Перевод в сфере семейного права

лицами, уже имеющими детей и даже признание усыновления недействительным в случае последующего рождения в семье ребенка.

4.Россия следует подходу стран континентального права: со ст. 165 СК РФ усыновление в России иностранными гражданами российских детей производится в соответствии с законодательством государства, гражданином которого является

усыновитель. Если иностранный усыновитель состоит в браке с российским гражданином, то усыновление российского ребенка производится в порядке,

установленном для граждан РФ. В некоторых договорах о правовой помощи по гражданским и семейным делам усыновление может регулироваться также законодательством государства, в котором усыновитель имеет свое постоянное

местожительство.

5.Однако во всяком случае при международном усыновлении должны соблюдаться требования ст. 124-133 СК РФ : 1) усыновление допускается в отношении несовершеннолетних детей и только в их интересах; 2) усыновление братьев и сестер разными лицами допускается только в случаях, когда усыновление отвечает интересам детей; 3) усыновление детей иностранцами допускается только в случаях, если не представляется возможным передать этих детей на воспитание в семьи граждан РФ, постоянно проживающих на территории РФ, либо на усыновление родственникам детей независимо от гражданства и места жительства

этих родственников; 4) усыновитель должен соответствовать требованиям, указанным в ст. 127-128 СК РФ.

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APPENDIX 1.

Unit 1.

The Family Code of the Russian Federation

Chapter 3. Conditions and Procedure for Conclusion of Marriage

Article 10. Conclusion of Marriage

1.Marriage shall be concluded in agencies for the registry of acts of civil status.

2.The rights and duties of spouses shall arise from the day of State registration of the conclusion of the marriage in agencies for the registry of acts of civil status.

Article 11. Procedure for Conclusion of Marriage

1.A marriage shall be concluded in the personal presence of the persons entering into marriage upon the expiry of a month from the date of the filing by them of an application in an agency for the registry of acts of civil status. When there are justifiable reasons, an agency for the registry of acts of civil status at the place of State registration of the conclusion of a marriage may authorise the conclusion of the marriage upon the expiry of a month, and also may increase this period, but not by more than one month.

When there are special circumstances (pregnancy, birth of child, direct threat to life of one of the parties, and other special circumstances), the marriage may be concluded on the day of filing the application.

2.State registration of the conclusion of a marriage shall be made in the procedure established for the State registration of acts of civil status.

3.The refusal of an agency for the registry of acts of civil status of the registration of a marriage may be appealed to a court by the persons wishing to enter into marriage (or one of them).

Article 12. Conditions of Conclusion of Marriage

1.In order to conclude a marriage the mutual voluntary consent of the man and woman entering into marriage and the attainment by them of marriage age shall be necessary.

2.Marriage may not be concluded when there are circumstances specified in Article 14 of the present Code.

Article 13. Marriage Age

1.Marriage age shall be established as eighteen years.

2.When there are justifiable reasons, agencies of local self-government at the place of residence of the persons wishing to enter into marriage shall have the right at the request of the said persons to authorise persons who have attained sixteen years of age to enter into marriage [as amended 15 November 1997].

The procedure and conditions, in the presence of which entry into marriage in the form of an exception taking into account special circumstances may be authorised before attainment of the age of sixteen years, may be established by laws of subjects of the Russian Federation.

Article 14. Circumstances Obstructing Conclusion of Marriage

The conclusion of a marriage shall not be permitted between: persons of which one already is in another registered marriage;

near relatives (relatives by direct ascending and descending lines (parents and children, grandfather, grandmother, and grandchildren) full and half (having common father or mother) brothers and sisters);

adoptive and adopted persons;

persons of which one is deemed by a court to lack dispositive legal capacity as a consequence of mental disturbance.

Article 15. Medical Examination of Persons Entering into Marriage

1.The medical examination of persons entering into marriage, and also consulting with regard to medico-genetic questions and questions of family planning, shall be conducted by institutions of the State and municipal public health system at the place of their residence free of charge and only with the consent of the persons entering into marriage.

