scholarly journals LEGAL REGULATION OF DIVORCE: HISTORICAL DEVELOPMENT AND MODERN PRINCIPLES

2021 ◽  
pp. 116-122
Author(s):  
L. Radchenko
Keyword(s):  
Catholic Church ◽  
Family Law ◽  
Family Relations ◽  
Legal Regulation ◽  
Eu Law ◽  
Historical Aspect ◽  
Applicable Law ◽  
Foreign Law ◽  
The Law ◽  
The Moment

The article is devoted to the study of the genesis of legal regulation of the order, conditions and consequences of divorce in its historical aspect, as well as given the current principles of family relations in EU law and foreign law, highlighting the latest trends in divorce relations and outlining the laws of their further consolidation in the family law of Ukraine, formulation of conclusions and proposals aimed at harmonization of national legislation with EU law. The divorce procedure, its conditions and legal consequences are regulated by the legislation of different states in different ways. The regulation of divorce relations is also significantly influenced by national characteristics, traditions, religion and culture. The spread of family relations outside one state necessitates the application of foreign law to regulate such relations. Appropriate conflicts may result from the application of the law of different states regarding the grounds for divorce, the procedure for divorce, as well as the unequal determination of the moment of its dissolution. The article argues that one of the basic principles of Roman private law was the observance of absolute freedom of divorce. However, during the imperial period, and especially with the establishment of Christianity, restrictions were imposed on divorce. The approach to significant restrictions and even prohibitions on divorce has long been observed in the law of European states. Under the influence of the Catholic Church and Christian morality, the recipient law did not allow divorce at all or established restrictions and valid grounds for divorce. Divorce was allowed only as an exception, in the presence of significant circumstances, subject to complicated procedures. Since the second half of the twentieth century, divorce laws have been reformed in many countries, tending to abandon the idea that divorce is a sanction for marital misconduct and moving to the concept that divorce is a statement of a failed marriage. As a result of the reforms, divorces have become more liberalized. The article concludes that the general conflict principle of divorce is the law of citizenship of a spouse or husband (most countries of continental Europe) or the law of the place of residence of the spouses (England, USA and a number of other countries). However, Regulation 1259/2010 provides, in essence, innovative provisions for the choice of the competent legal order in the event of divorce, which enshrines the possibility for spouses to independently choose the applicable law. Keywords: marriage, marital relations, divorce, termination of marriage, EU law, family law.

scholarly journals Inheritance by Contract Complex Institution Legal Problematic: Applicable Law and Proper Jurisdiction Proving Methodology Creation Necessity

2016 ◽  
Vol 2 (5) ◽  
pp. 116-142
Author(s):  
Edward Pilipson
Keyword(s):  
Legal Regulation ◽  
Complex Nature ◽  
Private International Law ◽  
Legal Doctrine ◽  
Inheritance Law ◽  
Applicable Law ◽  
Unique Character ◽  
Foreign Law ◽  
Mandatory Rules ◽  
The Law

Inheritance by contract complex institution contains two principal, essential areas of legal regulation – inheritance law and law of obligations. These spheres have their own unique character and specific legal order of enforcement – under Private International Law, every sphere of legal regulation has its mandatory rules. Also, due to the complex nature of the institution mentioned above, these two spheres are closely related and often intertwined. These circumstances do not permit the application of the rules of inheritance law apart from the rules of the law of obligations. Application of foreign law in the territory of the national state is performed through the prism of the analysis of conflict rules contained in separate laws and in the regulations governing inheritance by contract institution. Due to the complexity of the contract of inheritance, it is necessary to analyze and prove the conflict rules relating to inheritance law as well as to the rules of the law of obligations. Because inheritance by contract institution has not yet been fixed in legal doctrine, it is necessary to develop completely new approach to the proof of the applicable law in respect of this institution. Līgumiskā mantošana ietver divas prioritāra rakstura tiesību jomas – mantojuma tiesības un saistību tiesības. Šīm jomām ir savs unikāls raksturs un īpaša piemērošanas un izpildes kārtība – katrai jomai ir savi saistošie noteikumi. Šīs sfēras ir cieši saistītas un savstarpēji korelētas, un tas nosaka šī institūta sarežģīto un komplekso raksturu. Šie apstākļi neļauj piemērot mantojuma tiesību sastāvdaļas atsevišķi no saistību tiesību sastāvdaļām, tāpēc ir nepieciešams analizēt mantojuma un saistību tiesību normas un pierādīt metodoloģijas izveidošanas nepieciešamību attiecībā uz piemērojamām mantojuma un saistību tiesību normām, kas regulē tieši līgumisko mantošanu. Tā kā līgumiskā mantošana joprojām nav detalizēti pētīta, ir nepieciešams izstrādāt pilnīgi jaunu pieeju piemērojamo tiesību pierādīšanai attiecībā uz minēto institūtu.

