scholarly journals On the History of the Marriage Contract in Domestic and Foreign Legislation

2021 ◽  
pp. 030-037
Author(s):  
A. V. Lapaeva
Keyword(s):  
Property Rights ◽  
Family Law ◽  
Legal Documents ◽  
Marriage Contract ◽  
Marital Property ◽  
History Of ◽  
Historical Retrospect ◽  
Legitimate Interests ◽  
Russian Law ◽  
The Right

The genesis of the marriage contract in domestic and foreign legislation is studied. The main stages of the emergence and development of the marriage contract in various countries are outlined. A parallel is drawn between national and international family law in historical retrospect. The article analyzes the procedure and conditions for concluding a marriage contract in various countries. It is proved that the marriage contract is the optimal tool in protecting the property rights and interests of married persons. It is established that the marriage contract is not new for Russian law; it has a fairly long, centuries-old history. According to the evidence of preserved legal documents, until 1917, the marriage contract was a familiar and convenient legal instrument for protecting the rights and legitimate interests of spouses. In modern Russian law, the legislator tried to take into account not only the peculiarities of the historical formation of the institution of the marriage contract in Russia, but also the experience of foreign legislation, giving the spouses the right to establish the regime of marital property at their discretion.

scholarly journals DEFINITION OF THE CONCEPT OF MARRIAGE CONTRACT: NEW APPROACHES

2021 ◽  
pp. 58-62
Author(s):  
O. Mykhalniuk
Keyword(s):  
Property Rights ◽  
Common Property ◽  
Family Law ◽  
Family Relations ◽  
Legal Regime ◽  
Judicial Practice ◽  
Marriage Contract ◽  
Marital Property ◽  
Separate Property ◽  
Definition Of

The purpose of the article is to study current issues of regulation of family relations under the marriage contract, to define the concept and content of the marriage contract in the light of new trends in notarial and judicial practice of Ukraine. For this research a number of general scientific and specific legal methods have been used, namely analysis of the legal issues, judicial categories, applied comparative-legal, systematic- structural, formal-logical methods and etc.. The author proposes a systematic approach to the study of problems of changing legal regimes of marital property under the marriage contract. It is based on the author's understanding of the concept and the legal nature of "legal property regime" in science of civil and family law of Ukraine, and analysis of the existing judicial practice within mentioned-above sphere. The notion "change the legal regime of marital property" and "change of property types" are not identical in content. The change of the legal regime of the spouses' property does not provide for the transfer of ownership of this property. It is proved that the legal regime of the property of spouses under a marriage contract can be changed only regarding the property, which will be acquired in the future. The effect of legal regime of separate property on the property, which was acquired by spouses in marriage (common property) is in contradiction with part 5, article 93 of the Civil Code of Ukraine. In this case there is actually a transfer of ownership. It is proposed to expand the range of legal relations that can be regulated by a marriage contract, namely: to include not only property but also personal non-property relations of brides and spouses. The author also proposes the definition of marriage contract as a legal instrument between spouses or fiancé and fiancée, which determines their property and personal none-property rights and obligations, in particular, regarding the establishment (change) of legal regime of future property, the regulation of its usage and dispossession, division of revenues and expenses and their property and personal non-property rights as parents in marriage and (or) in case of divorce. Keywords: family law, marriage contract, legal regime of spouses' property, joint common ownership, joint partial ownership, regime of separate property of spouses, regime of common property of spouses.

scholarly journals Marital Agreements in Vietnam from 1858 until Now

DÍKÉ ◽  
2021 ◽  
Vol 5 (1) ◽  
pp. 150-161
Author(s):  
NGUYỄN THỊ MỸ Linh
Keyword(s):  
Family Law ◽  
European Countries ◽  
Equal Rights ◽  
Marriage And Family ◽  
Marriage Contract ◽  
Marital Property ◽  
History Of ◽  
Property Regime

The institution of prenuptial agreement is a founder of contractual matrimonial property regime. The possibility of concluding a marriage contract contributes to ensuring the equal rights of the spouses, as they are free to agree on their pre-marital property.  Recognizing the necessity of the contractual freedom in family law, the 2014 Act on Marriage and Family of Vietnam allows couples to choose between the statutory property regime and the agreed property regime. This article presents the history of the institution of marriage agreement in Vietnam, also with regard to the development of law in European countries.  