2.The results of the examination of the person entering into marriage shall constitute a medical secret and may be communicated to the person with whom he intends to conclude a marriage only with the consent of the person who underwent the examination.

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3. If one of the persons entering into marriage concealed from the other person the existence of venereal disease or AIDS infection, the last shall have the right to apply to a court with a demand to deem the marriage to be invalid (Articles 27-30 of the present Code).

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Unit 2.

SECTION VII. APPLICATION OF FAMILY LEGISLATION TO

FAMILY RELATIONS WITH PARTICIPATION OF

FOREIGN CITIZENS AND STATELESS PERSONS

Article 156. Conclusion of Marriage on Territory of Russian Federation

1.The form and procedure for the conclusion of a marriage on the territory of the Russian Federation shall be determined by legislation of the Russian Federation.

2.The conditions of concluding a marriage on the territory of the Russian Federation shall be determined for each of the persons entering into the marriage by legislation of the State of which the person is a citizen at the moment of concluding the marriage in compliance with the requirements of Article 14 of the present Code with respect to the circumstances obstructing the conclusion of a marriage.

3. If the person together with citizenship of a foreign State has citizenship of the Russian Federation, the legislation of the Russian Federation shall apply to the conditions for the conclusion of a marriage. When a person has the citizenship of several foreign States, the legislation of one of these States shall apply at the choice of the particular person.

4. The conditions for concluding a marriage by a stateless person on the territory of the Russian Federation shall be determined by legislation of the State in which this person has a permanent place of residence.

Article 157. Conclusion of Marriages in Diplomatic Representations and Consular Institutions

1.Marriages between citizens of the Russian Federation residing beyond the limits of the territory of the Russian Federation shall be concluded in diplomatic representations or in

consular institutions of the Russian Federation.

2.Marriages between foreign citizens concluded on the territory of the Russian Federation in diplomatic representations and consular institutions of foreign States shall be recognised to be valid in the Russian Federation on conditions of reciprocity if these persons at the moment of concluding the marriage were citizens of the foreign State which appointed the ambassador or consul to the Russian Federation.

Article 158. Recognition of Marriages Concluded Beyond Limits of Territory of Russian Federation

1.Marriages between citizens of the Russian Federation and marriages between citizens of the Russian Federation and foreign citizens or stateless persons concluded beyond the limits of the territory of the Russian Federation in compliance with legislation of the State on whose territory they were concluded shall be deemed to be valid in the Russian Federation if the circumstances obstructing the conclusion of a marriage provided for by Article 14 of the present Code are absent.

2.Marriages between foreign citizens concluded beyond the limits of the territory of the Russian Federation in compliance with legislation of the State on whose territory they were

concluded shall be deemed to be valid in the Russian Federation.

Article 159. Invalidity of Marriage Concluded on Territory of Russian Federation or Beyond Limits of Territory of Russian Federation

The invalidity of a marriage concluded on the territory of the Russian Federation or beyond the limits of the Russian Federation shall be determined by legislation which in accordance with Articles 156 and 158 of the present Code was applied when concluding the marriage.

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Unit 3.

Chapter 4. Termination of Marriage

Article 16. Grounds for Termination of Marriage

1.Marriage shall be terminated as a consequence of death or as a consequence of the declaration by a court of one of the spouses to be deceased.

2.Marriage may be terminated by means of the dissolution thereof upon the application of one or both spouses, and also upon the application of the trustee of a spouse who is deemed by a court to lack dispositive legal capacity.

Article 17. Limitation of Right of Husband to Present Demand Concerning Dissolution of Marriage

A husband shall not have the right without the consent of the wife to initiate a case concerning dissolution of a marriage during pregnancy of the wife and within a year after the birth of the child.

Article 18. Procedure for Dissolution of Marriage

A marriage shall be dissolved in agencies for the registry of acts of civil status, and in the instances provided for by Articles 21-23 of the present Code, in a judicial proceeding.