Оскарження рішень, дій чи бездіяльності публічної адміністрації як вид гарантії забезпечення надання публічних послуг у судовому порядку

2019 ◽  
Vol 24 ◽  
Author(s):  
О. В. Бойко
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Public Services ◽  
Legal Regulation ◽  
Scientific Article ◽  
Preliminary Stage ◽  
The Law ◽  
The Moment ◽  
Court Hearing

The scientific article identifies the peculiarities of appealing the decisions, actions or omissions of public administration subjects on the provision of public services at the stage of initiation and preparation for judicial review of an administrative case. The author substantiates the feasibility of improving the legal regulation of the procedure for holding a preliminary hearing before the court hearing of the case. In particular, it is considered expedient to set the terms of the preparatory meeting from the moment of receipt of the administrative claim, as well as to determine the cases when the parties are not reconciled.It is established that the preliminary stage of the court hearing often ends with the conclusion of the preliminary proceedings and the appointment of the case to trial in the field of public services. This is not against the law. However, it should be borne in mind that in accordance with Art. 121 of the CAS of Ukraine such a decision is delivered by the consequences of preparatory proceedings, not the previous court hearing. Obviously, preparatory proceedings are not limited to, and do not always end at, a previous court hearing. Preparation may continue after a preliminary hearing. Therefore, the decision to close the preliminary proceedings and assign the case to trial after the consequences of the previous court hearing can only be made if the judge has taken all the measures necessary to hear the case. If during a previous court hearing in the field of public services, to which all persons involved in the case have arrived, the issues necessary for its consideration have been resolved, then, with the written consent of these persons, a court hearing may be initiated on the same day. In this case, the termination order is also delivered.

scholarly journals The principle of self-determination in the family law through history and today

2004 ◽  
pp. 159-178
Author(s):  
Gordana Kovacek-Stanic
Keyword(s):  
Parental Care ◽  
Family Law ◽  
Family Relations ◽  
Historical Context ◽  
Civil Code ◽  
Self Determination ◽  
200Th Anniversary ◽  
Parents And Children ◽  
The Family ◽  
The Moment

In the jubilee year 2004, Serbia marks the 200th anniversary of The First Serbian Uprising, structuring of modern Serbian state and its legal system comparatively speaking, France marks the 200th anniversary of passing the French Civil Code, one of the most significant civil codifications in the 19th century. It was an occasion to study certain institutions of family law through history and today. The used approach is modern, we studied the ways how the principle of self-determination influenced the family-legal solutions today, and we investigated if one could talk about the effect of this principle in the historical sense, too. The principle of self-determination implies the possibility for the subjects of family-legal relations to arrange their own relations themselves ? both the partner and parent relations. However, this principle undergoes significant limitations in the family law because the family relations are personal relations by character, as well as because of the need to protect the weaker participant, both the weaker partner or a child who needs protection stemming from his/her very status. Within marriage law, the principle of self-determination of the spouses (extramarital partners) is, among other things, made concrete through the possibility for an agreement about the effects of marriage (extramarital union), then through the possibility of agreed divorce, while the procedure of mediation in the marriage litigation contributes to the realization of the mentioned principle. As for the effects of marriage (extramarital union), the paper particularly discusses property relations, that is the marriage property contract, because it is at the moment a current issue in our domestic law. Within the relations between parents and children, the concretization of the principle of self-determination in parental care is significant, particularly in the situations when the relations between the parents were disturbed and resulted in a separation or a divorce with the joint parental care (application of the parental right). All institutions are analyzed in the positive law, in the historical context (solutions from the Serbian Civil Code the former Hungarian Law), and viewed comparatively in the European legal systems of the east and west European countries.