Intergenerational Wealth Transfer and the Need to Revive and Metamorphose the Israeli Estate Tax

2014 ◽  
Vol 8 (1) ◽  
pp. 59-101 ◽  
Author(s):  
Daphna Hacker
Keyword(s):  
Social Justice ◽  
Property Rights ◽  
Wealth Transfer ◽  
Estate Tax ◽  
Inheritance Tax ◽  
History Of ◽  
The Subject ◽  
The Rich ◽  
The Right ◽  
The Needy

Abstract This article suggests enacting an accession tax instead of the estate duty – which was repealed in Israel in 1981. This suggestion evolves from historical and normative explorations of the tension between perceptions of familial intergenerational property rights and justifications for the “death tax,” as termed by its opponents, i.e., estate and inheritance tax. First, the Article explores this tension as expressed in the history of the Israeli Estate Duty Law. This chronological survey reveals a move from the State’s taken-for-granted interest in revenue justifying the Law’s enactment in 1949; moving on to the “needy widow” and “poor orphan” in whose name the tax was attacked during the years 1959–1964, continuing to the abolition of the tax in 1981 in the name of efficiency and the right of the testator to transfer his wealth to his family, and finally cumulating with the targeting of tycoon dynasties that characterizes the recent calls for reintroducing the tax. Next, based on the rich literature on the subject, the Article maps the arguments for and against intergenerational wealth transfer taxation, placing the Israeli case in larger philosophical, political, and pragmatic contexts. Lastly, it associates the ideas of accession tax and “social inheritance” with inspirational sources for rethinking a realistic wealth transfer taxation to bridge the gap between notions of intergenerational familial rights and intergenerational social justice.

scholarly journals The Institute of Guardianship in Muslim Family Law in the Early Middle Ages

2018 ◽  
pp. 29-36
Author(s):  
M. O. Dadashev
Keyword(s):  
Property Rights ◽  
Middle Ages ◽  
Family Law ◽  
Financial Economic ◽  
Early Middle Ages ◽  
Rights Of The Child ◽  
The Status ◽  
Definition Of ◽  
The Right ◽  
Muslim Family

The article deals with the rights of the child and parents in the Muslim family law of the early Middle Ages and its formation in the 8th-10th centuries. The key rights of the child were determined and explained: the right to life, the right to naming, the right to nafaka-the right to financial support-the right to the awareness of his or her genealogy, the right to breastfeeding and the right to up-bringing (al-hidana). In addition, the article provides for the following classifications of the rights in question: basic, financial-economic, religious-ethical. Also, the author considers the issue of prohibition of adoption and gives the definition of an orphan (jatim) under Muslim family law, elucidates peculiarities of the status of orphans, the mechanism for protecting property rights of orphans, rights and duties of guardians with respect of orphans and their property, powers of the kadia (judge) regarding the issue of protecting the rights of orphans, types of guardianship. The reasons and procedure for deprivation of guardianship are also examined. In addition, the author considers parental property rights regarding children.

scholarly journals Stipulation of Rights in the Practice of Nikah Al-Khitbah According to the Fuqaha’ and the Islamic Family Law in Malaysia (Penetapan Syarat di dalam amalan Nikah Khitbah menurut Fuqaha’ dan Undang-Undang Keluarga Islam di Malaysia)

2020 ◽  
Vol 17 (1) ◽  
pp. 314-331
Author(s):  
Miszairi Sitiris ◽  
Mustafa bin Mat Jubri @ Shamsuddin ◽  
Mohd Afandi Bin Awang Hamat
Keyword(s):  
University Students ◽  
Sexual Intercourse ◽  
Financial Constraints ◽  
Analytical Study ◽  
Family Law ◽  
Legal Texts ◽  
Marriage Contract ◽  
Islamic Family Law ◽  
The Law ◽  
The Right

