Family law

Family law [сімейне право; simeine pravo] The body of laws that governs the procedure and conditions of marriage and of its dissolution (see Divorce), and also regulates the personal and property relations that arise between spouses, between parents and children, and among other family members.

In pre-Christian times seizure, purchase, and transfer of women were the basic forms of marriage, which was the main institution of family law. The introduction of Christianity and the Christianization of Ukraine brought about a gradual acceptance of monogamy as the dominant principle of family law. According to the Byzantine law practiced in Kyivan Rus’ during the Princely era, the contractual element of the marriage act was more important than the religious, sacramental element. Ruskaia Pravda contained a number of sections on care and support, but did not discuss family law separately.

Family law was more fully developed in the Lithuanian Statute. The principle of monogamy became firmly established, and marriage came to be regarded as both a contract and a sacrament. To make marriage binding, both sides had to enter into it voluntarily. A minimum age limit for marriage was set. The church courts ruled on matters of separation.

The Hetman state did not introduce any changes in the family laws of the Lithuanian Statute. The introduction in 1835 of a Russian imperial code of law in Ukraine, however, led to the complete transfer of family matters to the church courts and to the marked inequality of women. In the Ukrainian territories within the Austrian Empire, the Austrian civil code of 1811 with its confessional system of family law and the indissolubility of Catholic marriages was in force.

During Ukraine’s struggle for independence (1917–20) the old family law remained in effect. But as soon as Bolshevik rule was established in Ukraine, tsarist family law was revoked, and the Council of People's Commissars of the Ukrainian SSR issued on 20 February 1919 the following decrees: On Civil Marriage and the Registration of Civil Status Documents, On Divorce, and On the Organization of Departments of Civil Registry. These decrees, as well as the new 1926 Code of Laws on Family, Guardianship, Marriage, and Acts of Civil Status of the Ukrainian SSR were a sharp reaction against tsarist legislation. They provided for full equal rights for men and women, excluded the church from family life, removed any distinction between legitimate and illegitimate children, and made the dissolution of marriage a very simple matter. In contrast to the Russian code of family law, the Ukrainian code accepted the registration of marriage at an office of the civil registrar (ZAHS) as the only real proof of marriage unless there was a court decision to the contrary. The only legal form became the declaration of marriage by both parties and its registration with the civil registrar. According to the code of 1926 the minimum marriageable age was 18 for men and 16 for women. Individuals married at the time, who were recognized as mentally ill or retarded, or who were close kin, were barred from marrying. In 1947–53 marriage between a Soviet citizen and a foreigner was prohibited.

An unlimited right to divorce without court involvement and even at the wish of only one of the parties existed until 1936. Thereafter, both parties had to appear at a civil registrar’s office, had to pay a prorated divorce fee, and the divorce was noted in their internal passports. A disabled divorced party (man or woman) had the right to receive alimony from the other party for one year. In order to strengthen the family and to increase the population of Ukraine, which was greatly reduced by the Second World War, the decree of 8 July 1944 restricted significantly the freedom to divorce. High divorce fees and announcement in the press of the intention to divorce were required. The lower courts tried to reconcile the married parties, while the higher courts examined the validity of the grounds for divorce and issued a decision. The Union decree of 1965 reduced these requirements by revoking the obligation to publicize the intention to divorce and the obligatory review of the case by a higher court.

Until 1944 the father of a legitimate or illegitimate child was obligated to support the child. Hearings for determining the father’s identity were accepted. The decree of 8 July 1944 prohibited such hearings and charged the state with the support of children born out of wedlock.

On 1 October 1968 the law Foundations of Legislation in the USSR and Constituent Republics on Marriage and Family was adopted, and on 1 January 1970 the Code on Marriage and Family of the Ukrainian SSR, which was based on the Foundations, was put into force. The purpose of the code was ‘to further strengthen the Soviet family, which was based on the principles of Communist morality’ (article 1). The rights and duties of marriage were recognized only after a ceremony had been conducted at a civil registrar’s office. Mutual consent of both partners and a minimum age—18 for men and 17 for women—were the necessary conditions of marriage. The partners enjoyed equal rights within the family and had equal obligations. Any property acquired during marriage belonged to both parties.

The new code permitted divorce through mutual consent if there were no dependent children; the formalities could be settled at a civil registrar’s office. Otherwise, a court had to grant divorce after determining that living together and family life were impossible. A husband could not initiate divorce proceedings without his wife’s consent if she was pregnant or if there was a baby under one year of age. To avoid precipitate marriages, the formal procedure took place a month after the couple informed a civil registrar’s office in writing of their intention to marry. In some cases this time limit could be shortened. A divorced party had the right to receive alimony only if he/she was disabled (with certain exceptions). The parentage of a child born out of wedlock could be registered by its natural parents at a civil registrar’s office or could be determined by a court. The courts could deprive people of their parental rights. Parents were obligated to support underage and disabled children. Children also had the duty to support disabled parents. To minimize the state’s burden, other family members and relatives had alimony obligations.

Adoption was permitted only in respect to underage children and in their interest. Children whose parents had died, had lost their parental rights, were too ill to care for them, or had abandoned them were provided with guardians and care in such a way as to safeguard their personal and property rights and interests. Guardianship and care was determined not by the courts but by the executive committee of the raion, city, town, or rural soviet.

Marriage between a Soviet citizen and a foreigner did not entail changes in citizenship. Any marriage that was contracted outside the USSR according to the law of the given country was recognized in the Ukrainian Soviet Socialist Rrepublic, unless there was a specific reason why such recognition could not be granted, as set down in the Ukrainian family code—lack of mutual consent, insufficient age, polygamy, blood ties, illness, an so on.

Boshko, V. Rodynne podruzhnie pravo (Kharkiv 1929)
———. Ocherki sovetskogo semeinogo prava (Kyiv 1952)
Sverdlov, G. Sovetskoe semeinoe pravo (Moscow 1958)
Matveev, G. Istoriia semeino-brachnogo zakonodatel'stva Ukrainskoi SSR (Kyiv 1960)
Bilinsky, A. Das sowjetische Ehrerecht (Herrenalb 1961)
Novoe v zakonodatel'stve o brake i sem'e (Moscow 1970)
Iakymenko, O. (ed). Kodeks pro shliub ta sim"iu URSR (Kyiv 1973)

Jurij Fedynskyj

[This article originally appeared in the Encyclopedia of Ukraine, vol. 1 (1984).]

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