scholarly journals BANKRUPTCY ESTATE OF THE DEBTOR’S SPOUSE: AN INTERSECTORAL ASPECT

2020 ◽  
pp. 26-30
Author(s):  
А.S. Salimov ◽  
S.V. Voronina
Keyword(s):  
Common Property ◽  
Family Law ◽  
Family Relations ◽  
Civil Law ◽  
Legal Regulation ◽  
Bankruptcy Law ◽  
Joint Ownership ◽  
The Common

The bankruptcy estate of the debtor spouse is all property belonging to him both on the basis ofindividual and joint ownership, including unfulfilled property obligations. The composition of the propertyof spouses is determined by the rules of family law, taking into account the legal regulation of certain typesof property, which requires special attention when forming the bankruptcy estate of the debtor spouse. Thebankruptcy estate may include the property of a citizen, making up his share in the total property, which maybe levied in accordance with civil law, family law. Family relations are built on the principle of community,which affects the implementation of bankruptcy law. To foreclose on the share of the debtor spouse, it isnecessary to separate the share of the debtor spouse from the common property, while the bankruptcy lawallows the sale of common property with the subsequent payment of funds to the debtor’s spouse.

MATRIMONIAL PROPERTY RELATIONS IN THE INTERNATIONAL FAMILY LAW: METHODOLOGY OF REGULATION

2017 ◽  
Author(s):  
Yevhen Tkachenko ◽  
Keyword(s):  
Social Relations ◽  
Social Life ◽  
Family Law ◽  
Family Relations ◽  
Self Regulation ◽  
Essential Element ◽  
Legal Regulation ◽  
Legal Regime ◽  
Property Relations ◽  
Law Regulation

As a result of this study, the family law regulation of matrimonial property relations was found to have its specific mechanism which is defined as a single system of legal ways and means providing mainly dispositive legal influence on family relations that allows significant influence of individual self-regulation and restrictions of prohibitions. At the present stage of study, this mechanism is considered as a ‘complex’ phenomenon which has several layers. Therefore, different interpretations of the mechanism for family law regulation of matrimonial property relations, derived at various levels, show not only their distinctive but also their common features. Determination of heterogeneous circumstances affecting the matrimonial property relations requires an analysis of the content and legal regulation of the relations related to property ones, since they are influenced by the mechanism for family law regulation of matrimonial property relations. Therefore, the methodology is the most essential element of this mechanism: it reveals the basic legal principles of family law regulation and directly connects legal tools with the objectively determined needs of social life by using the regulatory functions of law. The structure of the methodology of the mechanism for family law regulation of matrimonial property relations includes permits, prohibitions, instructions, incentives, obligations, sanctions and other ways to influence proper relationships. Methods of family law regulation are determined as methods of legal influence on the relevant social relations. They reflect the essence of a particular legal regime of regulation, while serving as a unifying principle which groups the system of family law and other legal phenomena within the institutions of family law. In this sense, the main methods of legal regulation are the method of subordination and the method of coordination. As a result, it is determined that each family law method reflects a special legal regime of regulation and depends on the formation of a specific set of techniques and means of regulation, among which a special place is occupied by general permits and general prohibitions.

scholarly journals Family and Its Place in the Structure of Civil Relationships

2018 ◽  
Vol 50 ◽  
pp. 01238
Author(s):  
Khurshed Nasirov
Keyword(s):  
Property Rights ◽  
Family Law ◽  
Family Relations ◽  
Civil Law ◽  
Legal Regulation ◽  
Cultural Issues ◽  
Specific Nature ◽  
Social Unit ◽  
Independent Family ◽  
The Family

The author studies the place of the family in the structure of family relations. The correlation between civil law and family law in Soviet, Russian and Tajik legal science is considered. According to the author, the family is a social unit of society with the help of which people seek to solve demographic, economic and cultural issues. It is stated that the family is an alliance of persons created on the marriage, kinship, birth and adoption of children, as well as their upbringing. Accordingly, such alliance leads to the development of certain personal non-property and property rights and obligations based not only on mutual interests and concerns, but primarily on the related ties. In this regard, it seems logical that the specific nature of these rights and obligations requires the use of special tools for legal regulation; the content of legal relations arising on their basis is considered to be independent family relations.

