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The main difference in family law and, accordingly, a similar requirement for consideration of family cases in court – this is an increased level of privacy as a fundamental difference between family legal relations and any other relations in society. Matrimonial and family cases arising from family legal relations as a special kind of relations require not only a full, comprehensive and objective study, which is, of course, a prerequisite for judicial proceedings in general, but also a special approach, as they belong to the sphere of personal family relations.
Unfortunately, practice shows that courts of general jurisdiction, having a considerable overload of "ordinary" in civil cases, they do not really analyze the plot of each family case when making decisions, they have neither the time, nor the experience, nor the habit to consider such cases with scrupulous attention and impartiality. For example, such an important issue during a divorce, as determining the future residence of a child with one of the parents, is usually resolved purely superficially, and the advantage, not always justified, is given to the woman. Considering the fact that one of the main functions of the family is raising children, the use of various types and forms of violence against its minor members by persons legally obliged to raise them is an unacceptable and terrible phenomenon for a civilized society. At the same time, the formalized approach to cases related to family and domestic violence, both against children and against women, shows the inability of the state to adequately fight it and is, unfortunately, an important prerequisite for its high latency, repetition and prevalence in modern Ukraine.
It is worth noting separately the painful issues of property status, determining the share in joint property and inheritance of each spouse in a civil marriage (concubinate - from the Latin concubinatus, from concubo – "to lie together", Articles 74, 91 SCU: "Living in the same family of a woman and a man without marriage is not a basis for their rights and responsibilities as spouses») and the absence of the practice of concluding a marriage contract as a contractual form of regulating marital relations, which in the West has long been a manifestation of the established legal culture of the population.
Also, although the law does not directly impose restrictions on the gender of each spouse for its legal definition and state registration of marriage, practice convinces that de facto only a union between a man and a woman is envisaged, and only they have the right, say, to adoption of a child (Article 211 of the Civil Code) or inheritance one by one. The issue of the legalization of same-sex marriages cannot even be put on the agenda at the moment, because due to the foundations of the Slavic mentality, it instantly acquires the brand of "propaganda of homosexuality".
The complex of similar topics can be continued, because family life by definition is a private sphere, where moral and ethical factors significantly outweigh the norms of the law, and the main problem is obvious – modern post-totalitarian society is gradually freed from administrative-controlling, bureaucratized schemes everywhere, but it is much more difficult to get rid of stereotypes in the mind.
The new Family Code adopted in 2002 supplemented Ukrainian legislation with a number of fundamentally new institutions in the field of marital and family legal relations. It is primarily about the fact that only those relationships that actually need legal protection and protection should be regulated at the level of the law.
Yes, one of the fundamentally new provisions was:
dissolution of marriage by joint application of the spouses (Article 109 of the Civil Code);
establishment of a regime of separate residence for spouses (Article 119 of the Civil Code);
In addition, these cases are considered in the order of separate proceedings.
Separate proceedings (Part 3 of Article 324 of the Civil Procedure Code) - a type of non-suitable civil proceedings, in the order of which civil cases of confirmation are considered the presence or absence of legal facts that are important for the protection of the rights and interests of a person or the creation of conditions for his exercise of personal non-property or property rights, or confirmation of the presence or absence of indisputable rights. In family law, in addition to the above-mentioned cases, there are cases on the granting of the right to marry, on the renewal of marriage after its dissolution, etc. (Clause 3 of Article 234 of the Civil Code).
The Family Code of Ukraine also provides for judicial consideration of cases about:
collection of alimony for adult children (Article 200 of the Code of Civil Procedure);
setting the minimum amount of alimony per child (Article 182 of the Civil Code);
determining the place of residence of a child under 18 years of age (Articles 160-162 of the Civil Code)
Corresponding new norms also appeared in the Civil Code of 2005, in particular regarding the alternative jurisdiction of divorce cases (at the plaintiff’s place of residence if he has dependents minor or minor children, or if he cannot go to the place of residence of the defendant due to his health or for other valid reasons, or by agreement of the spouses - to the place of residence of any of them (clause 2 of article 110 of the Civil Code).</ p>
It should be noted that in most modern European countries, the legislation provides for consideration of cases in the field of family legal relations, albeit in courts of general jurisdiction, as in Ukraine, but by individual judges endowed with special powers. It is significant that according to the French Civil Code, a judge in family cases is not competent to consider claims related to the determination of the regime of property relations of spouses. The judicial system of Germany includes specialized family courts and guardianship courts, which deal with cases of divorce and division of joint property, deciding the fate of children, custody and care. The establishment of family courts as courts of first instance in the system of courts of general jurisdiction would be fully justified in the context of judicial reform in Ukraine and would contribute to truly individualized and professional consideration of this category of civil cases.
Our services in the field of family law:
dissolution of marriage, including with "complications" (the other spouse does not want to give consent to divorce, problems with determining joint property, including real estate and corporate rights, and its distribution, the future fate of children, etc.);
supporting the conclusion of a marriage contract is a world practice that really helps to avoid a complicated and expensive procedure for dividing joint joint property;
adoption - in Ukraine it is an extremely complicated and bureaucratized process, especially regarding the adoption of a child with Ukrainian citizenship by foreigners;
deprivation of parental rights or their restoration;
alimony disputes, also in case of debt collection for their payment for the past period;
establishment of kinship in court order;
challenge and recognition of biological paternity and maternity, which involves conducting a special examination
It is the strength of traditions and public condemnation that slow down the urgent modernization of family legislation in Ukraine or reduce it to a formal procedure. Therefore, one should not interfere in a person's private life and not condemn, say, a single mother – the social and economic climate in the state as such should contribute to the diversity of family forms, the culture of family relations, including between parents and children, and the education of tolerance as a worldview. Only then can we count on real changes in legislation of a truly civilizational scale, especially in family law.
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