assigned to the same family. Appendix to the third chapter. On the meaning of marital and family relations in other parts of Russian legislation Marital and family relations in many cases are taken into account by our law, for the purpose of benefits or charity from the Government. These are the rulings: About pensions and lump sums. benefits for wives and families of officials, see Charter on pensions. Art. 200, 201, 205, 216 et seq. 250–260, 261 and adj. 277–288, 297–307, 312 et seq. 328 and others. T. II, ed. 1892, General. Institution Lip., Art. 20, note, adj.: Art. 45 and other legal provisions. On the right of children of officials in the Cossack troops to their father's shares. Est. Kaz. Sat down. 118 et seq., adj. to Art. 53 art. according to Cont. 1863 P.S.Z. N 50276, art. 65. On benefits to the wives and families of exiles following convicts into exile. Est. exile ed. 1890, art. 78, 173, 196, 230, 408, 423. On benefits for wives and families of defendants in custody, II vol. ed. 1892, General. Institution Lip., Art. 683 clause 9. Const. Earth Pov. 262. Const. sod. under page ed. 1890, art. 207, adj., art. 2–6. About benefits for widows and families to leave a remote region where the husband or father was in the service, III Vol. Pol. about advantage citizen remote services local, ed. 1890, Art. 7, 38. About soldiers' benefits. wives to go to their husbands. Est. Earth Pov. 490–492. 1870 November 16 (48919). About funds for raising children for officials and gentlemen. I vol. ed. 1892, Uchr. Ord. 170. III volume. Const. Service Law, Art. 225, note, adj. and Paul. about advantage citizen remote services local, ed. 1890, Horn. Est. ed. 1893, art. 25. Set. Post. according to Cont. 1886, art. 121, 122. 1869 Jan. 4 (46623) and Feb. 9 (46729). About using the apartment. Est. Zemsk. Povin. 258, 259–261, 293, 375. About charity for the families of military personnel. Est. warrior. submit ed. 1886, art. 34 and approx. 2 to Cont. 1890, art. 35, 306 on Cont. 1890 On the right of families to stay in the state apartment of the deceased for 6 weeks. III volume. Const. Service Right 554, 555. Const. Earth Pov. approx. 3 to art. 259. IX vol. adj. in Art. 411, art. 63, 64. In civil service - members of the pris. Relatives and in-laws of the chairman, etc. are not determined. III volume. Const. Sl. Right 166. About this before. see vol. IX, art. 600. Kinship, property, guardianship, adoption are considered reasons 1) for the challenge of a judge and official. Pos. about the cross. uchr. 34. Zak. Court. Citizen 125, 129, 681. Institution. Court. Est. 148, 324, 401. Const. Corner. Court. 85, 273, 600, 608. Est. Gr. Court. 195, 667, 1012. Notary. floor. 75, 2) to the elimination of witnesses: Paul. about the cross. uchr. 61. Zak. Court. Citizen 192. Const. Corner. Court. 94, 96, 458, 705, 707, 708. Est. Gr. Court. 83, 84, 86, 123, 370, 371, 373, 417, 520, 523. Notary. floor. 87. Maternal responsibilities are recognized as a reason to defer the execution of criminal sentences. Est. Corner. Court. 959, 970; personal detention of a careless insolvent Const. Gr. Court. Art. 1400 approx., adj. III, Art. 32, 33. Family relationships may in some cases be a reason for terminating a personal employment contract. Floor. about the cross. establishment Adj. II to 31st century; an excuse for missing out on fate. actions. Zach. Court. Gr. 104. Settlement Corner. Court. 388, 642, 650; For some crimes committed between relatives, prosecution begins only on the basis of a complaint from the offended party. Est. nak. Art. 18, 19. Wives and family members of employees in the Ministry of Earth. and State Estates for the mining sector and for the management of state-owned lands cannot engage in mining everywhere, and employees supervising the private mining industry - in their districts; wives and family members employees in Siberia cannot engage in ore mining there; For this reason, they cannot be the confidants of other persons. III volume. Const. Service Right 529, clause 10, vol. VII, Const. Horn. ed. 1893, art. 265–268, 436; Zach. Court. Citizen, Art. 49 clause 4. For a similar prohibition on other subjects, see Constitution. Sl. Right 529, paragraphs 14, 15. Certain types of contracts, prohibited or limited for some officials, are prohibited or limited for their wives. Zach. Gr. 2048. Gender Kaz. Other ed. 1887, Art. 43, approx. 2. I will accept my wife’s permission from the burden. as an excuse for service. Est. Earth Pov. 628. Benefits for sending military personnel. duties according to family composition. Est. ed. 1886, 45–51. In the case of a crime that resulted in the deprivation of life, the law obliges the perpetrator to ensure the maintenance of the murdered person, when the latter supported her with his labors, namely to the parents after their death, the widow until a new marriage, and the children until adulthood and before marriage. Zach. Gr. 657, 658. Similar liability is imposed on the perpetrator for damage to health or injury (660, 661), for unlawful deprivation of liberty (665) and for the decision with negligence or malicious intent to condemn an ​​innocent person to punishment (678). For various representation benefits provided to relatives based on respect for kinship, see Vol. II, ed. 1892, Paul. Zemsk. Institution, art. 18, 19. T. IX, art. 111, 125. Institution. Court. Est. 19, 28. On benefits for recovery from the debtor’s property, in consideration of his family, Zak. Court. Citizen 527; Floor. Collection Citizen, Art. 120, note, 383, 384, 394, 419; Est. Gr. Court. 973, 976, 1086–1089, 1400, note, App. III, Art. 32; on the benefits provided to families in the tax-paying classes when collecting arrears from items necessary for life, see Vol. II, ed. 1892, Paul. Foreigner, Art. 300; Zach. Court. Citizen, Art. 811. Petitions regarding the affairs of their family are also permitted to persons who do not have the right to attend the cases. IX. 460. Est. Gr. Court. 246, paragraph 8. Chapter Four. Adoption and the relationships that arise from it § 26. The idea of adoption and its Roman institution. – Its meaning and forms in the latest legislation. – The attitude of the teacher to the pupil in France. – Joining children in Germany In addition to the natural, it is possible to artificially establish a parental or similar parental relationship - through adoption. This institution in the Roman world for the first time took on a legal form, but its legal form is now completely different from the Roman one. There the family had a strictly legal character (patria potestas - homines sui juris - alieno juri subejecti), which it does not have in our time, so that in the strict sense only the Roman idea of ​​​​establishing relations through an agreement or voluntary consent came to us. In Rome, adoption was an important national institution; it was fully consistent with the religious and political structure of the Roman family. The religious principle that lay at the foundation of the ancient family required the indispensable maintenance of the home shrine and continuous service to it. For this purpose, each head of the family had to leave behind a successor. If nature denied him a blood son, religious custom demanded that he take someone else’s son into his home, introducing him to his home with a solemn rite of passage (in sacra transitio). In this case, adoption corresponded to emancipation (emancipatio, sacrorum detestatio), i.e. the release of this alien son from his former home, from his former power and his former shrine. Subsequently, adoption served in Rome as a means to maintain noble patrician families, as well as to replenish and renew the patriciate itself from the lower class. In this sense, in a later era, adoption acquired the quality of an aristocratic institution. In Ancient Greece (Athens, Sparta, Sicilian Colonies) there was an original institution of Enikler or Patrokiy, consisting of adoptions. This is an institution of the time when a daughter and a woman in general were excluded from inheritance and could not keep a home on her own. Some sons were considered capable of this: their replacement, in their absence, was adoption. But the daughter’s son, having nevertheless a close blood connection with the deceased, could be more capable than a stranger of achieving the goal of adoption. So, in case of need, the law obliged such a daughter to marry a close relative of her father, and the son who would come from this marriage entered, through his mother, into succession after her deceased father. This right was so strict that the neighbor, as directed by the law, in the necessary case, if he himself turned out to be married, was obliged to divorce his wife and marry Eniklera. In its current form, adoption does not establish an integral, complete relationship between the adoptive parent and the adopted person, which arises as a result of natural birth. It embraces only some aspects of the parental relationship, leaving others completely untouched; it does not break the connection of the adopted person with his blood relatives, it does not establish a kinship relationship between the adopted person and the blood relatives of the adoptive parent. A relationship similar to that of kinship arises only between the adoptive parent and the adopted person and his descendants. Adoption does not completely give those property rights that are associated with natural blood relations, does not give the adoptive parent all those rights that belong to the blood parent, and does not serve as an obstacle to marriage to the extent that was provided by Roman and Greco-Roman laws. So, in our time, adoption serves only as a formal and incomplete replacement for natural descent by birth. This is now the legal civil property of adoption. Its features change somewhat, and the relations arising from it are sometimes defined more sharply due to political considerations, and this side of its adoption concerns public law. This is adoption in the upper classes for the preservation and maintenance of the family. This institution was adopted especially in German law. In France, adoption, as a legal institution, was unknown until the Republic (1792) and until the Napoleonic Code, in which it first appeared as an organized institution. In England, legal forms of adoption are completely unknown. In Roman law, two forms of adoption were known; one with the transfer of parental rights, the other without transfer, when a person free from this power came under parental authority. The first form (in adoptionem datio) was free at the beginning; but subsequently the law constrained her, allowing only one of the ascendant relatives of the adopted person to be an adoptive parent; for all other relatives and for strangers, only incomplete (minus plena) adoption was possible, without the transfer of full parental authority. In both cases, permission from public authorities was required. This form of adoption has now lost its special meaning, having merged with another form - arrogatio (Adoption. Wahlkindschaft). Adoption requires certain special conditions to be met. Firstly, the adoptive parent must be a person who is childless and capable of marriage (this is why the priests of the Catholic Church are not capable of adoption). A childless wife is also considered capable of adoption, with the consent of her husband, and French law (343, 344) binds the husband in such a case with the consent of the wife. Secondly, the adoptive parent must be at least 50 years old (Prussian, Austrian, French). Thirdly, he must be older than the person being adopted by the required number of years (Austrian 18, French 15; Prussian does not have this condition). Fourthly, French law, in order to protect the internal strength of the institution from abuse, requires that adoption be preceded by a state that serves as a sign of special personal love and mutual care between the parties, namely, that the adopted person must be under the guardianship (tutéle officieuse) of the adoptive parent for at least 6 years; this formality, as well as the conditions of age, are not required when the adoptive parent owes the adoptee the life of a person in danger (Code Civ. 345. Adopt. remunérative ou privilégiée). But Italian law made adoption easier without adopting the French rule on adoption remunérative and prior guardianship. Fifthly, there must be the consent of the adoptee’s parents or guardians. Sixthly, adoption is carried out with the permission of government authorities (in France - a justice of the peace, then a court of the 1st degree), after a preliminary consideration of the circumstances. Italian law only requires the approval of the judiciary. Regardless of adoption, the law also concerns the relationship of the teacher to the pupil or adopted child (Pflegekind, pupille), although in these relationships a connection is assumed to be more moral than legal. French law alone has created a special institution for these relations called tutéle officieuse. This relationship arises between a minor (under 15 years old) and an adult (not younger than 50 years old), who has undertaken to take care of the minor’s person and property free of charge, educate him and prepare him for an independent life (Code Civ. 361–370). And for this, the law sets the conditions that the teacher does not have children and grandchildren, that on both sides there is the consent of the other spouse of the teacher or teacher, the consent of the pupil’s parents; requires the permission of the magistrate, etc. The state of tutéle officieuse must, as a general rule, precede the adoption; its legal force lies in the responsibility of the educator and in his right to manage the pupil’s estate, however, on an account and without using the income. Finally, we should also mention one form of artificial communication of parental rights, which was formed in Germany and was called Einkindschaft (joining of children, unio prolium). This institution is connected with German concepts of the relationship of spouses with respect to property. A widow or widower, entering into a second marriage, agrees with the second spouse that children born from a previous marriage (Vorkinder) will have the same rights as children born from a new marriage. These agreements are subject to the approval of government authorities and require the consent of the children or their guardians. From such agreements - where they are allowed - a personal parental relationship of the stepfather or stepmother to the attached children arises; their practical significance lies in the fact that the property of the attached children, in which they should have been allocated (abfinden) upon the death of their natural parent, remains with their other parent as before, and the children acquire the right of inheritance in relation to the couple who entered into a new marriage, on an equal basis with their future common children. This right is recognized by Prussian law, but unknown to French law and positively rejected by Austrian law. § 27. Adoption according to Russian law. – Forms of adoption and its effect. – Registration in tax classes. – Adoption in the Baltic provinces The legal idea of ​​adoption came to us for the first time from Greco-Roman law and was preserved in ecclesiastical jurisdiction. Cases of adoption were subject to the church department. There were no civil forms of adoption; but from the monuments it is clear that the adopted person entered the family and acquired inheritance rights. Civil forms of adoption arose among us and appeared in law under Alexander I. These forms were different, and adoption was carried out with greater or less ease and simplicity - according to the difference in classes. Among hereditary nobles and among persons of clergy belonging to the hereditary nobility of the Orthodox confession, adoption was allowed only to those who did not have male descendants or relatives of the same surname, in order to renew the surname; thus, adoption was given political significance. Only the closest legitimate relatives could be adopted - not only one, but several, not only an orphan, but also one who had blood parents. In the latter case, their consent was required. For adoption, the Highest permission was necessary, and for persons of clergy, in addition, the permission of the diocesan bishops (Zak. Gr. 145–147, 150). Adoption by personal nobles who did not belong to the hereditary nobility, Orthodox clergy and church clerks and honorary citizens was carried out according to the decrees of the provincial boards, and by merchants - according to the decrees of the state chambers, with the approval in both cases of the Senate. Among peasants and townspeople, adoption was carried out by registration with the family, for the latter with the approval of the treasury chamber. Like the form, the effect of adoption also varied by class. During the lifetime of the adoptive parent, those adopted by hereditary nobles were given his surname and coat of arms or added to his surname and coat of arms, but were not assigned any rights of inheritance: the adopted children inherited only according to general laws, therefore, after their blood relatives. Among persons of other states, adopted children entered into all the rights of the legitimate children of their adoptive parents, therefore, through adoption they acquired through adoption the right to inherit after the adoptive parent, even in complicity with his legitimate children by blood, and bore all the responsibilities of children in relation to their parents (cf. Cass. decision 1872, no. 755; 1883 no. 114; Coll. Sen. decision vol. I, no. 567). The adopted children did not acquire only the rights of the state and title of their adoptive parents: they retained those that they had before their adoption. The law of March 12, 1891 established general uniform forms for adoption and precisely defined its conditions and consequences. On the basis of this law, adoption in all classes, with the exception of burghers and peasants, is carried out by district courts, and where they have not been introduced, by judicial places. Special rules on adoption apply in the Cossack troops (Law Civil Code, Art. 161 and note on Prod. 1890). According to the Charter on Military Conscription, the adoption of adopted children in the peasant class is proven by the verdicts of village gatherings, in which it must be certified that the adopted children were taken into the family of adoptive parents before the age of 10. In 1892, a police certificate regarding persons who converted to Christianity was recognized as sufficient for this purpose (Constitution of Military Conscription, Art. 45, Note 3 according to Prod. 1893). To prevent circumvention of the laws on the Permanent Settlement Line for Jews, they are allowed to adopt only such persons who themselves have the right to reside in the place of residence of the adoptive parent. (Civil Law, Art. 145, note on Ext. 1894) After the publication of the new law of 1891, does the prohibition of persons of privileged classes from adopting their illegitimate children remain in force? The Senate answers in the affirmative. But the liberal organs of our press ask: why not allow such adoption for everyone without hindrance? One