Nikahal-khitbah or popularly known as nikah gantung became a choice of a handful of teenagers especially among university students in Malaysia due to financial constraints and educational reason. Such type of wedding practice raises a number of questions related to juristic issues. This is because the practice of Nikahal-khitbah involves establishing some limitation of rights that violate the purpose or intent of marriage. Among others, the spouses agree to defer some of their rights such as declining the right of nafaqah and the right of sexual intercourse which are against the original purpose (muqtada aqd) of marriage contract. This paper aims to study the opinions of jurists (FuqahÉ’) regarding such limitation or agreement in marriage contract and their validity according to the Islamic Family Law in Malaysia. This paper relies on analytical study in discussing the opinions of the Fuqaha’ and understanding the legal texts of the law related to the matter. This study found that marriage practice through nikah al-khitbah is valid according to the majority views of FuqahÉ’. Islamic family laws in Malaysia do not deny the validity of such marriage practices although there are some legal effects on the limitation of marriage rights.           Keywords: Agreement in marriage contract, nikah al-khitbah, permission by the wali, Islamic Family Law in Malaysia. Abstrak Nikah al-khitbah atau lebih dikenali dengan nikah gantung menjadi pilihan segelintir remaja terutamanya di kalangan pelajar universiti di Malaysia atas faktor kekangan kewangan serta pelajaran. Amalan pernikahan ini menimbulkan beberapa pertanyaan berkaitan hukum fiqh. Ini adalah kerana di dalam amalan pernikahan secara nikah al-khitbah melibatkan penetapan beberapa syarat tertentu yang menyalahi maksud serta tujuan pernikahan. Antaranya, pasangan suami isteri bersetuju untuk melepaskan hak mereka terhadap pasangan mereka, iaitu hak mendapat nafaqah dan hak melakukan hubungan kelamin, yang mana ianya bercanggah dengan matlamat asal atau muqtada akad nikah. Objektif kertas kerja ini adalah untuk mengkaji pandangan para Fuqaha’ terhadap pensyaratan atau perjanjian sebegitu di dalam akad nikah dan keterikatannya menurut Undang-Undang Keluarga Islam di Malaysia. Kertas kerja ini menggunakan kaedah analis di dalam membincangkan pandangan Fuqaha’ dan di dalam memahami peruntukan undang-undang berkaitan dengan perkara tersebut. Kajian ini mendapati bahawa amalan perkahwinan secara nikah al-khitbah adalah sah menurut pandangan majoriti FuqahÉ’. Undang-Undang Keluarga Islam di Malaysia tidak menafikan kesahan amalan pernikahan tersebut walaupun terdapat beberapa kesan undang-undang terhadap syarat yang ditetapkan.            Kata Kunci: Pensyaratan di dalam akad nikah, nikah al-khitbah, izin wali, Undang-Undang Keluarga Islam di Malaysia.  

scholarly journals Prosedur Pencatatan Perkawinan dan Perceraian di Negara Indonesia dan Malaysia Perspektif Hukum Islam

2017 ◽  
Vol 1 (1) ◽  
pp. 87-99
Author(s):  
Fahmi Basyar
Keyword(s):  
20Th Century ◽  
Family Law ◽  
South East Asia ◽  
Islamic World ◽  
Existing Problems ◽  
The Family ◽  
The Status ◽  
History Of ◽  
Muslim Majority ◽  
The Right

One phenomenon that emerged in the Islamic world in the 20th century is the family law renewal efforts undertaken by countries with Muslim majority. This was done in response to the dynamic development of society life. There are at least three points that is the objective of family law renewal in the Islamic world, as a law unification effort, raising the status of female, and responding to developments and demands to provide solutions to existing problems. A review of Act Number 1 in 1974 "named this law as a form of unification that is unique with respect fully the variation based on religion and belief to God, besides that unification aims to complement what is not regulated by religion, because in that matter, the state has the right to set it in accordance with the developments and the demands. From the aspect of the history of the Islamic family law renewal in South East Asia spearheaded by Malaysia. It is the first country that has been undertaking the renewal effort, with the birth of Mohammad Marriage Ordinance Number 5 in 1880 in the countries of the straits.

The Evolution of the Right to Property in India: From a Law and Development Perspective

2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Rashmi Venkatesan
Keyword(s):  
Property Rights ◽  
Private Property ◽  
Developmental State ◽  
Alternative Interpretation ◽  
Law And Development ◽  
History Of ◽  
Institutional Conflict ◽  
Development Literature ◽  
The Right ◽  
Development Perspective

AbstractProperty rights are contentious in any jurisdiction. But the right to property in India, adopted as a fundamental right in Article 31 of the Constitution of the India, 1950 (“Article”), has had a particularly tumultuous legal and political history. It holds the distinction of being the second most debated Article in the Constituent Assembly, the most amended provision of the Constitution and the only fundamental right to ever be deleted. The history of the Article is commonly understood as arising from an ideological institutional conflict between a Parliament in pursuit of socialism and a judiciary safeguarding individual freedoms. However, looking at the Article and its initial amendments from a “law and development” perspective provides a critique of the current narrative of “conflict” and offers an alternative interpretation of the history of Article 31. The paper argues that rather than arising from the pursuit of either authoritarian socialist planning or an egalitarian social revolution, the travails of the Article came in the context of India’s quest for economic modernity through a process of “passive revolution”. The powers of eminent domain reinforced in the Article empowered the state to modernise economic relations in industry and agriculture by restructuring a semi-feudal pre-capitalist property rights regime established during colonialism along productive capitalist lines. In this process, the Article helped to consolidate the powers of the developmental state in the domain of economic policy; forged the relationship between state, market and the individual; and helped shape the regime of private property rights in India. Understanding the evolution of the fundamental right to property in India therefore, not only tells a key part of India’s development story but also contributes to the “law and development” literature by assimilating diverse historical experiences within its framework, which, as critics have long argued, tends to have a strong Eurocentric bias.

scholarly journals Trajectories of Women’s Property Rights in India: A Reading of the Hindu Code Bill