Article 19. Dissolution of Marriage in Agencies for Registtry of Acts of Civil Status

1.In the event of mutual consent to the dissolution of a marriage of spouses not having common minor children, the marriage shall be dissolved in agencies for the registry of acts of civil status.

2.A marriage shall be dissolved upon the application of one of the spouses irrespective of whether the spouses have common minor children in agencies for the registry of acts of civil status if the other spouse: has been deemed by a court to be missing;

has been deemed by a court to lack dispositive legal capacity;

has been sentenced for the commission of a crime to deprivation of freedom for a term exceeding three years.

3.A marriage shall be dissolved and a certificate concerning the dissolution of marriage shall be issued by the agency for the registry of acts of civil status upon the expiry of a month from the day of filing the application concerning the dissolution of the marriage.

4.The State registration of the dissolution of a marriage shall be made by the agency for the registry of acts of civil status in the procedure established for the State registration of acts of civil status.

Article 20. Consideration of Disputes Arising Between Spouses in Event of Dissolution of Marriage in Agencies for Registry of Acts of Civil Status

Disputes concerning the division of common property of spouses, payment of means for the maintenance of a need spouse lacking the capacity to labour, and also disputes concerning children, arising between spouses, one of whom is deemed by a court to lack dispositive legal capacity or has been convicted for the commission of the crime to deprivation of freedom for a term of exceeding three years (point l9(2)of the present Code) shall be considered in a judicial proceeding irrespective of the dissolution of the marriage in agencies for the registry of acts of civil status.

Article 21. Dissolution of Marriage in Judicial Proceeding

1.A marriage shall be dissolved in a judicial proceeding hen the spouses have common minor children, except for in¬ stances provided for by Article 19(2) of the present Code or in the absence of the consent of one spouse to the dissolution of the marriage.

2.A marriage shall be dissolved in a judicial proceeding also in instances when one of the spouses, despite the absence of objections on his part, evades dissolution of the marriage in an agency for the registry of acts of civil status (refuses to file application, does not appear for State registration of dissolution of the marriage, and others).

Article 22. Dissolution of Marriage in Judicial Proceeding in Absence of Consent of One Spouse to Dissolution of Marriage

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1.A marriage shall be dissolved in a judicial proceeding if it is established by a court that the further joint life of the spouses

and preservation of the family is impossible.

2.When considering a case concerning dissolution of marriage and in the absence of consent of one of the spouses to

dissolution of the marriage, the court shall have the right to take measures to reconcile the spouses and shall have the right to

postpone examination of the case, having designated a period to the spouses for reconciliation within the limits of three months.

The marriage shall be dissolved if measures relating to reconciliation of the spouses proved to be without results and the spouses (or one of them) insists upon dissolution of the marriage.

Article 23. Dissolution of Marriage in Judicial Proceeding in Event of Mutual Consent of Spouses to Dissolution of Marriage

1.In the event of the mutual consent to dissolution of the marriage of spouses having common minor children, and also of spouses specified in Article 21(2) of the present Code, the court shall dissolve the marriage without eliciting the reasons for the divorce. The spouses shall have the right to submit for consideration of the court an agreement concerning the children provided for by article 24(1) of the present Code. In the absence of such agreement or if the agreement violates the interests of children, the court shall take measures to defend their interests in the procedure provided for by Article 24(2) of the present Code.

2.The marriage shall be dissolved by a court not earlier than a month from the date of the filing by spouses of the application concerning dissolution of the marriage.

Article 24. Questions to be Settled by Court When Rendering Decision Concerning Dissolution of Marriage

1. When dissolving a marriage in a judicial proceeding the spouses may submit for consideration of the court an agreement concerning with which of them minor children will reside, the procedure for payment of means for maintenance of the children, and/or the lack of labour capacity of a needy spouse, the amounts of such means, or the division of common property of the spouses.

2.If there is no agreement between the spouses with regard to questions specified in point 1 of the present Article, and also if it is established that the particular agreement violates the interests of the children or one of the spouses, the court shall be obliged to:

-determine with which of the parents minor children will reside after the divorce;

-determine from which of the parents and in what amounts alimony shall be recovered for their children; -at the demand of the spouses (or one of them) divide property in their joint ownership;

-at the demand of the spouse having the right to receive maintenance from the other spouse, determine the amount of this maintenance.