can answer: because such a permission would abolish the sacred significance of legal marriage, as a union sanctified by the church, and all wild, arbitrary and random unions of a man and a woman would be placed on a par with legal marriage, therefore, the law would undermine the significance of the whole family as a permanent union for educating entire generations in the family spirit. In 1863, special rules were established for hereditary nobles on the transfer of surnames, coats of arms and titles. A nobleman (male only) who has no sons or blood namesakes can transfer his surname, with coat of arms and title, to one of his relatives or the husband (nobleman) of a relative who bore the same surname before marriage (with her consent). This transfer, although it takes place during life, is carried out only after the death of the transmitter and can only apply to one person, upon his coming of age, and not to his entire family; upon death, his transferred surname is communicated to his wife and from descending descendants to the eldest in the family. The adoption of a surname requires the written consent of the adopted child and his parents. The transmission is destroyed if, after the transmission, legitimate sons are born to the transmitter. The transfer of a surname does not convey inheritance rights. A request for transfer is submitted to the Highest name through the Office of Petitions, then the case is considered in the Heraldry Department of the Senate and through the State Council goes up to the Highest approval (see Law. Gr. 148. T. IX, art. 324, adj.). Foreigners, not Russian subjects, have the right to adopt foundlings and those who do not remember kinship, so that unknown babies (except Ostzeisk province) are raised in the Orthodox faith (Gr. 163). See also special rules about pet adoption in St. Petersburg. and Moscow Educate Houses in volume X, part 1, Zak. Gr., Art. 156, note, adj. according to Roman law and according to the Greco-Roman laws included in the Helmsman, a relationship similar to kinship arises from adoption. According to church laws, it serves as an obstacle to marriage up to the 7th degree. This obstacle is now not one of the unconditional, but requires the permission of the bishop (Nev. I, 194, 204). The general rules of adoption, in the laws of the Baltic provinces, are taken from Roman law. Adoption is carried out with the approval of the court that has jurisdiction over the person being adopted, or the Orphan's Court if he is a minor. The adopted person acquires all the rights of natural children, but in the hereditary nobility the transfer of rights to a non-nobleman depends on the consent of the noble society and on the Highest permission. Adoptives taken into care differ from adopted children: their relationship is free and does not involve the transfer of rights (Ostz. Gr. Law. 175–196). Chapter five. Guardianship and trusteeship § 28. Concept of guardianship. – Its difference lies in Roman and modern legislation. – Structure of guardianship supervision bodies. – Establishment of guardianship and general rules of guardianship management Parental authority, derived from blood ties, is explained and justified, on the one hand, by a feeling of natural love, on the other, by the need for protection and education. In this case, nature itself indicates to a person who has not yet reached full age a protector, patron, educator and representative in the person of his parents. But when there are neither parents nor their replacement - adoptive parents, then society creates artificial guardianship for a person, makes sure that someone takes him into their care. There is another need, regarding separate property that belongs to children: that there be a representative of their personality in relation to this property, since the children themselves are not yet capable of legal actions. This latter goal was at the forefront of Roman tutelage. The newest concept of guardianship is broader than the Roman one. It more includes the concept of the moral and material care of the guardian for the pet, and this goal of guardianship is in the foreground. Further, in the law of new Europe, the concept of supreme guardianship or the supreme supervision of the government over guardianship, the supreme guardianship and the responsibility of guardians by public rank developed. Guardianship and guardianship become public. In this respect, the concept of guardianship extends beyond family law and can be classified as an obligation. In this part of the course we will talk only about family guardianship. According to the latest legislation, guardianship matters are not left to the action of personal will and personal interest, but are in the department and under the supervision of the government. Usually, cases of this kind are administered either by the courts of the first degree or by the middle courts. instances, or special ones, composed of judicial members of the presence (deputation) called Pupillen-collegien, Waisengerichte, Vormundschaftsgerichte. In England, guardianship affairs and the appointment of guardians are managed by the Lord Chancellor and the Court of Chancery. A very special structure of the guardianship government was formed in France, under the influence of the thought - to the extent possible, a judge can be freed from any administrative matters that interfere with his essential judicial activities. The highest guardianship supervision is granted specifically to the magistrate, a government official who is under trial of the 1st degree, but not to him alone, but as the chairman of the family council, together with whom he must manage the guardianship. This family council consists of 6 relatives, in-laws or friends, half from the father’s side, half from the mother’s side. The determinations of this council in other cases require approval (homologation) of the court of the 1st degree, in others they are subject to appeal in court. Moreover, guardianship matters are subject to supervision by the prosecutorial authorities. In Prussia (Law of 1875), the management of guardianships was given to district judges, whose actions may be appealed to the highest collegiate court. These judges are responsible for overseeing the activities of the guardian. There may be several guardians; where one is appointed, he is also assigned an additional guardian (Gegenvormund), whose duty is to supervise him and help him. To assist the judge in guardianship cases, a guardian from the local community is assigned, as appointed by the community council. Moreover, at the will of the father or mother or at the request of three relatives or in-laws of the person under guardianship to the third degree, or at the request of a guardian or supervising guardian, a family council, chaired by a judge, of no more than six members, may be appointed to supervise the management. This council takes the place of a judge for guardianship. Establishment of guardianship and general rules of guardianship supervision. The reason for establishing guardianship is a condition requiring guardianship by law. Juvenility in itself is obvious; but the state of mental illness requires a medical certificate and recognition (interdictio) by a court verdict. A guardian is appointed either by law, or by the choice of the court, or by will (tutela legitima, dativa, testamentaria). The fourth of the Roman methods - appointment by contract (t. pactitia) - has now fallen into disuse. Most often, the appointment of a guardian is made by election of the court if there is no guardian named in the will; then some legislation (Aust.) indicates that it is preferable to elect one of the relatives who is considered the closest legal heir by minor. In French law (403, 404), only ascendants have the legal right to guardianship. All legislation sets out the reasons for inability to become a guardian; Women are usually counted among the incapable, with the exception of the mother and grandmother of a minor, when one or the other remains widowed 38 . Whoever is capable of being a guardian does not always have the right to renounce this title, for it is assumed that guardianship is a common duty for all: one can evade it only for legal reasons (excusationes), with the permission of the court. The reasons for refusal are usually listed as: decrepitude, illness, engagements with other wards, significant employment, caring for one’s children, etc.; but a certain period is also assigned for the presentation of legitimate apologies. Roman law usually provided care for the personality and upbringing of a minor to his relatives; The position of guardian generally related to the representation of a minor in property. This is not the view on this subject of the new law: now the guardian, together with the property administration, is entrusted with the care of the person of the pet. The guardian must look at the pet’s property more carefully than his own, for the law generally obliges him to manage this property, as is typical for a good owner, and accordingly makes him responsible for damages. When accepting property, the guardian undertakes to make a detailed inventory of it; Not content with this, Austrian law requires the guardian to provide security for valuable movables and debt securities that remain in his hands and are not surrendered to the guardianship; In addition, all the property of the guardian serves as security for the pet by law, by virtue of a legal mortgage, where it is allowed. Under Prussian law, the guardianship court may also require security from a guardian who has been entrusted with the management of significant assets. The security may be increased, decreased or eliminated altogether. The main rule of management is to preserve the capital value of property that generates income; therefore, the law usually prescribes that all movable things unnecessary for immediate use must be immediately put up for sale (C. Civ. 452, 453), and the alienation of immovable property and the expenditure of capital is permitted only with the permission of the highest guardianship authority. This permission is usually required to bring claims and to accept inheritance on behalf of a minor. French law does not allow a guardian to even accept a gift for a minor, at his own discretion. The guardian is obliged to submit a report to the guardian place in his office. Other legislations (eg Prussian and Austrian) require annual reporting. The French, following the Roman model, certainly requires only a general report at the end of guardianship, unless the family council required annual reporting. French law, like the Roman one, does not mention remuneration to the guardian for his labors, even prohibits any gifts during life or by will from the pet to the guardian, before the submission and approval of the final report, in order to eliminate any selfish thought or selfish calculation from the guardianship relationship (C. Civ. 907); On the contrary, German legislation provides the guardian with remuneration for his work from savings from the annual income, at the discretion of the court, or not in excess of the established amount. Guardianship ends upon reaching adulthood; but some legislation allows exceptions to this rule; Thus, Austrian law allows the guardianship court to continue guardianship for an indefinite time, at the request of the guardian or relatives of the minor, for the sake of his physical, mental or moral deficiencies (Oest. Gesb. 251). In the case of emancipation (venia aetatis, Mündigsprechung, émancipation), before full adulthood, the personal supervision of the guardian over the actions of the pet is eliminated, but the participation of the highest guardianship supervision in the alienation of real estate is still recognized as necessary. French law allows parents to emancipate a 15-year-old son, and when there are no parents, gives the same right to the family council (relative to an 18-year-old); the emancipated person is given a trustee (curateur) instead of a guardian, whose assistance is necessary for bringing claims and for all mandatory actions; then the freed owner has the right to independent economic management (pure administration) of the property, but for the alienation of real estate and for loans, the permission of the family council is required, on whose discretion the abolition of the granted emancipation depends (Code Civ. 478–487). In America, a remarkable study appeared on systems of kinship relations in families, published by the Smithsonian Institution in Washington (Systems of Consanguinity and Affinity in the Human Family). The author of this book, Mr. Lewis Morgan, observing the morals and customs of the Red Indians, noticed that they have special concepts about kinship relations, concepts to which they attach great importance among themselves and which are not at all similar to the customs accepted among all civilized peoples. He began a thorough study of this subject, about which he collected information from all parts of the world, and came to the following conclusion. Concepts about the closeness of family relationships based on consanguinity are extremely diverse in humanity, according to the differences in tribes; but upon generalization they can be reduced into two separate systems. Morgan calls one of them a descriptive system (Descriptive), the other a class system (Classificatory). The descriptive system is the same one that we have adopted, the system of 118 Novellas: it comes from Roman law. Its essence lies in the fact that a special name is given to a whole category of relatives descended from a family member separated by a certain number of births (degrees) from a given person (ego) or from a common ancestor: a name, for example, uncle, nephew, etc. The stock of these names is not very rich and is to some extent being depleted, so practice must resort to artificially complicating the terms (such as great-great-grandson, great grand fat-her). On the contrary, in another system all relatives are divided into groups or classes of unequal, sometimes very extensive size, in which the counting of degrees does not matter. In one class are united, for example, the father of a given person along with his uncles on the paternal, or maternal side, or both, and all together are called fathers. His siblings are grouped in the same class with his cousins, and all together are called brothers. Thus, thought can embrace with a single concept many persons at once, at least much more than our system allows us to embrace. It is true that in a whole class there cannot be those shades of individual kinship that we distinguish by degrees and names; but this system of classes satisfies, in a different state of social life, the need to unite an entire group of family members in joint law and in joint responsibility. Maine points out a similar case among the Celtic tribe in Ireland in his book: On the early History of Institutions. Ch. VII. See also a new interesting book about this: Wake. The Development of Marriage and Kinsdhip. Lond., 1889. § 29. Organization of guardianship in Russia. – Establishment of guardianship departments according to estates and departments. – Higher guardianship supervision. – Transitional measures In our country, the correct organization of special guardian places and guardianship administration began with the establishment of the provinces of Empress Catherine II. In the organization of guardianships, our legislation was guided by the class principle, and therefore the department of guardianship affairs is extremely fragmented to this day; but the main places were set up for the noble and urban class, and before the transformation of the judicial part they constituted, as it were, a delegation of class courts of the 1st degree 39 (II vol. General Uchr. Gub., ed. 1857, 4062–4071, 4560–4565). The general establishment of noble guardians and orphans' courts extends only to hereditary and personal nobles, to merchants, honorary citizens and burghers. For other classes - not for all, however, there are special institutions. Orphans of clergy are entrusted to the care of the diocesan authorities; but no rules were established for guardianships of this kind until 1867. This year, the State Council decided that matters related to the care of orphans of the clergy fall under the jurisdiction of the diocesan guardianship of the poor of the clergy. Guardians are under the close supervision of local deans, to whom they are required to submit reports for verification; audit of reports is carried out in trusteeship. The sale of movable property and buildings owned by minors that were not built on their own land is permitted by the diocesan authorities, and the sale of real estate by the Synod (Law. Gr. Art. 236, 252 and Statutory Spiritual Consist. Ed. 1883, Complete Collection. Law N 1495, Art. 80). Based on the Regulations of June 12, 1890 about the military and naval clergy, matters of guardianship and trusteeship of orphans left behind by persons belonging to this clergy are administered by the spiritual board under the protopresbyter of the military and naval clergy. Guardians for the mentioned orphans are appointed by the board with the approval of the protopresbyter. Guardians and trustees must convert the orphans' capital and surplus income into government interest-bearing securities and deposit them in the State Bank. The sale of movable property belonging to orphans is permitted by the board with the approval of the protopresbyter, and of immovable property by the Holy Synod. Income and expenses are recorded by the guardians in special books issued by the board of directors, which, together with the report, are submitted to the board of directors for audit (Law Civil, Prod. 1890, Art. 252 note, 268 note 2, 277 note 3, 288 note). On the participation of Governors and police in guardianship actions, see II vol., ed. 1892, General. Lip. Institution 271, 363, 438, § VII, paragraphs 40–42, 1173. On the participation of court leaders. IX, 293, 295. Hor. Head. Est. General Ave. ed. 1892, Art. 187, adj. Art. 9. For peasants, we had established and permanently operating guardianship institutions only in special departments - appanage and state property, for appanage and state peasants and colonists; in addition, special supervision of local authorities was established regarding the guardianship of young children of artisans in state-owned factories and factories (Zak. Gr. ed.. 1857, art. 241, 243, 244, 298–327). Among the landowner peasants, the establishment of guardianship over minors and their property depended on the landowner when he paid attention to this subject. With the liberation of the former serfs from the landowners' power, an institution was issued for their public administration; but this charter does not contain a special institution of guardianship, and does not indicate the rules for establishing the continuation and termination of guardianship supervision; only in 51st Art. The General Regulations on Peasants mention that the administration of the village assembly is subject, among other things, to “the appointment of guardians and trustees and the verification of their actions.” From this it should be concluded that in the circle of peasant life, guardianship matters are left to the action of custom and the discretion of local authorities. This is an obvious drawback, because regarding the guardianship and protection of the interests of the voiceless, the establishment of order is especially necessary, and verification by the government authorities placed above society is especially necessary. It is not surprising that in the absence of guiding rules and authorities constantly monitoring their implementation, guardianship of orphans and their property is not at all ensured in peasant life. With the application of the General Peasant Regulations to state, appanage, and factory peasants, the previous provisions on guardianship should have lost force, not being replaced by any new rules. The indicated shortcomings of guardianship institutions among peasants have received attention only recently; In the Regulations on Zemstvo Chiefs on July 12, 1889, the Zemstvo Chief was entrusted with supervision of the guardianship of minors in the rural state and the resolution of complaints brought against the actions of guardians, and the supervision of Zemstvo Chiefs on guardianship matters was entrusted to the district congress. Verdicts of village assemblies to authorize the sale of real estate and movable property belonging to minors (except for items subject to rapid decay and other waste) and to refuse the allotment next to minors are submitted to the zemstvo chief for approval by the provincial presence (IX vol., esp. Appendix III to Prod. 1890, art. 33, 38, 98 p. 30). About the customs among peasants regarding guardianship, see Efimenko. Legal customs of the Arkhangelsk province and Pakhman: Common Civil Law of Russia, vol. II, ch. VII. Special institutions of guardianship in the Cossack military lands (Zak. Gr. 332–348; in Bessarabia (242); in the Caucasus, in Siberia, the Turkestan region and among foreigners (vol. II, ed. 1892, Regulations of the Turkest. art. 209, 252–254; Institution. Sibirsk. 