11.05.2014
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The Sentence in area of family law in the Republic of Kazakhstan
with using collision bindings
«Institution of the family at the present stage of human development is undergoing major changes, and, according to some researchers, evens the crisis. Due to the uncertainty of the future, or not yet improved the material and economic status the number of actual marriages that are not bonded by any official ties increases: union’s friends, girlfriends, which basically perform the same functions, except one - the birth of children. Single-parent families, the number of which is growing under the influence of sufficiently high divorce, rate - from 30 to 50 to the number of marriages are a special concern».
Dynamics of marriages and divorces in the Republic of Kazakhstan
«Harmonization of legislation in different countries on family relationships - employment is difficult and impractical. In this regard, the adoption of the Hague Conventions 1902-1906 was the first attempt to achieve uniformity in the application of conflict rules in family law. Unfortunately, these conventions which are designed to regulate marriage and divorce, guardianship have not received proper distribution and the number of participants at those conventions is not large.
In the middle of the XX century Hague Convention adopted the law applicable to maintenance obligations in favor of children in 1956, the New York Convention adopted the law on the Recovery Abroad of Maintenance in 1956, the Hague Convention adopted the law on the recognition and enforcement of decisions relating to maintenance obligations in favor of children in 1956; the Convention on the nationality of Married Women in 1958, the Convention on the legal status adopted the law of children born out of wedlock (Strasbourg, 1975), the Convention on jurisdiction and the law applicable in respect of the protection of minors in 1961, the Hague Convention on the Civil Aspects of International Child Abduction 1980. It should be noted that these conventions are not obligatory to all states.
Marriage, as we know, is a union of a man and a woman, generating certain legal consequences. Virtually all legal systems define the conditions that must be determined and must be completed before entering into marriage. These conditions include the absence of kinship, consent of third parties, the attainment of marriageable age. Marriages may be valid, invalid and voidable. Marriage can be annulled if one of the spouses is a valid marriage with a third person. It can be attributed voidable marriage if it has been signed under the influence of fraud or any other significant errors. In addressing these issues Choice Act becomes problematic, which would define the legal preconditions under which the marriage would be recognized as valid. These problems are due to the fact that in different countries these issues are regulated differently.
As a rule, the decisive law, private international law regards the law, place of marriage (lex loci celebrations). Another approach to the laws regulating the conditions of marriage, include personal law or the law of citizenship. In turn, the 1902 Hague Convention specifies that the form of marriage established the law of the marriage. But there are exceptions when the form of marriage may be determined by the law of the country of one of the spouses. In addition, the Convention provides a list of marriages to which this Convention does not apply. This list includes unformed properly marriages, posthumous marriages, marriages on board of a vehicle (aircraft, marine vessels), marriages which were arranged by military authorities».
«Each State within its jurisdiction sets its own rules regulating the same relationship. Lack of uniform standards for all legal systems is compensated by adoption of new international conventions, international custom formations.
For example, the legal system of each state establishes an institution of family law such as marriage. In this case the material conditions, compliance with which gives marriage» legal force», the law of each state endowed with its own content. For example, in the Republic of Kazakhstan in accordance with the terms of family law marriage must have mutual voluntary consent, the attainment of marriageable age to marry and the absence of circumstances that prevent the marriage. Thus it is possible to provide a comparative analysis of the laws of some countries, where special rules for marriage. In the case where there is a big difference in the age of the prospective spouses under Jordanian law, permission to enter into such a marriage can only be given by court. This problem is similarly solved in Syria, where the court may refuse a marriage, if it turns out that the parties do not fit each other in age and proposed marriage does not make sense. In marriage in a number of Arab consent of the bride or groom are not taken as the mandatory conditions. And according to family law in Yemen, if the bride enters into a marriage is decided by her guardian, who can marry a young girl without her consent. The guardian also has broad powers under the order and the fate of a minor boy, whom he can marry provided that the latter has reached the age of fifteen. Thus, the age limit for persons entering into a marriage is not provided for by the legislation of Yemen.