scholarly journals Deeply Analysis on French Rules of Conflict of Laws

2019 ◽  
pp. 1-15
Author(s):  
Desiree Roffee Ciss
Keyword(s):  
Social Life ◽  
Legal Issue ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Abstract Rule ◽  
The Law ◽  
Contractual Obligations ◽  
The Moment ◽  
The Individual

The law, in a general way, has the role of regulating life in society. From this same Law, several rights with branches facilitate their explanation and use in our social life to establish order. This being life in society could be seen as a kind of contract to the extent that it would be difficult for the individual to live without maintaining relationships with others. So, from the moment that there is this exchange between individuals there is what we could call contract. As we know, the contract is defined in law as an agreement by which one or more persons agree to one or more other persons to give, do or not to do something. It should also be specified that there are several kinds of contracts, but the one that will be the main focus of our development is the international contract. An international contract is understood to mean this contract, which, unlike the internal contract, presents an element of extraneity, in other words an international character. For example, a contract between two individuals of different nationality. The contract thus concluded, the contracting parties may indeed encounter difficulties that may arise at any time, most often due to non-compliance with the terms of the contract. These problems or disputes are often very difficult to resolve because the parties are from different origins, residing in different countries, or bound by commitments made in a country other than their country of residence, hence the existence of different laws. and the birth of what is called a conflict of laws. This being so, by conflict of laws is meant to be one of the main problems with private international law (the branch of law which deals with the settlement of disputes of private rights having at least an extraneous character). Thus, the question arises as to which law would be applicable in the event of a conflict of laws in the matter of contract, that is, how to choose or determine the applicable law in the course of a dispute with a foreign element? Thus, once the French judge is seized of the dispute, it will be necessary to find the law applicable to the questions of law asked. Assuming that the French judge can apply a foreign law, and that the various foreign laws with links to the litigation have a theoretical vocation to apply, were developed what are called conflict of laws rules which is an abstract rule, indirect (it does not solve the substantive question asked, but only to determine the law competent to resolve this substantive legal issue), and neutral (the substantive solution is not taken into account in the determination of the applicable law). In order to give answers to our questioning, we will focus on how to choose the law applicable to conflict of laws in matters of contract and this, in the light of French law, the Rome Convention of 19 June 1980 and the Rome 1 Regulation on the law applicable to international contractual obligations.

scholarly journals The Evolution of the Legal Regulation of the Separate Living of Spouses under Family Law on Ukrainian Lands

2020 ◽  
pp. 200-206
Author(s):  
Oleh OKSANIUK
Keyword(s):  
Catholic Church ◽  
Family Law ◽  
Roman Catholic ◽  
Legal Regulation ◽  
Civil Code ◽  
Roman Catholic Church ◽  
Scientific Article ◽  
Legal Regime ◽  
Current Form ◽  
Judicial Procedure

The scientific article investigates the historical aspects of the evolution of legislation on the issues of legal regulation of the separate living of spouses that acted in the Ukrainian lands. In particular, on the basis of a study of the main acts of family law that operated in the Ukrainian lands, the author came to the conclusion that in Ukraine for a long time the legal regime of separate living of spouses existed as an alternative to the termination of marriage in accordance with the canonical norms of the Roman Catholic Church, which did not allow the termination of marriage for any reason other than the death of one of the spouses. This legal institute (called ‘weaning from the table and the lodge’) was introduced in 1563 and generally preserved in Ukraine until 1917 for the spouses of Roman Catholic creed. For the first time at the level of secular family legislation, which operated in the Ukrainian lands, the regulation of the institution of marriage separation was carried out by the Galician Civil Code of 1797. The mentioned legal regime was also mentioned by the Austrian Civil Code and the Code of Laws of the Russian Empire, the drafts of the Collection of the Little Russian Rights and the Code of Local Laws of the Western Provinces, but also in the aspect of ‘weaving from the table and lodge’ of Roman Catholic couples. At the same time, the acts of family law of Austria-Hungary provided for a judicial procedure for establishing the regime of separate living of spouses. In its current form, this legal regime was introduced in 1914 for spouses in cases where cohabitation is intolerable due to ill-treatment, abuse, dishonest behaviour, contagious or mental illness. Subsequently, the 1917 marriage decree and the 1919, 1926, and 1969 family codes, adopted during the Ukrainian SSR, did not contain rules on the separation of spouses when regulating divorce. On the other hand, the fact of spousal living was taken into account by the courts during the separation of their property. Subsequently, the institution of marriage separation was returned to the Family law of Ukraine only after the adoption of the current Family Code of Ukraine.