34, 69, 332, 366; Uchr. Inorodts. 519, 521; Uchr. Ust., art. 435), among the colonists (Law. Col. 194 et seq.). consul., ed. 1893, art. 2, p. 5). From 345 and 400 of the Constitution of Industry, ed. Finally, in addition to the law, there are cases of establishing guardianships on special rules, according to special Highest commands (Zak. Gr. 261, 296 art.). See, for example, decrees establishing guardianship over the estate of Countess Borkh and Prince Baryatinsky, P.S.Z. 1871, N 50132 and 1882, N 669. So, in general, the care of noble children is entrusted to the noble guardianship (under the chairmanship of the district leader, from a certain number of assessors chosen by the nobility. General. Institution. Provincial ed. 1892, 1152), and in the provinces of Olonets, Vyatka and Arkhangelsk - to the Provincial Guardianship Presences (presided by a member of the District Court or the United Chamber, from magistrate or city judge, by election of the congress, and a member from the administrative department, by appointment of the governor, ibid., art. 1175–1177); care for the children of personal nobles and city inhabitants belongs to the Orphan's Court (under the chairmanship of the city mayor, or a special elected person, from members from the merchant, bourgeois and artisan classes, and where city regulations have not been introduced - from the city elder and two members specially elected for this purpose by the city society, ibid., Art. 1181). In the Region of the Don Army, District Guardianships were established on the rights of noble guardians and Orphans' Courts (Zak. Gr. 332, 333). All these places are in charge of care directly. They are responsible for instructing guardians in necessary and doubtful cases and auditing guardianship reports; but the guardianship regulations do not allow the sale and pledge of the estates of minors by their own authority: representations of this kind are sent by them through the governors to the Senate (for clergy - to the Synod). Complaints against guardianship arrangements are brought to the district court, and against the district court - to the judicial chamber (Law. Gr. 277, 286–288, 333. General. Uchr. Gubernia ed. 1892, 1158, 1160–1169, 1171, 1172, 1185) 40. Special cases when, instead of guardianship, an estate representative is allowed to act (Law. Court. Civil. 755). Apart from the distribution of guardianships by estate, the law does not express any other principle for determining the guardianship department. In practice, the main starting point is the location of the estate subject to guardianship; if the estate remains in more than one district, then guardianship is concentrated where most of the property is (this rule is directly stated for the Chernigov and Poltava provinces. Law. Gr. 235). If there is no estate left at all, then the care of orphans most closely belongs to the care of the locality where the children were orphaned. However, the rule of guardianship jurisdiction, by its nature, cannot be unconditional. § 30. Difference between guardianship and trusteeship. – Appointment of a guardian and his legal qualities. - Guardianship. – Submission of the guardian to supervision. - Taking office. – Management and disposal of property. – Alienation of property and loans. – Guardian's remuneration. – Accountability and responsibility. – Audit of reports. – Disadvantages of guardianship institutions in Russia and the transformation of guardianship. - Guardianship of the peasants. – Guardianship in the Baltic provinces Until the age of 14, the determination of a guardian is entirely up to the government. From the age of 14, the minor himself can indicate a person whom he wishes to have with him for advice and protection in all matters, and this person receives the name of a guardian. By the force of this law, from the age of 14, a minor cannot be guarded by a guardian against his wishes, unless there is a reason to recognize as incapable the person who chooses such a minor as his guardian (see the decision of the General Assembly of the Sen. in the Slavskaya case - in the Coll. Sen. decision vol. 2, No. 999); however, one can hardly doubt that the guardianship can also appoint a guardian of its own choosing to assist such a trustee. But when the guardian of a 14-year-old, on his special estate, is a parent, the minor does not have the right to ask to be replaced by a third-party guardian: otherwise, parental rights in relation to children would be violated. A parent can be removed from guardianship only for important reasons of legal incapacity, regardless of the will and instructions of the minor (cf. ibid., No. 54. Coll. Sen. decision vol. 1, No. 308). According to our legislation, in the supervision of a person who has not yet reached the age of majority, the concept of guardianship differs from the concept of trusteeship. The main features of this difference, as far as the law allows them to be grasped, are determined by the expansion of the minor’s ability to act legally, which begins at the age of 17 (cf. Colonial Statute, Article 152 on the age of majority). Before this age, the guardian, although he may be called a guardian, is still a guardian of the minor, but from this age, instead of guardianship, actual guardianship begins, and the guardian no longer serves as a complete replacement for the personality of the minor, as was the guardian, but only as an addition to the personality of the minor. This addition turns out to be necessary, especially for actions regarding property, which presuppose the completeness of the civil personality; but the concept of supervision over the personality of a minor, its guidance and direction, of personal power over actions, is already of secondary importance. Until the age of 17, the guardian gives orders, and after that the trustee only advises and gives his assistance to the orders or refuses it. Guardianship expresses the positive side of supervision, while trusteeship expresses the negative side. However, our legislation does not draw a strict formal line of division between one and the other title 41 . According to Const. Saved. Cass. 1895, minors and minors who have made a contribution in their own name dispose of it without the participation of a guardian or trustee. Cass. decide 1872, N 1049. Guardianship and trusteeship are established with the aim of protecting the rights of a minor, and not restricting these rights to his detriment. Therefore, it is impossible to recognize as insignificant such actions of a minor that were committed by him, even personally, to protect his rights (for example, filing a claim), and upon reaching the age of majority are not refuted by him. Having acquired some legal capacity upon reaching the age of seventeen, a minor has the right, even without the consent of the guardian, to participate in certain legal transactions, for example, to acquire movable property with cash and alienate it, to receive interest on capital and in general money on the estate, to destroy powers of attorney for the management of his affairs, etc. Wed. Cass. decide 1869, N 324; 1871, N 596, 858; 1875, N 928; 1880, N 98. The job of the trustee is to verify and supplement the will of the minor in each individual civil act that requires the participation of the trustee by law; The purpose of this law is to protect a person who has not yet reached full mental maturity through the participation of a trustee from unprofitable transactions. This, according to the law, is the activity of a trustee, but it does not follow from this that the trustee has the right to grant a minor general or private emancipation, authorizing him in advance to carry out any transactions, or certain types of transactions, and without the consent of the trustee. This kind of authority, or the expressed consent of the trustee to future transactions, goes beyond the limits of his power, is illegal, and cannot, in itself, assign legal force to acts that the minor commits without the consent of the trustee (Cas. decision 1872, N 1092). The establishment of guardianship for minors is a mandatory institution. Without a doubt, it often happens that a minor grows up without the establishment of guardianship, under the uncontrolled supervision of relatives or outsiders, or without supervision at all; in the lower and poor classes of the population this is for the most part what happens. However, according to the idea of ​​the law, the establishment of guardianship does not depend on property; Wherever there is a young orphan, even without an inheritance, the law on guardianship supervision is already assumed to apply. So, although in most cases the question of guardianship does not arise, but if this question is raised by anyone, guardianship must be established; and intentionally leaving a minor without guardianship is completely impossible, and the will of the deceased parent, even when expressed in this sense, is invalid. The guardianship, having learned about the remaining orphans, begins its care: inquires about the estate and, if there is one, appoints a guardian; if not, it takes care of placing the minor (250, 252. Establishment of the General. Prizr. ed. 1892, art. 187, appendix: art. 9, 15, 20). Every guardian, without exception, must be approved by the guardianship (259, 261). Its appointment is made: 1. According to the will of the parents (227) 42. The guardianship power belongs to parents, first of all, by nature and by law, and therefore, even if the deceased father appointed guardians for the children, their mother in any case is not deprived of the right to participate in guardianship together with the appointed guardians (see about this: Mn. State Council. February 21, 1865 in the case of the Khludovs and Tenisheva, Journal of the Ministry of Justice, 1865, N 4). Secondly, the appointment of a guardian occurs by law; during the life of the parents, the father or mother has custody of the property that went to the children (226, 229). Thirdly, a guardian is appointed by election of the guardianship (231). In all these cases, attention is paid to the personal qualities of the guardian (256). When the court allows the wife of the resettled administrator. the husband’s order to remain at his place of residence, and they have children over 14 years of age, the same court is obliged to take measures to establish guardianship over the children (cf. § 13). There is no law according to which a married daughter would not have the right, during her father’s lifetime, to choose her husband as her guardian, in addition to him. Articles about guardians do not apply here. Cass. decide 1872, N 744. The paternal guardianship right is not unconditional, but is dependent on the guardianship supervision, and therefore, when guardianship recognizes a parent as unreliable for the good care of a minor, it can refuse to appoint him, just as he can eliminate the appointed one (Cass. decision 1873, N 1239). The following cannot be identified: people who are known by their character to be bad and vicious; known for harsh actions; state deprived of all or some rights; those on criminal trial (Sborn. Sen. decision vol. II, 967), spendthrifts, insolvents, who had a quarrel with the parents of a minor (Law. Gr. 256). Women are not excluded from the guardianship 43 . The Senate explained that in the second part of Art. 256. a list of persons who should not be appointed as guardians was made only as an example, since among the persons who do not fit this list there may be those who do not show hope of caring for a minor in health, good upbringing and sufficient maintenance for his condition and from whom paternal care for a minor cannot be expected; Therefore, guardianship institutions have the obligation to refuse to appoint as a guardian anyone who does not comply with the general requirement expressed in the first part of the above article (Cass. decision 1873, No. 1239; 1885, No. 106). Our guardianship is a class-based institution. However, there is no direct provision in the law in the sense that guardians must be elected from the same class to which the minor belongs; therefore, there is no direct reason to recognize the choice of a guardian from another class as illegal, or to recognize belonging to another class as a legal reason for refusing the title of guardian. For all this, there is no doubt that, given the legal, everyday and economic differences in classes that exist in our country, in most cases, necessity requires, and care for the upbringing of a minor, as well as for his property, obliges him to look for a guardian primarily in the class to which he belongs by birth. The number of guardians is not specified. One or more may be assigned (253). In general, if the guardian is a parent and the will does not appoint another to help him, then guardianship is granted to him alone (230). In some cases, an additional guardian is appointed permanently or temporarily when the main guardian has a common interest in the property with the minor, for example. may share property with him or have a monetary claim on a minor, a lawsuit against him, or when the mother has a second husband, or the father has a second wife, etc. Guardians, when there are several of them, can collectively manage the guardianship, or a division of activities can be established between them, at the discretion of the guardianship and according to circumstances: for example, one of the guardians may be given the upbringing of a minor, with supervision over his person, the other - the management of property or part of the property (cf. Cass. decisions 1882, No. 9; 1886, No. 54). Foreign legislation is more specific in this regard. German legislation, not trusting one woman, prescribes for the most part, in case of appointing a guardian mother or grandmother, to give her one or two guardians to help her (Gamb., Bavaria, Austria). According to French law, there cannot be one guardian, but the family council appoints an additional guardian (subrogé - tuteur) to each, who must also supervise the actions of the guardian and verify them (Code 420–426, 448, 451). Prussian law allows two categories of guardians: for direct management and for supervision (geventes et honorarii). In our country, the influence of this Western principle was reflected in the Lithuanian statute: in the Chernigov and Poltava provinces, the mother maintains guardianship together with older relatives of the minor or with additional guardians. A married relative is called to guardianship only together with her husband. Relatives are called to guardianship in a certain gradual order (Gr. 232, 295). The father is granted unaccountable management of property inherited by young children after the mother or from third parties. Russian law does not directly say whether the elected guardian, and on what grounds, has the right to refuse the guardianship position. It is directly stated about parents that they can refuse (230, 231), but it is not mentioned about others. In foreign legislation, it is generally assumed that accepting guardianship is a general civil liability and that refusal can be made only in cases specified by law, with the permission of the court. In our country, both law and custom are indifferent to this subject, and the reasons for refusal are not at all specified in the law. However, we must assume that in our country too, guardianship is considered a duty, not a right, and therefore must have the character of coercion and obligatory nature. (Only in the Medical Charter of 1892, Article 557, one reason for refusal is indicated: pharmacy managers, as an exception, are allowed to refuse guardianship.) To Cass. decide 1872, N 641 The Senate recognizes that when the property of a minor is entrusted to several guardians, then each of them enjoys the same rights, and they manage affairs together, therefore, together they represent the personality of the minor. On this basis the appeal. a complaint filed by one of such guardians in the case of a minor, without the participation or authority of the others, is unlawful. Wed. also Cass. decide 1877, No. 17. The correctness of this view can still be doubted, because, as shown above, not in all cases the activities of guardians are assumed to be collective and their representation is collective. Guardianship, like any management, requires unity; it is necessary that the central management of guardianship be concentrated in one place. When estates located in different districts or different provinces are managed by different guardians, this results in significant economic inconveniences, discrepancies in orders and conflicts; Therefore, in such cases, guardianship is concentrated in one place where it is more convenient for the management of estates or for raising a minor, or where the largest part of the estates is located. For the concentration of guardianship, as well as for the transfer of guardianship, according to established economic necessity, from one place to another, the permission of the Senate is usually sought. Guardians are directly subordinate to those places by which they are designated (259 Art. Zak. Gr.). Their determination is made directly by the guardianship or the Orphan's court; dismissal for legitimate reasons depends on the same places. The