Violation of the rules on the marriage age in each state generates different legal consequences, such as the laws of England and France is a violation implies absolute nullity of marriage (marriage makes void) and under the laws of Argentina, Brazil and some states of the United States of America concerning marriage will be considered null and void (voidable). In Switzerland, the age of marriage, for example, is set for women - 18 years, for men - 18 years, for women in France - 15 years, for men - 18 years.
Collision situations arising in the area of family relations, we can consider the example of any institution of family law. Look at an example of legislative «discrepancies» in matters relating to the relationship between parents and children. These include regulation of the origin of children born out of wedlock, establishing paternity, establishing the origin of the problem child from the mother, the property relations between parents and children. One of the main issues - the question of paternity in some countries can be solved only on the basis of voluntary recognition of the father of an illegitimate child, (such a provision exists in continental Europe). In other countries (for example, in England, some states in the United States) a statement of the father is not sufficient for this need: the conclusion of a special medical examination and presentation of other evidence confirming the paternity of an illegitimate child.
Family law for a number of states is characterized by the primacy of the husband, in many countries there is still a position of inequality between husband and wife in the family. Laws of most states come from monogamy. However, until now in some Asian and African countries is recognized polygamy, saved archaic customs of payment for a bride is set extremely low age for women entering into marriage. All this testifies to the discrimination of women in family law. Law and practice of several countries known as racial restrictions do not permit marriages between people of different race or different religion. A marriage made in one State in accordance with the law of the place of his detention, may not be recognized in another state that generates the so - called «lame» marriages.
Property relations of spouses are determined in a number of the personal law of the husband. According to the Law on Private International Law of Hungary, the substantive conditions for the validity of marriage are regulated by «common personal law «of persons entering into marriage. If the personal laws of different persons, the marriage is valid only when the conditions of validity «exist under the laws of both sides.»In Hungary a form of marriage the law of the place of marriage. In the People's Republic of China at marriage of a citizen of the People's Republic with a foreigner, the law of the place of marriage and the dissolution of marriage - the law of the location of the court to hear the case».
«The laws of many states contain a number of conditions, which lead to the onset of marriage. In summary, these conditions look like this: the attainment of marriageable age, not belonging to another marriage, lack of closely related relations, the lack of enumerated diseases; marriage license given by parents, guardians or persons replacing them».
«In some countries close relatives are recognized between brothers and sisters, in others - to those classified as other relatives. The law provides a number of countries, young people necessarily imposes each other medical records about their health. Also, there are conditions for the validity of marriages, only with the consent to marriage by their parents. Existence of contradictory regulations under the terms of the marriage prompted the state to unify these provisions in the Treaty in 1940 on international civil law, in the 1978 Convention on the Recognition of marriage and it is valid.
In the legislation of some States there is a symbiosis, the above mentioned two systems: application and the law, and the law of the place of marriage.
Different combinations may be applied according to the personal law: the law of nationality of the husband, citizenship law of the wife, the law of common nationality. The situation is similar while using the law of the place of residence. However, some issues, such as the material conditions of the marriage, for each person are individually solved: it is determined by law or citizenship or legal residence for each person entering into marriage.
«In accordance with Article 1094 of the Civil Code of the Republic of Kazakhstan personal law of the individuals - the most common formula of attachment includes two options: a national law or the law of nationality, the law of the place of residence. The first is the use of the right of the State of which the person is the second application of the law of the State in whose territory the person resides or where the person is now». However, there are countries that have a «mixed system» that uses both forms of the personal law. A mixed system of personal law is used in all new codifications of private international law. A typical example is the Hungarian Act on Private International Law in 1979.
Thus, the transition to a mixed system of personal law is an important feature of modern development of family law, which increases its efficiency».
Our sentence
I think that we must to create the convention, which can be decided all problems of family law in the Republic of Kazakhstan with using collision bindings and it’s ratify.
Abramenko O.