2020 ◽  
Vol 12 (1) ◽  
pp. 82-88
Author(s):  
Komal Rajak
Keyword(s):  
Property Rights ◽  
Women's Rights ◽  
The State ◽  
Colonial Period ◽  
Clear Picture ◽  
Women’S Rights ◽  
Patriarchal Society ◽  
History Of ◽  
The Right

The right to property is especially sacrosanct since the state of financial deficit renders women’s condition very much pathetic in a patriarchal society. In order to get a clear picture of women’s property rights in a caste based patriarchal society like India, here, the Hindu Code Bill is taken into consideration as a major plot because the bill has a history of egalitarian dialogue and had been initiated as an effort to make an egalitarian structure, wherein women would be enjoying property rights as equal to men. This article deals with the trajectories of women’s property rights in India after the introduction of the Hindu Code Bill. So, the focus area of the study is on women’s rights in ancient Indian laws and their development in modern laws since the colonial period to the Hindu Code Bill.

scholarly journals Research of court evidence of the time of Kievan Rus accomplished by professor O. I. Paliumbetskyi (1811-1897)

2018 ◽  
Vol 69 (2) ◽  
pp. 23-28
Author(s):  
V. A. Grechenko
Keyword(s):  
Criminal Law ◽  
Scientific Work ◽  
Judicial Process ◽  
Witness Testimony ◽  
Legal Proceedings ◽  
Old Russian ◽  
German Legislation ◽  
History Of ◽  
Russian Law ◽  
The Right

The objective of the article is to highlight the scientific work of Professor O. I. Paliumbetskyi in the field of the history of Old Russian law. This objective is specified in the following tasks: to show how the witnesses testimonies were evaluated by scholars; what significance he gave to probations in the system of court evidence of the time of Kievan Rus; where he saw the peculiarities of the Russian legislation regarding court evidence in comparison with the German one. The scientific novelty of the article is the fact that it first reveals the essence of the scientific contribution of O. I. Paliumbetskyi to the study of the judicial process of the Kievan Rus period. The author has demonstrated what kind of court evidence of this time he considered the basic, in particular, the author has revealed his understanding of the value of witness testimony (including outcomes and obituaries), probations and oaths. The scholar has stressed that the development of justice largely depended on the formation of statehood in Russia – there was the evolution of the legal process with its genesis. O. I. Paliumbetskyi drew attention to the fact that the distinctive feature of the most ancient laws of many peoples was the identity of private and criminal law, according to which all decisions regarding private relations between individuals were at the same time criminal law, and certain punishment was provided for their violation. The researcher has shown that the testimony of witnesses in Old Russian law served as the basis of the whole system, and all other evidence was related to it. Considering the significance of the oath in legal proceedings of that period, O. I. Paliumbetskyi noted that the right to prove by the oath in the old Russian laws equally belonged to both the indictor and the accused. The first used it when he was not able to provide any evidence, even imperfect, and the latter used the oath as a mean of purging from the evidence against him. The scholar pointed out that the fight between the parties, according to the Russian law, was used in the absence of evidence of a plaintiff and, moreover, served as evidence for a defendant, who could replace it with other means of defense, except for the oath. O. I. Paliumbetskyi came to the conclusion that the influence of German legislation on the Old Russian one in relation to the system of court evidence was insignificant.

scholarly journals On the protection of property rights of minors

2020 ◽  
Vol 2020 (1) ◽  
pp. 76-80
Author(s):  
Svetlana Ignat'eva
Keyword(s):  
Property Rights ◽  
Family Law ◽  
Legal Regulation ◽  
Entrepreneurial Activity ◽  
Legal Capacity ◽  
Rights Of The Child ◽  
Legitimate Interests ◽  
Property Inheritance ◽  
Entrepreneurial Activities ◽  
A Minor

Examines the existing in Russia ways to protect the rights and legitimate interests of minors in civil and family law. The practice of applying the norms of modern civil and family law when juveniles exercise their property rights is analyzed. We consider the conditions under which the protection if the rights of minors is possible both within the framework of protection and protection of property, inheritance rights of the child, rights to alimony obligations. The rights of the child to the occupied premises are considered. Various interpretations of the legal regime of property acquired for a child are investigated. Measures aimed at exercising proper control over the procedure for spending alimony of parents with whom a minor child lives are determined. The features of the legal regulation of entrepreneurial activity with the participation of minors are examined, and the issues of legal capacity and legal capacity of a minor who is an individual entrepreneur are studied. The problems and controversial moments that arise in practice when carrying out entrepreneurial activities of minors who do not have full legal capacity are identified. Discusses discussion questions regarding the age at which a citizen has the opportunity to conduct business. In this regard, a number of changes and amendments to the legislation are proposed.

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