procedure requires that neither the Civil Chamber (before the judicial transformation and before the transformation in the management of guardianships) nor the Senate take this action directly (Collected decisions on guardianship No. 79, 82). Both the Chamber (now judicial institutions) and the Senate can judge the correctness of this or that action performed by the guardianship only by complaints reaching them. And about the first guardian instance, it should be noted that its work consists primarily in supervision of guardians and in leadership, and not in direct orders. Therefore, the guardianship should not take over matters that belong to the personal discretion and order of the guardians (for example, the sale of property, the distribution of capital on loan and security, business transactions on the estate, etc.) 44. The guardianship must approach direct orders of this kind with extreme caution, because in this case the responsibility falls directly on it, which in order lies directly with the guardian (see Sat. Sen. decision vol. I, No. 638). The permission of guardianship, with the approval of the governor, is required for the issuance of capital to the guardian from the State Bank and other state and private credit institutions (Constitution of Credit, ed. 1893, section IV, art. 68; Cass. decision 1882, N 24, 128). Taking office by a guardian. The guardian is given, in his name, a decree. According to this decree, he accepts all property according to the inventory, together with the member of the guardianship, drawn up in two copies: one for the guardian, the other for the guardianship. According to this inventory, he takes all property into his custody (Articles 266, 268). Many guardians have adopted the custom of taking for safekeeping (in the treasury storeroom) imperishable things, money, tickets, etc., without entrusting them to the guardian’s hands; but such an order is not based on the law, which was repeatedly recognized by the Senate (Sb. Resolution of Guardianship No. 139). From the minute the estate is accepted according to the inventory, the responsibility of the guardians for its integrity begins. There is no doubt that when the guardian takes office and during his management, the guardianship can give him special instructions and rules for management, according to the type of estate and the nature of management. The guardian is obliged to comply with these instructions, unless they turn out to be excessively restrictive and are not canceled for this reason. Control. The position of the guardian consists of: taking care of the person of the minor and managing his property (262–265). In the first respect, his responsibilities are the same as those of parents - to educate and prepare the child for a life consistent with his condition. The guardian seeks personal grievances for him (263–265). The consent of the guardian is required upon marriage of persons under guardianship (Law. Gr. 6; Establishment of Foreign. Ex. 203. Among Lutherans, guardians can refuse their consent only for reasons specified in the law). In the latter respect: the guardian informs the property of the minor, inquiring about all capital that may have been contributed to the State Bank by deceased depositors or transferred to the bank from the former safe treasury (267). The guardian deposits the minor's capital for storage in a credit institution, or turns it into interest-bearing securities, or gives it to private hands for interest on the basis of sure pledges and pledges or against bills of exchange, or uses it in trades and trades, etc. Until 1859, the law was more restrictive: the capital of minors from the nobility was allowed to be given only for mortgages (cf. Sat. Sen. Resolution vol. II, No. 919). Nowadays, it is legally possible for a guardian to use the capital of a minor for operations that are profitable for him (but not associated with risky speculation), for the purchase of profitable estates, profitable credit securities, etc. For this purpose, the guardian is not deprived of the opportunity to take the capital of a minor stored in credit institutions, but not otherwise than with the permission of such an authority that can know the situation of the minor and the identity of the guardians and assess the validity of the reasons and incentives for taking and using the capital. This permission is given to the nobles. guardianship or orphanage by the court, with the approval of the governor (Constitution of Credit, ed. 1893, section IV, art. 68). It is considered incompatible with the position of guardian when he himself borrows the capital of minors (note to Article 268 of the Legislative Code). The guardian manages the immovable estate (269, 270), for the maintenance and improvement of the household and for the benefit of the minor 45. Collects monetary claims and petitions in legal cases of minors (274, 282). Takes care of paying the child’s debts, mainly from income; when there is no money to pay the interest, he can issue borrowed obligations in the amount of them, with the permission of the guardianship (275, approx.). In necessary and doubtful cases, seek permission from the guardianship (286). The conversion of things and property into money is carried out on the following basis. Perishable things are sold by the guardian without special permission, but with a report to the guardian. (The law does not directly instruct guardians to sell perishable property in order to avoid damage and destruction, but it depends on the discretion of the guardianship or the orphan’s court, depending on the type of property, to make such a sale an obligation on the guardians. Cf. Sat. Sen. decision vol. I, No. 646). Imperishable things and real estate are sold in special cases, in compliance with a special procedure: at the request of the guardian, the guardianship, if it recognizes the need for sale, enters with a presentation through the governor to the Senate, on which the final permission depends. The sale of valuable, incorruptible things is permitted: 1) out of necessity, to pay off the debts of a minor or to support him; 2) if the things were the goods of the person from whom they came to the minor. The sale of real estate is permitted: for the payment of inherited debts, due to the dilapidation and unprofitability of the building. The permission of the Senate is required in order to protect the property of minors from embezzlement and sale by unscrupulous guardians without real need; therefore, the Senate must each time verify the motive for the sale put forward by guardians. This verification turns out to be useful in many cases, especially in cases of careless or biased management of the warded estate. (There were, for example, cases where a mother demanded the sale of her children’s estate for a claim she had made against their father, which had not yet been presented to anyone and had not been recognized by anyone, and the sale was recognized as necessary by the guardianship, but when it came to the Senate, the Senate refused permission.) The permission of the Senate is recognized as necessary when a free sale is assumed; it is not needed for public sale in execution of court decisions under the Citizens' Charter. Legal proceedings, or late payments on the pledge of an estate in a credit institution (Cass. decision 1878, N 184, 1881, N 31). These provisions apply only where a new procedure has been introduced; in areas where the old order still remains, the permission of the Senate is required whenever, due to the minority of the owner, there is a reason to proceed with the sale, and this condition is so significant that a sale carried out without the permission of the Senate is ordered to be declared invalid, even if it was carried out at a public auction and even if a court verdict on the sale of the estate took place. Only in this case, the permission of the Senate is not necessary when the sale is made on the basis of a final decision of the court, which took place during the life of the previous, adult owner (Law. Court. Gr., art. 627). The rule on the sale of real estate usually includes the sale of timber, since standing timber can be counted among things that are not subject to decay, and, moreover, before the felling, it constitutes such a part of the real estate on which its main value often depends (General collection, September 1869, according to the village of Kalinovskikh); but for the sale of an estate pledged and overdue in credit institutions, according to the explanation of the Senate, its permission is not required (Sb. Sen. decision vol. I, No. 726). The sale, not by a court verdict, but for economic purposes and by order of guardianship, is carried out at a free price, through the guardians themselves (Law. Gr. Art. 277). On the lease of land from landowners' estates owned by minors (see Civil Law 277, note 1). Loans secured by the estates of minors in credit institutions (or re-pledge) or from private individuals are also made only with the permission of the Senate, when the welfare and benefit of the minor requires it (Article 280). This rule must be understood in a narrow sense, i.e. permission of the Senate is required for each individual case of loan and pledge, with an explanation of the reasons and needs. Pledge is allowed only for needs, and not for providence. On this basis, it is hardly possible to allow a general permission for a guardian to pledge the property of a minor, at his discretion, or to entrust it to private individuals to represent it as collateral for contracts and supplies. Whether a guardian is allowed to enter into personal (and not secured) loans on behalf of a minor - the law does not mention this; but one does not follow from the other, for loans secured by property are necessarily limited by the value of this property, and personal credit has no external measure. Without a doubt, there may be cases when a personal loan seems to be a useful and even necessary means for a business transaction on an estate (for example, when there is nothing to pay the interest on an existing debt on time, you can issue a separate obligation for the amount of this interest, with the expectation of payment at the right time, upon receipt of income); but in any case, it is dangerous to provide the guardian with the opportunity to take credit personally on behalf of the minor, because such a loan is associated with risk, with hobbies and with errors in calculation, which can be disastrous for the minor. Of course, in cases where the hereditary property consists of commercial capital put into circulation, and the trusteeship consists of maintaining and continuing turnover, then credit transactions on them already belong to the essence of trusteeship management. The division of inheritance in which minors participate is carried out by guardians, under their responsibility and under the supervision of guardianship; separate acts must in any case be submitted for approval to the District Court or the court of the first degree (Articles 1336 and 1337). Remuneration for the work of the guardians (all together, if there are several of them) receives 5 percent annually (in the Chernigov and Poltava provinces 10%) from the income from the estate (284, 285). The question has repeatedly arisen and continues to arise: should this remuneration be based on net or gross income. This question is resolved in a very diverse way, and many solutions can be given in both senses. In 1865, the General Assembly of the Senate began to decisively determine this subject, and the Min. Just. stated the opinion that interest should be calculated on gross income; but the State Council chose to leave this issue unresolved until a general revision of the guardianship laws. It is impossible not to notice that when resolving this issue according to the letter of the law, it is more correct to make calculations based on gross income, although in some cases such calculations may turn out to be unfair and offensive to minors. The general expression “income” without the addition of “net”, used in the law, indicates the amount that represents the total productivity of the estate 46. For the Chernigov and Poltava provinces, a separate article defines the calculation of interest on net income (see Journal of the Ministry of Justice, 1865, No. 6, Art. Lyubavsky and No. 9, decision on the village of Popov). In addition, it is impossible not to distinguish in this regard between the types of property under management. If the income consists of interest on capital stored in credit institutions, then the question may arise: do guardians have the right to 5% of this income, since capital turnover in the bank occurs on its own, regardless of the work and efforts of the guardians? Others resolve this issue negatively, believing that guardians have the right to % of the capital only in the case when the capital was formed from income from the estate managed by the guardian and was deposited by the guardian in a credit institution without deducting 5% in his favor; but one can hardly agree with such a decision. The law determines remuneration for guardians for their work, without explaining what kind of work; but, in addition to managing the estate, the guardian may have no less work in raising a minor, in supervision and care, therefore, the given interpretation is closer to the law to which it applies. However, it cannot be disputed that in individual cases, according to the circumstances of the case, and in the case of proven negligence or carelessness of the guardian, the question of his right to remuneration may arise 47 (see Sb. Sen. decision vol. II, No. 798). The practice of the Senate tends, however, to the view that the 5% remuneration determined for guardians should be calculated from net, not gross income, because the interpretation of Art. 284 Zach. Gr. in the sense of calculation from gross income, it would have unfavorable consequences for the guardians, since in many cases, after deducting the remuneration due to the guardian from the gross income, nothing would be left from the net profit for the maintenance and upbringing of the minor. At the same time, the Senate recognizes that guardians receive remuneration only from income, and not from other profits in the property of the ward, therefore, guardians are not entitled to remuneration, for example. from capital collected from debtors, from amounts received from the sale of forests, when they do not appear to be income, but when the sale itself reduces the value of the estate; from winnings to an internal loan ticket (Cass. decision 1872, N 614, 1879, N 177, 1880, N 45). Guardian of the prince's estate. Mingrelsky was refused the issuance of 5%: a) from the annual rent of 10,000 rubles, granted for 20 years in compensation for losses incurred by the Mingrelsky house in the Eastern War, and b) from 12,000 rubles. annually, for the time granted, in compensation for the previous customs duty for the Principality of Mingrel. Refused on the grounds that these amounts do not constitute annual income, but the replacement of property lost in the past with other capital. The Senate (Cass. decision 1872, N 1087) recognized this reasoning as incorrect and disagreed with Art. 284. Zach. Gr., according to the meaning of which, income means “not only the increment to the immovable estate of the ward and the profit from the circulation of his capital, but in general any kind of monetary acquisition constantly and annually (?) received by a minor, due to his exceptional personal or social position, which therefore may not have any basis (?) in the person’s property itself.” In 1870, in the Novosiltsev case, the Senate decided that remuneration was calculated based on income, and not on labor, therefore, a guardian who sold bread collected before him by other guardians has the right to receive a percentage of the proceeds. The guardian is confirmed in his title by the government, and this title comes from state service, and not from a contract; Every position established by government authority is responsible and, since it is connected with management, is reporting. In this sense, it is impossible to imagine and it is impossible to allow unaccountable guardianship, even if the deceased patrimonial owner of the estate, out of special trust in the person, decided for the benefit of freeing him from any accountability for the management of the estate and for the upbringing of the heir: such trust does not take place in the relation of the state government to the guardian, for in the state relation there is generally no place for a personal, fluctuating and changeable sense of trust. Therefore, all testamentary dispositions of this kind are recognized as invalid. These were the decisions on this issue of the Governing Senate and the Committee of Ministers (in 1855 in the case of the maiden Petrova, see Collection of decisions on guardianship in the proceedings of the Commission, vol. II, N 211–215. Sat. Sen. decision vol. II, N 569). So, every guardian is obliged to report to the guardianship that appointed him to the position. After each year, in January, he submits to the Noble Guardianship or the Orphan's Court a report on the income, expenses, maintenance, upbringing and trades of the minor. The guardianship audits these reports, checking their items, and ensures that questionable items of expenditure are certified (Articles 286–288). The guardianship audits the reports of the position with its own authority, regardless of the claim or complaint. Such a revision, in essence, is limited to items that do not present doubt or dispute. These include: verification of the correctness of the shown income and expenses, supervision of the guardian’s orders and their compliance with the instructions and forms given to him, general care that the managed estate brings benefit, and not destruction and ruin (Article 287). At the same time, without a doubt, those expenses that are recognized as clearly arbitrary and incompatible with the situation of the estate can be attributed to the guardian, unless he proves that they were correct and necessary 48. But, regardless of the government audit of reports, the actions of a guardian in managing someone else’s estate, like any person acting on someone else’s account, by condition or order, are subject to verification of the person in whose favor the guardian acts and disposes, as soon as the real owner acquires the legal ability to do so, and in this case (regardless of the approval of the reports by the guardianship) he retains the right to prove his loss in court and demand compensation from the perpetrator (see Cass. decision 1869, No. 935; 1873, No. 578). As a general rule, guardians and trustees, in case of negligence or intentional omission of the rights of a person entrusted to the care of their trustee, are liable with their own estate to the extent that the loss has occurred or may occur for a minor (290, 677, 684 art.). This liability is determined by the court based on a claim brought by the subsequent guardian or by the person under guardianship upon coming of age. The limitation period for this claim is calculated according to the time of majority, but it can be further delayed if