Forms of protection of interests in family law

2021 ◽  
pp. 146-158
Author(s):  
Svitlana Khodak
Keyword(s):  
Family Law ◽  
Family Relations ◽  
Legal Regulation ◽  
Educational Process ◽  
Practical Significance ◽  
Single Type ◽  
Scientific Methods ◽  
Legal Method ◽  
Self Defense ◽  
The Right

Purpose. The purpose of the study is to determine the forms of protection of interests in family law. It is also necessary to disclose the features of forms of protection of interests in family law, and consideration of jurisdictional and non-jurisdictional forms of their protection. Methodology. Among the philosophical, general and special scientific methods used such as is the technical and legal method, which is used in the study of methods and forms of protection of interests in family law. Scientific novelty is that the article states that under the form of protection of interests in Family law should be understood as an internally agreed set of family law-based organizational and other measures carried out within a single type of procedures, agreed on a common goal, aimed at preventing, terminating violations and restoring them, by a special jurisdiction The study further developed the provision that the list of ways to protect family interests should go beyond the Family Code, be open, which determines the possibility of their protection in other ways not prohibited by law. Under the jurisdictional form of protection of interests in family law means e activity of the bodies authorized by the state on protection of family rights and interests of participants of family relations. The bodies that provide such protection include: the court, guardianship authorities, notary and prosecutor. The universality of the judicial form of protection of interests in family law is substantiated. At the same time, an approach has been adopted, according to which not only the violated interest is subject to protection, but also such an interest, which has not been violated at the time of protection in order to prevent violation. A non-jurisdictional form of protection of family interests is a factual action that a subject of family law commits to protect his or her own interest or the interest of another person without recourse to the relevant jurisdictions. Results. The author singles out two ways of exercising the right to self-defense of interest in family law: 1) self-defense of one's interest; 2) self-defense of another person's interest. The article proves the effectiveness of mediation as a jurisdictional form of protection of family interests. Practical significance. The results of the study can be used in lawmaking to improve legislation in the field of legal regulation of the category of interest; in the educational process - in the development of textbooks, teaching materials on the subject "Family Law of Ukraine".

THE EFFECT OF ROME II ON NATIONAL PROCEDURAL LAW

2015 ◽  
Vol 74 (1) ◽  
pp. 37-40 ◽  
Author(s):  
Joshua Folkard
Keyword(s):  
Conflict Of Laws ◽  
Applicable Law ◽  
Procedural Law ◽  
Foreign Law ◽  
Procedural Autonomy ◽  
The Law ◽  
Council Regulation ◽  
Contractual Obligations ◽  
Definition Of ◽  
Court Of Appeal

AT common law, in cases where the substantive claim is governed by foreign law, questions of procedure are nonetheless governed by the lex fori. In the context of damages, although the existence of damage is a question for the lex causae, its quantification and assessment is determined according to the law of the forum (Boys v Chaplin [1971] A.C. 356). The distinction between substance and procedure is preserved by Article 1(3) of Council Regulation (EC) No 864/2007 (“Rome II”) which provides, with certain exceptions, that Rome II “shall not apply to evidence and procedure”. That rule is, however, qualified by Article 15, which requires the law applicable under the Regulation (i.e. “the law applicable to non-contractual obligations”) to govern, inter alia, “the existence, the nature and the assessment of damage or the remedy claimed” (Article 15(c)). The decision of the Court of Appeal in Wall v Mutuelle De Poitiers Assurances [2014] EWCA Civ 138; [2014] 3 All E.R. 340 concerns the definition of “procedure” in Article 1(3) and the meaning of “applicable law” in Article 15(c). It raises the important question of how far Rome II has encroached on the traditional view of national procedural autonomy in the conflict of laws.

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