3. If the division of property affects the interests of third persons, the court shall have the right to separate out the demand concerning the division of property into an individual proceeding.

Article 25. Moment of Termination of Marriage in Event of its Dissolution

1.A marriage dissolved in agencies for the registry of acts of civil status shall terminate from the day of State registration

of dissolution of the marriage in the book for the registration of acts of civil status, and in the event of dissolution of a marriage

in a court, from the day of entry of the decision of the court into legal force.

2.Dissolution of a marriage in a court shall be subject to State registration in the procedure established for the State registration of acts of civil status.

The court shall be obliged within three days from the day of entry into legal force of the decision of the court concerning the dissolution of the marriage to send an extract from this decision of the court in the agency for the registry of acts of civil status at the place of State registration of the conclusion of the marriage.

Spouses shall not have the right to enter into a new marriage before receiving the certificate concerning dissolution of the marriage in art agency for the registry of acts of civil status at the place of residence of one of them.

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Unit 4.

SECTION VII. APPLICATION OF FAMILY LEGISLATION TO FAMILY RELATIONS WITH PARTICIPATION OF FOREIGN CITIZENS AND STATELESS PERSONS

Article 160. Dissolution of Marriage

1. The dissolution of a marriage between citizens of the Russian Federation and foreign States or stateless persons, and also of a marriage between foreign citizens, on the territory of the Russian Federation shall be in accordance with legislation of the Russian Federation.

2. A citizen of the Russian Federation residing beyond the limits of the territory of the Russian Federation shall have the right to dissolve the marriage with a spouse residing beyond

the limits of the Russian Federation irrespective of the citizen ship thereof in a court of the Russian Federation. If in accordance with legislation of the Russian Federation the dissolution

of a marriage is permitted in agencies for the registry of acts of civil status, the marriage may be dissolved in diplomatic representations or in consular istitutions of the Russian Federation.

3. The dissolution of a marriage between citizens of the Russian Federation or the dissolution of a marriage between citizens of the Russian Federation and foreign citizens or stateless persons concluded beyond the limits of the territory of the Russian Federation in compliance with legislation of the respective foreign State concerning the competence of agencies which adopted the decision concerning dissolution of the marriage, and legislation subject to application when dissolving a marriage, shall be deemed to be valid in the Russian Federation [as amended 15 November 1997].

4. The dissolution of a marriage between foreign citizens concluded beyond the limits of the territory of the Russian Federation in compliance with legislation ot the respective foreign

State concerning the competence of the agencies which adopted the decision concerning the dissolution of a marriage and legislation subject to application when dissolving a marriage shall be deemed to be valid in the Russian Federation.

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Unit 5.

Chapter VII .

Article 38. Division of Common Property of Spouses

1.The common property of spouses may be divided both in the period of the marriage and after the dissolution thereof at the demand of either of the spouses, and also in the event of the statement by creditors of a demand concerning the division of the common property of spouses in order to levy execution

against the participatory share of one of the spouses in the common property of the spouses.

2.The common property of spouses may be divided between the spouses by their agreement. At the wish of the spouses their agreement concerning the division of common property may be notarially certified.

3.In the event of a dispute, the common property of spouses shall be divided, and also the participatory share of the spouses in this property shall be determined, in a judicial proceeding.

In the event of the division of the common property of spouses, the court at the demand of the spouses shall determine which property is subject to transfer to each of the spouses. If property is transferred to one of the spouses, the value of which exceeds the participatory share due to him, the other spouse may be awarded corresponding monetary or other contributory compensation.

4.The court may deem property acquired by each of the spouses in the period of their separate living when terminating family relations to be the ownership of each of them.

5.Things acquired exclusively in order to satisfy the requirements of minor children (clothing, footwear, school and sport appurtenances, musical instruments, children's library, and others) shall not be subject to division and shall be transferred without contributory compensation to that spouse with whom the children reside. Contributions made by spouses at the expense of the common property of spouses in the name of their common minor children shall be considered to belong to these children and shall not be taken into account when dividing the common property of spouses.