the guardian who remained until the end has not submitted a general report on the estate, which he is obliged to submit for all years at the end of guardianship (Article 286). Bokhan, who was appointed guardian of the property of the deceased Korolko, squandered winning tickets and interest on them from this property. Upon recognition of the property as escheat, the treasury filed a claim against Bokhan for 4,963 rubles, against which Bokhan pointed out that the statute of limitations had expired. Gr. Cass. The Department, to which the present case came, recognized, contrary to the decision of the Trial Chamber, which calculated the limitation period from the date of pawning the tickets, the limitation period was not missed, since in cases of embezzlement by guardians of the property transferred to them, the right to claim arises only from the time when the guardian became obligated to hand over the property, i.e. from the time of his dismissal from the title of guardian; on the other hand, according to the Senate, the improper disposal of property entrusted to the guardian is not limited to the mere fact of this disposal, but continues as long as the guardian remains its custodian, i.e. until surrender at the end of guardianship (Cass. decision 1894, No. 22). Guardianship matters are of such a nature that it is impossible to discuss them and take appropriate administrative measures solely on the basis of legal considerations and formal evidence. Where both are not required by the nature of the subject or directly by law, for example. When considering the qualities of a person, the benefit and character, the determination of the measure depends on the discretion of the established guardianship government, which in other cases is subject to revision by the highest guardianship authority, but does not allow revision at all by the judiciary, even in the order of guardianship proceedings. One thing must be recognized - that the discretion of the guardianship authority itself should not be unaccountable, but based on considerations and reasons in connection with the order, and therefore the order can be canceled if it is not justified in itself, i.e. is not explained by reasons and has the appearance of arbitrariness, especially if it has the appearance of bias. Moreover, it should also be noted that the limits of power granted to each of the guardianship authorities must be strictly protected. So, for example, it is impossible to allow orders that depend on a meeting of the entire composition of the guardianship institution to come personally from one of the members of this institution (from the leader of the court or from an assessor in the guardianship, etc.). The minors, with three guardians, lived with their maternal grandfather from the death of their mother and while their father was still alive, until his death. One of the guardians approved of this, and the other two asked to hand over the children to guardians, exposing the inconvenience of them living with their grandfather. The district court respected this petition, but the Chamber left it without respect, accepting that the children lived with their grandfather while their father was still alive, and the guardians did not provide positive evidence that harm would result to the children. The guardians testified that the grandfather was illiterate, that he had a quarrel with the parents of the orphans, and that there were illegitimate children in his family (Article 263 of the Civil Code). The Chamber found that illiteracy does not deprive the grandfather of the opportunity to take care of minors, that the quarrel was unimportant and did not lead to a violation of family harmony, and that the last circumstance in itself is not significant unless it is proven that it causes any harm to the orphans in their life together with the grandfather. The Senate upheld the Chamber's determination, recognizing that the discussion of the factual side of the case depended on its discretion (Cass. decision 1872, N 1076). To protect minors from damage on the part of guardians, it was decided that the guardian and trustee is responsible to the minor for any loss in capital, which, by order of him, was entrusted to a person who subsequently turned out to be insolvent. But if the guardian or trustee himself, having used the capital or property entrusted to his care, in his affairs, becomes insolvent, then this property and valuables do not go to the mass, but are retained for the minors in full, with interest until the day of the discovery of insolvency (Articles 291, 292 of the Civil Law, Establishment of the Court of Trade, ed. 1893, Art. 560, 561). Art. is not entirely consistent with this rule. 599 Set. Court. Trade, in which, in order to satisfy debts of this kind, they are mentioned in the first category. The consequence of an audit of reports may be the removal of the guardian from office, when the guardianship has reason to conclude that the guardian’s actions are harmful or his management is unreliable. The law does not give direct instructions on this subject, and the decision depends on fair economic discretion 49 or on the discovery in the person of the guardian of such qualities and relationships that are incompatible with the title of guardian. In general, our judicial practice tends to the view that the dismissal of a guardian from office should not be an arbitrary and unaccountable action of the guardianship authority, but should be based on consideration of the positive harm occurring to the estate or to minors from the activities or inaction of the guardian. The law does not give any relatives or officials any decisive power of discretion in this regard. If one of the parents of a minor is alive, and even if he himself participates in management, as a guardian, his complaints and statements against other guardians are not given special force unless they are supported by a positive certificate (on this subject, the decision of the General Meeting of September 1867 on the village of Rzhevuskogo). The current structure and state of our guardianship is completely unsatisfactory. The reason for this is not only in the guardianship institution itself, but also in the conditions of public life. A guardianship institution cannot function properly if it leaves little room for the free action of family relations and if everything in it is based not on moral and economic trust, but on compliance with external rules and clerical formalities; and this is precisely our institution of guardianship. In our country, the guardianship institution has acquired the meaning of a public office, having a designated range of departments and a procedure for office work. And the appointment of guardians, and monitoring their actions, and verification of reports, and guardianship of minors - all this has become a matter of clerical form and ritual in our country, so that the guardianship matter, made dependent on the clerical form, often becomes burdensome and unbearable for a conscientious worker to the same extent that it is convenient for a selfish and unscrupulous one, when he can cover up his abuses with the observance of external formalities. Our guardianship institution consists of officials who, due to clerical habit, limit their position to drawing up and signing papers related to guardianship. Naturally, in this order of production, every matter of purely economic considerations, such as, for example, the revision of reports, becomes a matter of form, the application of which or clerical clearance depends on the arbitrariness and discretion of officials, mostly on the office of the guardianship, on which, as a result, the approval or denial of economic orders depends. Thus, the guardianship position, in itself burdensome and responsible, becomes twice as difficult for conscientious persons, and for many guardians there are no people willing to take on this burden when there are no close relatives of the minor in mind. In such cases, to fill the guardianship position, the public office involuntarily elects local inhabitants, so that for some this position takes on the meaning of a heavy duty, from which they try by all means to free themselves through the same guardianship office; for others it takes on the meaning of a profitable business, which they try to obtain by the same means. These shortcomings of the guardianship institution have long required correction and transformation. This transformation was assumed already by gr. Speransky, under whose leadership work began on drafting the Regulations on Guardianships. The project, drawn up in 1838, was considered in the State Council, which recognized the need to separate the places of guardianship from the judicial places and establish a Provincial Guardianship to audit guardianship matters. The case of guardianship was again given legislative movement, as a result of which a new project was drawn up in 1847, which also did not receive final approval. After a new attempt to resolve the matter, in 1861, a special Commission was formed under the Ministry of Internal Affairs, which drew up a new draft regulation in 1865. In this project, by the way, it is proposed to associate the guardianship institution with the Zemstvo Administrations, as zemstvo guardianship, to recognize the second guardianship authority (which no longer exists at the present time) as completely unnecessary and to call on the closest relatives of the minor to participate in guardianship supervision in the general kinship council. This project was not submitted for legislative consideration, but now, with the establishment of a commission to draw up a draft civil code, this commission has been entrusted with the revision of the laws on guardianship, and its proposals on this subject have been ordered to be submitted to the State Council, without waiting for the completion of work on the said project. The commission has already fulfilled its task. In the draft she drew up, it was proposed to abolish the division of guardianship institutions by class and form these institutions under the supervision of congresses of justices of the peace and county congresses, where zemstvo chiefs were introduced, and to entrust the immediate supervision of guardianships to guardianship chiefs - magistrates and city judges and zemstvo chiefs. In cases of guardianship, the participation of class representatives is expected at the congresses - from the Duma and the nobility (where zemstvo bosses are not introduced), as well as from the zemstvo. Guardianship under the project continues until the persons under it reach the age of 21, so that the now existing distinction between minors and minors, according to the project, will be destroyed. Minors are not excluded, however, from any independent activity; upon reaching the age of 17, they are allowed to carry out transactions related to the ordinary needs of life, and, perhaps, a parent or guardian is given the right to receive income from property and interest on capital, manage estates, carry out trade and fishing, and carry out transactions necessary for this. The same rights belong, according to the draft, to minors upon marriage, even if they were under 17 years old. Custody belongs, according to the draft, to the father of the minor, and after him to the mother. Father and mother are the legal guardians. When there are none and no one has been appointed by them in a will or other act of guardianship, the guardian is appointed by the head of the guardianship from the immediate relatives of the minor, and in the absence of them, from strangers. Guardians must meet certain conditions and must be capable of guardianship. They are given the right to refuse the guardianship position for certain reasons; Thus, women, persons over sixty years of age, those in military service, etc., can refuse, and the right is also granted to ask for release from guardianship, for example, due to illness, illiteracy, change of place of residence, etc. A family council may be established under the guardian, chaired by the guardian's chief from the relatives of the minor, and when there is no council, then in order to resolve certain matters, the guardian's chief must invite the minor's relatives for a meeting. Regardless of the guardianship of adults, the draft contains rules for the guardianship of the mentally ill, the deaf-mute, the mute, the blind and the spendthrifts. The concept of trusteeship was not abolished in the draft, but received a different meaning than under the current law. Guardianship is assigned to a minor when parents or guardians are temporarily unable to fulfill their duties under guardianship or when an order is made by the person who provided the minor with any property free of charge to remove the parent or guardian. In this case, guardianship is assigned only to this property. Guardianship on the basis of the project is also appointed over an unaccepted inheritance, in a dispute against a will and during a judicial division, over the property of an absent or missing person. Special rules are defined in the draft for guardianship and trusteeship of rural residents. It is proposed to associate them with the department of volost courts and assign the duties of guardianship chiefs to these courts, and the duties of congresses to zemstvo chiefs and justices of the peace. The Commission's draft was sent to the conclusion of noble meetings; comments were received from them that necessitated some rework, after which it will be included in the State. Advice. In general, it is difficult to apply guardianship, as a legal institution, to peasant life, in its present form, according to its economic conditions. Guardianship is extremely difficult for all classes, and even more so for peasants. It, like any other matter, has its own economic side, which does not depend on the definitions of legislation and is not subject to them. Guardianship administration is established with convenience where, according to the properties of economic life, property can be conveniently separated from personal economic labor, and is subject, in addition to the direct will of the owner, to anyone’s administration, preserving its value and productivity; in other words, the more precise the market, exchange value of the property subject to guardianship, the simpler and more correct the guardianship administration. In this case, supervision of the guardianship management is not difficult, since it is convenient and accessible to everyone at any moment to take into account the value and productivity of property, as well as the costs required for its protection and administration. Otherwise, no matter how strict and coercive the laws of guardianship are, no matter how many formalities are established for supervision, supervision will be difficult, because accounting is difficult or completely impossible. In our country, as we know, the value and productivity of property in most cases depend on personal and random circumstances, and not on the laws of market exchange, are subject to various random fluctuations, and in rare cases allow clear and correct accounting. This is where the extreme ambiguity and uncertainty of the guardianship relationship and the extreme difficulties of the guardianship administration arise. The peasant economy is, one might say, in a primitive state; here the value and productivity of property generally depend almost exclusively on personal labor, and property separated from it very often loses value or is reduced to the last limits of value. Usually the property of a peasant house does not represent impersonal, determinative capital that could support and maintain its value and productivity during tutelage; and therefore it cannot withstand guardianship as an institution. In special cases, there may, of course, be a third party who, out of concern for the minor, enters into his household in his interest, as a guardian; but the activities of such a guardian, by the very nature of the economy, would not withstand the formal control and formal reporting associated with guardianship. Whoever takes an orphan into a home is the guardian. Sometimes it happens that a guardian is selected and approved by society by verdict, but in general in peasant life formal approval of a guardian is not required (this is also recognized by the Senate. Cass. decision 1867, No. 352; but in another decision of 1872, No. 210 it was confirmed that the appointment of guardians and trustees lies with the responsibility of the village assembly). Correct, periodic accounting of the guardian is also not a peasant custom, which is explained by the insignificance, in most cases, of peasant property. Orphan money is sometimes kept in the volost government or in the church, and the land is rented out to the community. The guardian's reporting, when he has property in his hands, comes only if waste and abuse are discovered. So, the institution of guardianship is alien to peasant life, in essence it is so alien that in some areas there is a custom: after the death of the owner, who left minors, to give the farm into the hands of one of the relatives, with the rights not of a guardian, but of a full owner - for his entire life, in complete independence from the young children of the previous owner, with the fact that only after the death of the new owner the property passes to the eldest son of the previous owner. This attitude (which is absolutely unthinkable in the everyday life of other classes) clearly expresses the exceptional importance attached to personal labor in comparison with capital, which does not allow for correct accounting. Only the Mennonite colonists have correct customary, written law, which defines in detail the order of guardianship and guardianship 50. Guardianship under the law of the Baltic provinces. Minority is until the age of 21, but upon reaching the age of 18, emancipation is allowed with the approval of the judiciary. Guardians are established by law (parents) or appointed by will and determination by the government. Guardianship belongs to the closest relatives in the order of inheritance. Women (except mother and grandmother) cannot be guardians; the requirement to be appointed as a guardian is not permitted. Guardianship constitutes a public service; refusing it and, having accepted, laying it down is allowed only for the reasons specified in the law (Gr. Zak. Ostz. 269–336). The Baltic law on guardianship is very developed compared to the Russian one and can serve in many respects as a model for the latter, especially with regard to the legal idea of ​​representation, management instructions and responsibility. The trustee is given considerable freedom in the disposal of property, with which the law also combines strict liability, precisely defining cases in which court approval is required. As a general rule, there are two guardians, and all of them are bound by the joint management of mutual responsibility in responsibility. They are required to submit annual reports to the Orphan's Court (except for parents, grandparents and those dismissed by testamentary assignment from reporting). Guardians are remunerated (with local exceptions) at 5% of net income. Upon termination of guardianship, a final report is submitted. There is a special limitation period for filing a claim against a guardian. Guardianship is established only for adults, for special reasons outside of family relationships (Articles 337–493). Chapter six. Kinship Relationships § 31. The concept of gender, degree, line and genus. – Lines are straight (ascending, descending) and lateral. – Calculation of degrees and names of kinship. - Relatives, full and half-relatives. - The property is two-genous and three-genous and the calculation of its degrees. – Roman and Germanic kinship number systems A clan is a connection between all male and female members of a family descended from one common ancestor, even if not all of them bore his name or nickname (Article 196 of the Gr. Zak.). So, the integrity and unity of the clan are determined by common descent from one person: the clan is united in the ancestor. Each person by birth belongs to some clan, but not to one clan exclusively, but to several clans, which certainly have a blood connection with him, but may not have it among themselves. So, for example, everyone by his father belongs to one clan, and by his mother, to another, by his grandmother, his father’s mother, and by another, his mother’s mother, he belongs to the third, fourth clan, etc. Each of these clans, counting him among their members, is connected with him by blood union, but at the same time, each has its own integrity and its own special ancestor, in whose person it unites with others and from whom it receives a nickname. Thus, each person can have kinship in several clans, to which he belongs by blood. Towards the definition of genus in Art. 196. It should be noted that in this general concept there is a common ancestor, the source of the surname belonging to the clan. In this sense, when I say: my clan, the Fedorov clan, I mean a clan that does not come from me personally, but from the head of the clan, from whom my father, grandfather, and all of us, the Fedorovs, descend; those members also occur. genders who, having joined other clans by marriage, bear their surnames, with their descendants; They are also from our family by blood. But there may be the closest definition of clan, from which descent through women is excluded - “genus in the male line.” The beginning expressed in Art. 196 is also attached here. So, if, for example, the testator said: in my family through the male line, it would not be right to understand that the testator is talking about the male offspring of his daughters. He means his own clan, descended from a common ancestor, and every member of that clan, in the male line, bearing the same surname. Kinship is the relationship of one member of a clan to another member of the same clan. This relationship may be more or less close or distant. Kinship depends on the unity of family blood among relatives. This unity consists in the fact that one of the members of the clan received his blood from another, accepting from him directly or through another member his existence, or in the fact that one of the members received his blood together with the other from one common ancestor. Kinship is considered close if one has to look nearby for the source of communication of blood between two persons; it is considered distant if this source is distant by several births or generations. Hence the concept of lines and degrees, which determine the closeness of kinship (Art. 197). Between two persons, from which one came, was born from the other, there is only one birth. Apart from this case, several births can always be counted between two persons of the same family. The fewer births there are between two persons, the closer their relationship, and vice versa - the more births, the more distant the relationship. These births are called degrees. So, for example, there are three births between me and my great-grandfather: from me to my father, from him to his father or to my grandfather, from the latter to his father or to my great-grandfather. The act of birth was performed three times, the blood was passed on three times until it reached me from my great-grandfather; therefore, there are three degrees between us. There are two births between me and my brother, for I was born from my father, and from the same father another son was born, my brother: two acts of birth had to happen in order for me to receive a brother; So, there are two degrees between us, and by the same calculation, therefore, between me and my nephew, my brother’s son, there are three births and three degrees. The connection of births or degrees, continuously calculated between two given persons, constitutes a line of kinship between them (Article 198). The relationship is either direct (ascending or descending) or collateral. If the kinship between two persons is of such a nature that one of them comes from the other, then they are both in a direct line of kinship, and if we count this kinship down, from the source of blood (for example, from the great-grandfather to the ancestors of the Alekseevs and Semyonovs, and in each of these clans I can have relatives in the lateral lines. The closeness of kinship is expressed by the number of degrees or births. In a straight line, in order to determine the closeness of relationship between two persons, one must count the number of degrees between them. So, between me and my father there is one birth: I am related to him (of the same) first degree. There are three births between me and my great-grandfather, therefore, I am related to him to the third degree, etc. In the lateral line, to determine the relationship between two persons, it is necessary to find who their closest common ancestor is, in whom their blood is primarily united, and then count how many births through this ancestor between these two persons; otherwise: you must first count the number of births from one given person to the common ancestor and from this latter to another given person: the number of all births will show the desired degree. So, if you want to determine the degree of relationship between me and my own nephew, I need to find in whom we are united by blood. My nephew is my brother’s son, and my brother and I have the same father; Consequently, my nephew and I are united in my father and his grandfather. From me to my father there is one birth, and from my father to my nephew there are two births, so I am related to my nephew to the third degree. See Helmsman, ch. 48 Ave. 7. According to the order of this calculation, the terms are distinguished: relatives, cousins, second cousins, fourth cousins, etc. The word native usually means a relative in the first lateral line. My brother and sister come from the same father as me; my own nephew - the son of my brother, etc. But there is also a shade of relatives among themselves. Every person comes from a couple, i.e. from father and mother. The children of one father and one mother have the full communion of double blood; but if the father, after the death of the mother with whom the children were born (or the mother after the father), entered into another (or even after another into a third) marriage, then those born from a subsequent marriage with children born from previous marriages have only one common parent, therefore, they have incomplete, half communion of blood. From this, some of the brothers and sisters are considered full-blooded or in the closest sense relatives (vollbürtige), others - half-blooded (halbbürtige) or half-brothers; having a common mother, but different fathers, are called uterine (uterini) brothers and sisters; and having a common father, but different mothers, are called half-blooded (consanguinei). This difference in kinship, by nature, encourages us to assume a closer connection and stronger mutual love between the children of common parents than between children who have only one parent in common, and in accordance with this assumption, many laws in inheritance give preference to full-blooded brothers and sisters over half-blooded ones. Our legislation, without directly expressing this preference, in only one case expresses it indirectly, and calls full-born relatives, contrasting them with half-brothers and half-bloods. This will be discussed in more detail when explaining Art. 1140. Zach. Citizen There is also an old name for uncle: strict; brotherly nephews - brotanich, bro (cousins ​​are called by the same name in other places); according to sister - sister, sister, sister. In the second lateral line, coming from grandparents, there are cousins. Cousins, first cousins ​​and nephews, children of a nephew and niece, or first cousins. In the old days, cousins ​​were also called: slender first. The brother of one's own grandfather or great-uncle was called the great great; sister of grandfather or grandmother, great-aunt - great aunt; Great aunt is called little aunt. See Helm. Ch. 50. In common parlance, the following names for cousins ​​are also used: first cousins, cousins, opposite brothers, sisters. In the third lateral line, coming from great-grandfathers and great-grandmothers, there are second cousins, otherwise called grandchildren, etc. Every birth and, therefore, every relationship comes from a couple, i.e. from husband and wife in union. However, husband and wife, being one by blood and spiritual communication, are not in any degree related to each other (unless one spouse belongs to the other’s clan by birth itself). Nevertheless, the union of husband and wife seems so integral and complete that both the genera of both are included in this union. A union of two clans is formed (male and female), so that the members of each of these clans enter into a relationship similar to kinship with the spouse of the other clan and with each other. This is the relation of the so-called property (affinitas). The closer in degree of kinship a relative is to one of the spouses, the closer in character he is to the other spouse and his relatives. Such, for example, is the connection between me and my wife’s brother, between me and my stepmother, between me and my daughter’s husband, between me and my stepmother’s son, who was brought together by my brother. This will be a relationship of property in which two genders participate through one marriage: a two-gender property. But the property can extend even further, to three genders, when three genders are added to it through two marriages. This will be a tripartite property. This is, for example, the relationship between my stepmother and my wife’s brother. (My stepmother is in property with me through my father’s marriage, and my wife’s brother is in property with me through my marriage.) Such is the property between my stepson, the son of my first wife, and between my second wife; between me and my father-in-law's stepmother, between my brother-in-law and my daughter-in-law. The proximity of a property, just like the proximity of kinship, is determined by degrees, the calculation of which is similar to the calculation of degrees of kinship; only in this case it is necessary to remember that the property comes from marriage and that the husband and wife are one person, therefore, there is no degree between them. So, if it is necessary to determine the two-parent property between one spouse and a relative of the other, then it is enough to calculate the degree of blood relationship; the same number will determine the degree of property, for since a person is related to one of the spouses, to the extent he is related to the other spouse. My wife's nephew is related to her in the third degree; therefore, he is with me in the third degree of affinity, for I am one with my wife. If you have to determine the property between a relative of one spouse and a relative of the other, then you must calculate the relationship of one person with the husband, then the relationship of the other person with his wife, and add the degrees together, again counting the husband and wife as one person. My wife’s nephew is related to her in the third degree, and my brother is related to me in the second degree; therefore, the property of both of these persons is in the 5th degree. The property of tripartite originates either from a double marriage or from two separate marriages. In the first case, the calculation of the property of three generations is in all respects similar to the calculation of the two-generation property, for two marriages of one person, as well as one marriage, do not constitute a degree. So, for example, if my son-in-law is mine in the second degree of the two-parent property, then, after the death of my son-in-law’s wife, and my sister, if he marries another time, his second wife will be mine in the second degree of the three-parent property. The father of my first wife and the mother of my second wife will be in the second degree of the property of tripartite. When a tripartite property comes from two separate marriages, its degrees are calculated from the lines coming from both one and the other union, and then the numbers are added together. For example, when the property between my father’s stepfather and my wife’s sister is calculated, then from the first to me there are two degrees of the two-gender property, and from me to the last there are also two degrees of the two-gender property; Consequently, these persons find themselves in the fourth degree of the property of three-genus. Calculating the property between my half-brother, the son of my stepmother, and my wife’s niece, I find that the first is with me in the second degree of the two-gender property, and the latter is in the third degree of the two-gender property, therefore, these persons are in the fifth degree of the trigender property. The following names are used in the two-gender property: Stepson is the son of a husband or wife from a previous marriage. Stepdaughter is the daughter of a husband or wife from a previous marriage. Step or half-brothers and sisters from stepmother's previous marriage or stepfather; information, information. Matchmaker, matchmaker, matchmakers - parents of spouses. Brother-in-law is his wife’s brother (according to Kormcha, and the husband of his wife’s sister). Sister-in-law - wife's sister; still - hang down, hang down. Son-in-law - sister's husband, daughter's husband. Daughter-in-law, sister - brother's wife. In tripartite kinship there are names: Brother-in-law is the husband of his wife's sister. The law of the Baltic provinces distinguishes in a consanguineous union agnates (Agnaten, Schwertmagen), united by blood through men, from cognates (Cognaten, Spillmagen), who are related through women. Women related to the female generation are especially called Nifteln. Ostz. Gr. Zach. 260. By force 209 Art. I-th part X vol. Zak. Gr. parish (metric) books and, depending on the rank of the persons whose relationship is being sought, noble genealogical books, city philistine books, audit tales and other acts of status (1032 Art. IX Vol.), therefore, acts of official significance, are accepted as proof of the closeness of kinship. If we compare this rule with the rule on evidence of the legality of birth (Articles 120–122, 125, 131 and Zak. Court. Civil, Articles 458–466; compare § 17 of this book), then the latter will be more extensive than the first. And according to the subject itself, it is natural that the law had a reason to favor claims about the legality of birth, a basis that is not visible in claims about the proximity of kinship; Moreover, a claim for the legality of birth may have independent significance and independent interest, regardless of the approval of property rights at birth; A claim for proximity of kinship does not have such independent meaning: it always intends to assert another right based on the proximity of kinship based on this proximity. Finally, the birth claim, by its very subject, allows for more scope in evidence. It does not require approval of a direct connection of legal descent between parents and children, and in order to determine the closeness of relationship, it may be necessary to verify and certify the entire chain of births by which two persons are related to each other. The son bears a simple name, and it is possible under the law to justify the son’s name not only by an act of legal birth, but also by the proven consciousness of the father that such and such a person is his legitimate son. But the name, for example, of a cousin’s nephew is not at all simple, and it is necessary to justify it by acts testifying to the sequence of births, by which the closeness of kinship is established. It is difficult to admit that the uncle’s certified consciousness that such and such is his cousin could serve as a substitute for evidence in this case. In inheritance claims, the question is often raised: what evidence can the court consider sufficient to determine the proximity of kinship, and whether the acts specified in Art. 209 should be Zach. Gr., mean in exclusive formal force? There are decisions of the Senate (Cass. decision. 