6.In the event of the division of common property of spouses in the period of the marriage that part of the common property of spouses which was not divided, and also the property acquired by the spouses in the period of the marriage thereafter, shall comprise their joint ownership.

7.A three-year period of limitations shall apply to the demands of spouses concerning the division of the common property of spouses whose marriage is dissolved.

Article 39. Determination of Participatory Shares When Dividing Common Property of Spouses

1.When dividing the common property of spouses and determining the participatory shares in this property, the participatory shares of the spouses shall be deemed to be equal unless provided otherwise by the contract between the spouses.

2.The court shall have the right to depart from the principle of equality of participatory shares of the spouses in their common property by proceeding from the interests of the minor children and/or by proceeding from the deserved attention to the interest of one of the spouses, in particular in instances when the other spouse did not receive revenues for unjustifiable reasons for expended the common property of the spouses to the prejudice of the interests of the family.

3.The common debts of spouses when dividing common property of the spouses shall be distributed between the spouses in proportion to the participatory shares awarded to them.

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Unit 6.

Chapter 8. Contractual Regime of Property of Spouses

Article 40. Marriage Contract

An agreement of the persons entering into a marriage, or the agreement of spouses determining the property rights and duties of spouses in the marriage and/or in the event of its dissolution, shall be deemed to be a marriage contract.

Article 41. Conclusion of Marriage Contract

1.A marriage contract may be concluded either before the State registration of the conclusion of the marriage or at any time in the period of the marriage.

A marriage contract concluded before the State registration of the conclusion of the marriage shall enter into force from the day of State registration of the conclusion of the marriage.

2.A marriage contract shall be concluded in written form and shall be subject to notarial certification.

Article 42. Content of Marriage Contract

1.The spouses shall have the right to change by a marriage contract regime of joint ownership (Article 34 of the present Code) established by a law and to establish a regime of joint, participatory share, or separate ownership to all the property of the spouses, to individual parts thereof, or to the property of each of the spouses.

A marriage contract may be concluded either with respect to existing and also in respect to the future property of the spouses.

The spouses shall have the right to determine their rights and duties in a marriage contract with regard to mutual maintenance, means of participation in the revenues of one another, the procedure for each of them to bear family expenses, to determine the property which will be transferred to each of the spouses in the event of dissolution of marriage, and also to include in the marriage contract any other provisions affecting the property relations of the spouses.

2.The rights and duties provided for by the marriage contract may be limited by determined periods or made dependent upon the ensuing or non-ensuing of determined conditions.

3.The marriage contract may not limit the legal capacity or dispositive legal capacity of spouses, their right to have resource to a court for the defence of their rights; to regulate personal nonproperty relations between the spouses, and the rights and duties of the spouses with respect to children; to provide provisions limiting the right of a needy spouse lacking labour capacity to receive maintenance, to contain other provisions which place one of the spouses in an extremely unfavourable position or contrary to the basic principles of family legislation.

Article 43. Change and Dissolution of Marriage Contract

1.The marriage contract may be changed or dissolved at any time by agreement of the spouses. An agreement concerning the change of or dissolution of the marriage contract shall be concluded in the same form as the marriage contract itself.

Unilateral repudiation of the performance of a marriage contract shall not be permitted.

2.At the demand of one of the spouses, the marriage contract may be changed or dissolved by decision of a court on the grounds and in the procedure which was established by the Civil Code of the Russian Federation for the change of and dissolution of a contract.

3.The operation of a marriage contract shall terminate from the moment of termination of the marriage (Article 25 of the present Code), except for those circumstances which have been provided for by the marriage contract for the period after termination of the marriage.

Article 44. Deeming of Marriage Contract to be Invalid

1. A marriage contract may be deemed by a court to be invalid in whole or in part on the grounds provided for by the Civil Code of the Russian Federation for the invalidity of transactions.

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