1875, NN 761, 975; 1878, N 177), which recognize that confessional signatures, extracts from refusal books, and the consciousness of the opposing party can serve as evidence of kinship; but on the basis of Cass. decide 1867, N 347, certificates of private individuals and pedigrees certified by private individuals cannot be accepted as evidence of close relationship, and that rule 209 art. should not be confused with the rule of Art. 123 and 124 (respectively, Articles 459, 460 of the Law Court. Civil); These judgments, however, resolve only a particular case. In general, it seems that we must admit that Art. 209 does not have a strictly exclusive meaning, i.e. that it does not eliminate the possibility of proving the closeness of kinship by other acts other than acts of fortune; therefore, the court will hardly have the right to reject without consideration the evidence presented about this simply because it does not belong to the number of acts named in Article 1032. IX volume. Without a doubt, if the petitioner seeks, in addition to these acts, on the basis of other documents, to confirm his relationship directly, for example. To justify one’s name as a great-nephew by the fact that this name is assigned to him in an act that does not belong to the number of acts of the estate, such a requirement is illegal. But, if, having declared his relationship with a well-known person in a certain order of genealogical connection, he manages to justify and certify every birth in this connection, every link in this chain, especially through undoubted acts, then the court does not seem to have any difficulty, in view of Article 209, together with Articles 459 and 460. Zach. Court. Citizen and from 1356 Art. Est. Gr. The court, take all the evidence into consideration, and on the basis thereof recognize the demonstrated close relationship as undoubted. A note about metric certificates A birth certificate is essentially nothing more than an extract from a birth register, i.e. an exact copy of the record certifying the event of birth, marriage and death immediately following the event, in a strictly established form (IX Vol. Art. 1033–1053). The metrical certificate is issued only from the consistory, where the original metrical registers sent annually from parishes are stored. These records are protected by law very strictly. In cases of an error made in them (for example, in the name or patronymic of a person, etc.), correction thereof is allowed only by determination of the consistory and by accurate research. Moreover, there may be cases when the existing record turns out to be doubtful or does not appear at all (which often happens in ancient times or after the burning or destruction of metric books). Art. 259, 265 Set. spirit. cons. In this case, the question arises of correcting an existing record or restoring an unrecorded event and issuing a certificate of it from the consistory in the form of an independent (so to speak, retrospectively drawn up) metric certificate. To restore the event requires research. It consists, as prescribed by the law (Const. Cons. 260, 261, 265–269), 1) in a certificate with other, not so doubtful church acts, in which the church actions of a person are recorded, when indicating the number and age, i.e. with search books and confessional paintings; 2) in consideration of other civil documents, from which it can be seen what kind of family relationship this or that person was and was recognized, and when exactly; 3) when these certificates do not lead to an undoubted conclusion, an investigation is carried out with interrogation - the clergy who officiated the marriage or was at the baptism, witnesses to the event, recipients and other reliable persons. If, based on all this data, the consistory comes to the conclusion that the event is certain (marriage, birth from a famous couple), then it issues a certificate indicating the time of the event, if it is certain. Otherwise, it refuses to issue a certificate. The absence or destruction of metric records is not uncommon in Russia. Therefore, there are also frequent cases of petitions from interested parties (especially in inheritance cases) for the issuance from consistories of metric certificates of the origin or marriage of a person who has long since died; Moreover, private individuals, in their own interest, are disposed to transfer into consistory proceedings the argumentation characteristic only of competition in civil court. But the conditions, as well as the goals of both productions, are not the same. The civil court will have to verify the relationship or marriage of one person with another, for which it may be sufficient - and without a metric act - the undoubted mutual consciousness of the connection between persons, certified by acts, supported by civil actions corresponding to this consciousness, recognition of this connection by relatives, third parties, public places, etc. For the purposes of consistory proceedings, this is not enough so that evidence can be issued - and indisputable, unconditional - that the event took place at a certain time, in a certain place. Unfortunately, consistories do not always clearly understand this essential difference and are inclined to issue metric certificates where an event cannot be unquestionably restored with the actual situation; there is only one assumption about the event or its probability. The unclear concept of metric registration is also reflected in requests for correction of metric certificates in the event of the subsequent legitimization of children born out of wedlock. Satisfaction of such requests is impossible, because it contradicts the very essence of metric registration. She doesn't care about the legality or illegality of the event. It notes only a fact, without testifying to a right. When a child is born to a mother who does not have a husband, the record refers to one parent and there can be no talk about a parent whom no one knows. So, this minute, the minute of birth without a father, cannot be assigned a legal property, the father cannot be entered into the record retroactively. On the other hand, when a child is born to a mother who has a husband, he is registered in the name of the wife and husband, even if the husband was actually absent from the place of birth for a long time and at least because of this, the general opinion considered the child illegitimate. The above-explained system of notation of kinship passed into our church law from Roman law, where it originally comes from, and is called civil notation (computatio civilis). But this number system is not the only one. In a historical sense, in addition to it and along with it, another number system, which passed from the old German law to church law in the West, was of great importance. This system is known as the Old Germanic, or canonical, number system (computatio canonica). The difference between these two systems is rooted in the difference between the Roman and German concepts of family and clan. In the Roman system, all relatives (without distinguishing between the families to which they belong and the persons from whom they directly descend) are considered as one whole, within which, to determine the closeness of relationship between two persons, only the number of births or degrees (quot generationes, tot gradus) is calculated; Only this one unconditional measure serves to determine the closeness of kinship, and any meaning of family proximity disappears, and no one line is given preference over another: the descending one is not closer than the ascending one, the lateral one is not further than the descending one - everything depends only on the number of births. On the contrary, in German notation the idea of ​​the organic unity of the family in its members predominates, and therefore the member or generation is taken as the unit of notation. The German system distinguishes within the clan family and circles of more or less close kinship, and in order to know how related two persons are to each other, it is necessary to determine, first of all, from whom they collectively descend, who their common parent is or the closest head of the family. Therefore, to calculate the closeness of kinship, it is not only calculated, but also weighed. Obviously, this number is more natural, because it corresponds to the natural feeling of family kinship, which distinguishes near and far not by number of degrees, but by unity and the strength of the family bond. The relationship of a son to his father, a grandson to his grandfather, a father to his son, a grandfather to his grandson, an uncle to his nephew, a nephew to his uncle, brothers to each other cannot be measured by one general measure, for each - in itself - is a living blood relationship, and one is closer than the other by natural feeling. Therefore, the German notation, distinguishing kinship by the proximity of a common parent (tot generationes, quot parents), is more satisfactory for the feeling of kinship, for it is not limited, like the Roman one, to mechanical notation of degrees. Each person is considered to be closely related to the common ancestor, since he is in the generation closest to him. So, for example, if, according to the Roman reckoning, brothers are in the second degree of kinship, counting by birth, then according to the German system they would be in the first generation, cousins ​​in the second, etc. If the lines are uneven in degrees, then in the Roman system this circumstance does not change the number, and therefore when counting, for example, uncles and nephews, they find themselves in the third degree in the count of births; on the contrary, the German system in this case distinguishes the inequality of lines and counts kinship along the longest line, taking into account the distance of the person in it from the common ancestor, so that the nephew relative to the uncle ends up in the second generation of two unequal lines. According to the Roman numeral, my brother's grandson, my cousin and my grandfather's brother - all three are equally related to me, in the 4th degree; and, according to the German reckoning, the first is my relative in the second generation, the second in the third, and the last in the fourth. Since the 9th century in the West, this number system began to gradually yield to the Roman one as the simplest system, and now the numbering of degrees is reduced everywhere in practice to the Roman system, which is meant by secular legislation. But the canonical reckoning of the Western Church adheres to the old Germanic principle. In addition, the German view of the closeness of kinship based on generations was reflected in the laws on marriage and inheritance in force in the West. As for property, in the Western Church only the property of the spouse himself with the relatives of the other spouse has practical (prohibitive) significance, but no special significance is attached to the property between the relatives of both spouses. Appendix to the sixth chapter. Special rights and obligations arising from family and kinship relationships 1. The duty to provide maintenance and the corresponding right (droit d'aliments, Alimentationspflicht and Recht, alimenta). This obligation, regardless of the contract and will, is also established by law, specifically in relation to family relations. The obligation to provide maintenance is assumed to be necessary, as an attribute of family power, when the family lives together. This is how parents support their children during their upbringing and are undoubtedly obliged to support their children, even adults, until they leave or as long as the children do not yet have their own means of living. So the husband is obliged to support his wife. But in addition to this, and regardless of power and cohabitation, due to blood relations only and family ties between certain persons, an alimentary relationship is recognized. Not all legislation defines alimony in the same way, but it is defined in detail in Roman law. This right undoubtedly exists between those who ascend and those who descend; it is recognized almost everywhere between the adopted person and the adoptive parent; only Prussian law recognizes it between brothers and sisters. This right is assumed only where there is, on the one hand, a real need, and on the other, the ability to satisfy it. This right ceases with the death of the obligated person and does not extend to his heirs (except in cases of extreme need, according to Roman law); it is deprived of the one who himself evades the fulfillment of a similar duty. By content we mean what is needed only for bodily needs (such as housing, clothing, food), and its measure must correspond to both the state of the one who requires and the means of the giver. The need for education is not considered alimony; but Prussian law distinguishes between two types of maintenance: one in accordance with the state (standesmässige), the other extreme (nothdürftige): alimony of the latter type is only given to brothers and sisters and to the impoverished due to their guilt, and in other cases, training in a craft or art is considered alimony. Recently, in science and in German legislation, strong disagreement has arisen on the issue of the right of illegitimate children to demand maintenance from their father (see above, about illegitimate children). Our legislation recognizes the obligation of children to provide maintenance to their parents and husband to wife (see above § 13 and 23). The right to receive maintenance can be the subject of a special agreement concluded not only between blood relatives, but also between strangers, and the reason for concluding an agreement is usually the surrender or transfer of property from one person to another, with the obligation to support the donor as a dependent. Such agreements are very common in our everyday life, for example. during the division of the estate, regarding the transfer of the estate or division from the father to the children, regarding marriage, when the father-in-law goes to his son-in-law’s house, and finally, regarding the previously used rental of places between the clergy and church ministers. But an agreement of this kind, between parents and children, cannot, as the Senate recognized (Cass. decision 1873, N 1446), have decisive significance. The property and measure of maintenance are determined, regardless of the agreement, by the funds of one party for the property and the personal needs of the other party. In this sense, the Senate recognized that, despite the agreement between the son and mother on the payment of 5 rubles per month for maintenance, the amount of this payment could be increased due to the rise in price of living supplies. 2. Among the special rights and responsibilities arising from family relationships are funeral duties and the right to choose a place for the burial of a deceased relative. This obligation is assumed by itself, but as more or less significant costs may be associated with it, then disputes may arise about who is obliged to compensate them. First of all, this responsibility falls, of course, on the heir or heirs, to the extent of the received share of the inheritance; Regardless of hereditary responsibility, according to the usual assumption, the funeral responsibility lies first of all with the remaining spouse, and then with the one who, according to family relations, would have the obligation to provide maintenance to the deceased. Of the positive legislations, only the Prussian contains regulations on this subject, placing the said obligation on the spouse (Allg. Ldr. II. 1. § 434). Corresponding to the obligation is the right to choose a burial place for the deceased, even if he himself did not make a will where to bury himself. For those who remain, a special interest of family love and religious need is connected with the place of burial; therefore, disputes about the burial place are possible between relatives. In this case, they have to be decided by the court, which is guided in its decision by considerations of the comparative proximity of one or another family relationship. One can point to several decisions of French courts, which recognized the preferential right of choice for the remaining spouse of the deceased. At the same time, it is interpreted that the subject of dispute in such cases is not the disposal of the body of the deceased, but a special kind of duty or service (obligation de faire ou de laisser faire), and the legal possibility of agreements and mutual concessions between relatives about the place of burial is recognized (Journal of the Min. Justice 1862, No. 11, p. 442. Dalloz. Repertoire. Culte. N 785. Jurisp. generale 1869, 2. 233). A similar trial about the burial place of the historian Michelet, in the Toulon civil court, in March 1874. In 1892 (C. Legal., No. 28), the statute of mutual assistance of the family of barons of Korf Schmiesing was approved, the first institution of this type, following the example of which the statute of the vz. was approved in 1893. the help of the family of barons Raden and then other charters. The purpose of such institutions is to maintain the honor and nobility of the clan and provide financial assistance to needy relatives, for which capital is made up of cash contributions and donations and real estate can be purchased. Management belongs to the general meeting of members of the institution (who enroll as members on special applications) and the elected clan council, which is constantly operating. The general meeting is authorized to expel members who have been discredited by the court or who have committed a dishonorable act. However, some legislation, for example, Prussian, classifies the law on the relationship of the owner with the domestic servant (Gesinderecht) as family law. There are areas where, before marriage, it is possible for the groom to take his bride for a trial for several weeks, and after such a trial, the marriage may not yet take place. Russian law generally prohibits children (not just minors) from marrying without parental consent. It follows that adults must also seek such consent. A married marriage without the consent of the parents is not destroyed, but whether the wedding itself is possible without this consent, the law is silent about this. Meanwhile, according to the Greco-Roman (city) laws, helmsmen, emancipated sons and daughters (adults) could marry at their own discretion if they were more than 25 years old. Under 25 years of age, the daughter had to seek the consent of her father, and in his absence, relatives and superiors (Kormch. Zak. Grad. Gr. 4, Ch. 3, 7–9. Ch. 10, 24. Ch. 12, 15, 19). For marriage without parental consent, the criminal law (Code of 1885, Articles 1549, 1566) threatens with imprisonment for a term of 4 to 8 months. There is no doubt that punishment cannot take place, just as refuting the correctness of the marriage is inappropriate when there is evidence that the parents, knowing about the marriage, did not timely declare their disagreement or prohibition. In essence, the rule of the Council of Trent relates not so much to the church side as to the civil side of marriage, and is even placed not in the dogmatic, but in the disciplinary part of the council’s decrees. Where the Rules of Trent have not been published, the Catholic Church itself recognizes as valid marriages not even performed in the presence of a priest. See Repertoire Dalloz. Culte. No. 6. Even earlier, in 1580, the Dutch states issued a law on civil marriage, but exclusively for dissidents. The Scottish form of marriage differed and still differs in its characteristics from the English one. According to Scottish law, the basis of a marriage union is solely the agreement of the parties, but the form in which this agreement is expressed varies. In addition to the correct form, in which a church ceremony is required, by three times announcement in the parish of the place where both parties had residence for 6 weeks, the law also allows an irregular form of marriage without any announcement, with a simple announcement of the completed union at the magistrate and, in addition, allows completely formless marriages. According to Scottish law, a marriage agreement can be expressed in any way - in writing or verbally or simply by bowing the head: the marriage union was strengthened by such an agreement if it was followed by material cohabitation; Witnesses, confession, and oath are accepted as proof of the agreement. Therefore, to approve a marriage in Scotland, it is enough to have a witness in front of whom the agreement was made. Hence the well-known custom in England of leaving for Scotland to perform secret marriages: the first Scottish village beyond the English border (Gretnagreen) served for this purpose; The witness was usually the blacksmith, whose house stood on the edge, first from the border. Abuses from this convenience of entering into secret marriages and from the uncertainty of the legal form reached the point that in Scotland, as Lord Kemble put it, few women could give themselves an account of whether they were legally married or not. Legislation did not begin to limit these abuses in England until 1856, when it was decided that a Scottish marriage would only be valid if the bride and groom had resided in Scotland for at least 21 days before the marriage, as a result of which it became no longer possible to enter into secret marriages in Scotland after having just crossed the border. The importance of church rites in France to this day, not only among ordinary people, but also between educated classes, is most clearly demonstrated by a dispute that arose several years ago among French jurists on the question: whether the refusal of one of the spouses to the other to perform the marriage ceremony according to the rite of the church, as agreed upon between them, can serve as a sufficient reason to recognize the marriage as void. Professor Bressol had an affirmative opinion. Marcade and Thierse objected to him, however, not unconditionally, and finally the chamber of Parisian lawyers accepted the opinion of the famous lawyer Demolomb, which was that the refusal of one of the spouses from church rites can serve as a reason for the legal separation of the spouses (sepavation de corps), for such a refusal undoubtedly belongs to the number of grave insults (injuria gravis). See Revue de législation. 1846 T. III and Demolombe, Cours de Droit civil. In the decision in the Efimova case, the Senate (Cass. decision 1869, No. 292) recognized that marriage cannot be conditioned by any obligation, therefore, cannot be counted among the contracts covered by Articles 220 and 221. on obligations committed by minors. According to church rules, it is forbidden to marry: on the Nativity Fast - from November 14 to January 6, from the week of the Meat to St. Thomas, from the Week of All Saints to St. Peter's Day, on the Dormition Fast from August 1 to 15, and in general on Vespers on Wednesday and Friday (i.e. on Tuesday and Thursday after Vespers). Curious in this regard is the circular of the Italian Minister of Justice Viliani to citizens. authorities, on Sept. 1874 The government admits that with the introduction of a new law on compulsory civil marriage, those entering into marriage in large numbers avoid this form, being content with the church rite, despite the fact that the civil form alone gives marriage the meaning of legal. Thus, it turns out that in Italy there is a huge number of marriages performed in recent years - up to 120,000, concluded with marital intent, but illegal in a legal sense, with all the consequences. This phenomenon could not but cause concern in the government, and the government itself, searching for the reasons for evading the civil form, admits that the main reasons were the following: “the cost of stamp paper, the inconvenience of going to distant offices to register citizens. acts, sometimes to the other end of the city, and during office hours, difficult for the working class; the need for many preliminary inquiries, certificates and formalities and paper correspondence.” The Minister confirms to the prefects to take care of the possible elimination of all such inconveniences. Prussian law, while facilitating divorce, does not allow this measure. As for the Roman Catholic church law, it should be noted that church jurisdiction, while denying divorce as a way to dissolve a legal marriage, at the same time widely uses legal reasons for declaring the marriage invalid at the very beginning. The papal discretion in this case alleviates many difficulties, with the help of casuistry applied to need. So, for example, Napoleon’s marriage to Josephine was declared invalid because it was married by the wrong priest, although the wedding was performed at one time by Cardinal Fesch, and, moreover, by order of the pope. From this side, one might say, there is no limit to the legitimate reasons why a Latin court can destroy a marriage. There are Latin verses for memory, in which these reasons are briefly enumerated. All complaints against the decisions of the Synod on divorce cases, in matters relating to divorce, were not accepted for consideration by the State Court. Council (1817, Shchepochkina village). Marriages of schismatics not married in an Orthodox or Edinoverie church were recognized as invalid; this is invalidity before the law, i.e. denial of the legality of marriage, but not separation from cohabitation, for even the illegitimate wives of schismatics of the priestly sect are recognized and recorded as their wives in the police lists. The question of the delimitation of jurisdiction between ecclesiastical and secular courts in matters of marriage law has recently been subject to extensive discussion in the literature, regarding assumptions about reforms on this subject (see Journal of Civil Rights, 1872 and 1873). At the same time, references were made repeatedly to 2 hours of the Civil Course. Rights with indications of incompleteness of presentation. I don’t think it’s superfluous to note that the essential subject of this course is civil law, and not legal proceedings. French law allows the husband to give his wife general authority to manage her estate, with the right of destruction at any moment, but does not allow general authority to alienate (Italian law allows both). When a wife follows her husband into exile of her own free will, the spouses are not separated from each other along the way. Est. link ed. 1890, art. 85, 411. If the exiled convicts at the place of work entered into marriage with each other and the term of work of one of the spouses ended before the other, then the person released from work is obliged to live with the other until the term ends. Ibid., art. 412. In wartime, during the movement of troops, the wives and families of lower ranks are prohibited from following them (Ordinary Land Rules Note 5 to Art. 259). Except in wartime, not only is this not prohibited, but in some cases wives are also given an allowance to go to their husbands. Est. Earth Pov. 490–492. The right of wives and families to live with their husbands in an allocated apartment is assumed even in the absence of their husbands. See Set. Earth Pov. 259 and note. 260, 261. On this subject, Muslim law has established a very complex casuistry, reminiscent of the well-known casuistry of the Jesuit test of conscience. Here are some examples. If a man touches the hair on a woman’s head with his hand - at the root, a forbidden property arises from this, but if he touches it not at the root, then there is no property. If he touches her nails with lust, there is a property. If the touch was not directly to the body, but through the fabric, then there is no property, when the fabric was dense, through which the warmth of the body cannot be felt, and there is a property when warmth could be felt through the fabric, etc. Information about Islamic law, both on this and other subjects, is borrowed from the works of Baron Tornau: Exposition of the principles of Muslim legislation. St. Petersburg 1850 and his: Muslim law. St. Petersburg 1866; Baillie. Diqest of Moohumeddan Law. London. 1865. The concept of the legality of birth and the recognition of exclusively legitimate children born in a legal marriage is not one of the ancient provisions in Western legislation. The latest research has proven that the old monuments of German and Scandinavian law do not strictly distinguish between legitimate children and those born out of wedlock (only children born from slaves clearly differ in rights). In all likelihood, the Roman concept of the legal relationship of an illegitimate to one mother, and not to the father, entered legislation through church teaching and canon law (see Wilde - von den unechten Kindern. Tübingen. 1855). It is worth noting that in our country the difference between legitimate and illegitimate children was clearly stated by civil law no earlier than in the Code. In 1348 art. Est. Court. Gr. This rule is repeated in a new edition with the following change: “The husband is obliged to prove that he was separated from his wife during the entire time during which the conception of the baby can be attributed.” It is impossible not to notice that the previous edition was much more definitive. In general, the decrees repeatedly expressed the rule: “Do not give strength to the dangerous example of denying the legitimate birth of children after the death of their parents.” See Decrees of July 21, 1778, on the Kostyurin case; November 4, 1786, in the Arsenyev case; 1802 July 12 and 1831 May 13. Confession will be required - this is the expression of Art. 464. Zach. Court. Citizen not entirely accurate, because, according to general law, the court cannot demand or force a confession. If the matter is not about the legality of birth, but about inclusion in class rights by birth, the decisive moment is recognized in other cases as the minute of conception, in the interests of the born person. Among the Romans, when it came to classifying a person by birth as free or unfree, to a higher or lower state, when there was a change in the state of the parents, the decisive moment was to decide one or the other, depending on what was more beneficial for the baby. Thus, if the mother at the moment of birth found herself deprived of the civil rights that she had at conception, the baby should not suffer from this change. The son of a senator, conceived in a legal marriage, did not lose the advantages associated with birth, even if at the moment of birth the father was no longer alive or found himself deprived of his former dignity. On the contrary, children conceived in an illegal marriage received the right according to the time of birth in a legal marriage. The conceived baby was given the rights to the inheritance that opened before birth. In our country, in general, a child receives the class rights of a parent to the extent that his child can be recognized as legitimate, therefore, by birth. In only one case, for the benefit of the baby, the law turns to the moment of conception: namely, if the child was conceived when the father enjoyed full civil rights, and was born when the father was deprived of the rights of fortune. The condition of the baby is determined by the minute of conception (IX volume of the Holy Law, art. 11). Children conceived, but not yet born during the life of the father, are not excluded from the rights to his inheritance, on an equal basis with those who were alive at his death (Zak. Civil. 1106). In 1347 art. Est. Court. Citizen edition of the given 462 art. Zach. Court. Citizen changed significantly. It is precisely said: the right to prove the legality of birth (whose?) does not cease with any limitation. Then the other half of the article, limiting the right of heirs, was completely discarded. In this form, 1347 Art. means, in its literal sense, that limitation does not extend not only to the right to prove the legality of one’s birth, but also to the right of all interested persons to prove the legality of someone else’s birth. Even in the acts of the Moscow Council of 1666 there is a rule about the establishment of metric records. A new order to keep registers of parishes followed in 1722. From that time on, they were actually established, but were not maintained correctly, and only in 1775 were they recognized as reliable certificates of marriages (P.S.Z. 1775, Aug. 5, No. 14, 356; 1779, Nov. 23, No. 14, 948). Before the establishment of metric books, we did not have special acts that would certify legal birth. This means that a reference to witnesses can only serve as additional evidence on this subject, and not as independent evidence. In such cases, French law requires that there must be some written basis of evidence (commencement de preuve par écrit). In addition to the acts named in Art. 459 Zak. Court. Civil, as evidence, as can be seen from court decisions, all kinds of written evidence are accepted, such as: family lists, petitions, court papers, contracts, private correspondence, etc. (cf. Sat. Sen. decision vol. 1, no. 675). Regardless of the metric registration, for Mohammedans, in some cases, a certificate of Mohammedan spiritual rule is accepted as proof of the legitimacy of birth. T. IX. 75, approx. So, the legality of birth can be proven without a birth certificate; a son can be recognized as legitimate and approved in rights depending on the legality of birth (for example, in hereditary), even if there was no direct confirmation of the event of birth from a legal marriage. Therefore, a son born from the marriage of Old Believers, who did not have a metric register, can be recognized in the rights of legal birth if he was listed in the estate and family acts and was recognized as a legitimate son (cf. Cass. decision 1869, No. 1071, 1871, No. 709). In the law of 1874, among the proofs of birth from marriage recorded in the register of births, personal lists of schismatics are mentioned; These lists were canceled by law on May 3, 1883 (P.S.Z. No. 1545), so now they can serve as evidence only for the previous time preceding the publication of the above law. See art. Mullova in Zh. M. Yu. 1861., No. 7. However, one should not conclude from this silence that parental authority is denied in this case. Court. practice recognizes this power. Thus, for example, the right of a mother to be the guardian of an illegitimate child is recognized (See the decision of the General Assembly of September 1868, according to the village of Gristop). Before the latest transformations, we had entire classes and ranks in which children, by law, had to enter the same work or service in which their fathers were; This hindered the parental right to raise and train children according to their choice for one or another type of activity. All these restrictions no longer exist. In the Charter of the Colonies (Article 468 of the Prod. 1868) there is a rule that exempts the family from the obligation to follow a colonist resettled by order of society for dissolute behavior. The special right of the guardian parent regarding noble elections is mentioned in Vol. IX, Art. 115. The Lithuanian statute (rule of the Chernigov and Poltava provinces, Zak. Gr. 167) lists 7 legal reasons for which parents are given to disown their children. In the Chernigov and Poltava provinces, the father is obliged to answer in satisfaction for the insults made by unseparated children, and the mother in the case when, after the death of the father, he owns his own estate or the estate recorded from the husband. An historical study of this subject and a statement of foreign rulings will be found in Arch. für die Civil. Praxis, 1862. Art. Hermann: Ueber das Recht der Namensführung und der Namensänderung. According to French law, a woman is excluded from the title of guardian, except for mother, grandmother, etc. Italian law adds an unmarried sister to the exception. Before the publication of the Code of Laws. 1857 Wards and Sire. Courts were classified as judicial places and had judicial power. According to the institution on the provinces, it was supposed to establish provincial guardianships in provincial cities as the 2nd instance of guardianship supervision, but this assumption, which was repeatedly renewed, did not come true. On April 27, 1864, the State Court held its opinion. Council, in which one age of a minor is established up to 21 years and one guardianship, without guardianship, so that this opinion, without at the same time entering into force of law, serves as the basis for the work of the Commission of the Ministry of Internal Affairs to draw up a guardianship charter. In the first edition, I allowed the possibility for a third-party testator (not the father or mother) to appoint a guardian not to the person of the minor, but to the estate that is bequeathed to him. In view of the objection made to me (J. Gr. Pr. 1871, No. 2), I must abandon this opinion and admit that although a third party can appoint a guardian to the property in this case, this appointment cannot contradict the legal parental right; in the absence of parents, it has no legal meaning, i.e. mandatory for guardianship. – For the guardianship rights of parents, see also § 22. From the Senate practice it is clear that the reasons for inability to provide guardianship were recognized: the foreign citizenship of the guardian, his affiliation with the schism, when the minor is of the Orthodox faith. There are decisions that express that the position of a guardian is incompatible with entering into an agreement with a person under guardianship; on this basis, bills of exchange issued to a trustee of minors under his guardianship were invalidated (Collected Decision on Guardianship No. 124); it was also recognized that the law does not allow guardians to borrow money from minors entrusted to their care (ibid., No. 137). Given the uncertainty of the law in practice, questions often arise about the right of the guardian to sell timber from the estate for felling, to lease land for long periods, etc. These questions are resolved in various ways; but according to the letter of the law, such actions are not supposed to require the permission of a higher or immediate guardianship authority. Some guardians, wanting to protect themselves from possible liability, ask for permission from guardianship; others do not consider it necessary and are often accused of abuse of power. Guardians and trustees participate on behalf of minors and minors in land elections. uchr. (Vol. II, ed. 1892, Regulations of the Land Institution, Art. 18). 95–97 art. Floor. Collection Citizen they call annual income the net profit from an estate, but it is hardly fair to attach a general meaning to this special rule, taken from the instructions for the inventory of immovable estates; moreover, the Regulations on inventories were published in 1849, and 284 art. Zach. Gr. taken from a decree issued in 1775. According to the Charter of Colonies (Article 153), the guardian, upon surrender of guardianship, receives 1/4 of the movable property acquired for management as compensation. The Senate recognized that guardianship may deprive the guardian of 5% of the remuneration if his orders resulted in damage to the property of a minor (Sb. Sen. decision vol. II, no. 826). It is difficult to determine in advance in general terms sufficient reasons for the removal of a guardian: this is not a matter of judicial consideration, but of administrative consideration. As an example, we point to such a case. Someone bequeathed a house and capital of 20,000 rubles to the mother of a minor, and 20,000 rubles to the minors themselves. so that their upbringing and maintenance would come from the income from the property bequeathed to the mother; but if this source were not sufficient, then interest on the minors’ capital should be used for this purpose. The mother, having been appointed guardian of the children, without submitting reports for 2 years, in the third year showed in the report 3,000 rubles, which she had spent on minors from her own money, and demanded reimbursement of this amount from interest on the children's capital. In such circumstances, the mother was recognized as an unreliable guardian when it turned out that at the age of 2 she had already squandered the property personally bequeathed to her and began to demand the children’s money. Proceedings Com. about volost courts. T. V. 398. VI. 349. In addition to this publication about peasant customs regarding guardianship and about family councils among peasants, see the book by Efimenko: Legal customs of Arkhang.