Vladimir, Russian Federation
The article explores the issues of traditional and legal regulation of relations arising from the rejection of a previously expressed intention to contract a marriage. The author analyzes the institution of engagement in the legislation of foreign countries. The current Russian legislation does not allow to protect the property rights of a bona fide party in due measure if the other party refuses to enter into marriage. The author made a conclusion about the possibility of legal regulation of actions preceding marriage and proposed appropriate changes in the legislation.
traditional values, legal regulation, engagement, marriage conditions, refusal to marry, compensation for damages, limits of legal regulation
The promise of marriage testifies to the seriousness, definiteness and finality of the intentions of men and women in the system of traditional values; it is a kind of moral guarantee of keeping the word.
In prerevolutionary Russia, it was a "great sin" to upset the wedding or cancel it after the ritual of beating hands which the bride and groom's fathers did as a sign of the final consent to make a marriage[1], and according to the popular belief, the party that decided to break up could be penalized by God[2]. The bona fide party could demand reimbursement of expenses for the wedding, compensation of losses, return of gifts, and sue for "dishonor", etc.[3]
However, the situations when one of the parties, who promised to marry and then did not keep the promise, were and are still quite common.
The bridegrooms or brides ran away on the day of their weddings for various reasons and under various circumstances, and these facts became the plot in the works of Russian classics, which also indicates the prevalence of such life situations. Let's recall how Ivan Kuzmich escaped from Agafia Tikhonovna through the window in Gogol's play "The Marriage"[4]. Nastasya Filippovna escapes in a wedding dress from Prince Myshkin in the novel "Idiot"[5] by Dostoevsky. Larissa Ogudalova ran away straight from the festive dinner party in Karandyshev's house and went on a picnic with Paratov in Ostrovsky's "Dowryless"[6].
The question arises: if these social relations are so widespread and can entail various consequences both in the property sphere (in the form of vain expenses for preparing for the wedding) and in personal (severe shocks, sufferings, stress), should they be regulated by law?
The legislation of many European countries contains the norms regulating the relations preceding the marriage between a man and a woman, including those related to the expressed intention to marry.
In the Civil Code of Germany, in Book 4 "Family Law", there is a special section "Engagement" (Verlöbnis). The engagement in Germany means a contract, according to which a man and a woman promise to marry each other[7].
Paragraph 45 of the Austrian General Civil Code[8] is dedicated to the engagement.
In the Civil Law of the Republic of Latvia[9], the chapter "The Marriage" of the first part of the "Family Law" contains the subsection "Engagement". The engagement in Latvia is a mutual promise to marry (Article 26).
The Civil Code of the Republic of Lithuania[10], the third book of which "Family Law" regulates family legal relations, provides that the marriage may be preceded by an agreement on marriage (engagement), which can be expressed orally or in writing. A public agreement on marriage is a marriage application filed in a prescribed form to the civil registry office.
At the same time, the legal institution of engagement in the legislation of foreign countries, as a rule, contains the norms regulating the inadmissibility of forcing the engaged to marry, as well as the rules regulating the grounds and procedure for compensation of losses and return of gifts in case of refusal to marry, and in some cases there are norms for compensation for moral harm. Let us dwell on them in a greater detail.
1. Inadmissibility of compulsion to marry.
Considering the voluntary nature of the marriage, it is impossible to make one party marry if he/she has changed the mind. It is directly enshrined in the legal acts of many European countries.
According to Paragraph 1297 of the Civil Code of Germany, the engagement is not grounds for bringing a lawsuit to the court for coercion to marry. The establishment of a penalty in the case of refusal to marry is invalid.
In Paragraph 45 of the Austrian General Civil Code, it is stated that the engagement or the preliminary promise to marry does not entail legal consequences either for the marriage itself, or for the performance of actions established for the abolition of the engagement or the preliminary promise to marry.
In accordance with Article 26 of the Civil Law of the Republic of Latvia, the engagement does not give the right to make anyone contract marriage in court. The penalty established in case of refusal to marry is invalid.
Article 3.8 of the Civil Code of the Republic of Lithuania provides that an agreement on marriage (engagement) does not oblige to conclude a marriage and cannot be enforced.
In accordance with Article 8 of the Law on the Family of the Republic of Estonia of 18.11.2009, the promise to marry does not give grounds for demanding marriage.
2. Compensation for losses in case of refusal to marry.
In accordance with Paragraph 1298 of the Civil Code of Germany, if the engaged person refuses to enter into marriage without any serious reason, he/she is obliged to compensate for the costs spent in anticipation of the marriage. The right to claim damages belongs to the other engaged person, as well as to his/her parents, as well as to third parties acting in lieu of the parents. The damage consists only of commensurate expenses and commitments. The limitation period for claims for damages is two years after the termination of the engagement (§1302 of the Civil Code of Germany).
If the rejection of marriage is caused by the fault of another engaged person, then this other person is obliged to compensate the damage in accordance with the above rules (§1299 of the Civil Code of Germany).
In accordance with Paragraph 46 of the Austrian General Civil Code, a party has the right to recover the actual damage that it incurred in connection with the cancellation of the engagement and which can be proved.
According to Article 28 of the Civil Law of the Republic of Latvia, if one of the engaged persons refuses to enter into marriage without any good reason or behaves in such a way that such behavior becomes an important reason for the other engaged person to give up the marriage, the latter, his/her parents, as well as those who have spent anything in favor of the engaged person may require the reimbursement of losses both material and moral as well as the commitments given in anticipation of the marriage.
In addition, the engaged person himself/herself may demand from another engaged person, who gave the grounds for the abolition of the engagement, a compensation for losses that relate to his/her property and possible profit and commitments in connection with the planned marriage. It is specifically noted that the amount of the compensation for damages should be commensurate with the social position and property of the perpetrator of the engaged.
3. Return of gifts.
Legislation of a number of foreign countries contains rules regulating the return of gifts if the parties that have had the intention to create a family refuse to enter into marriage.
According to Paragraph 1301 of the Civil Code of Germany, if the marriage is not concluded, then each of the engaged persons has the right to demand from the other to return the gift or anything that was given as a token at the engagement in accordance with the rules on the unreasonable enrichment. However, as a general rule, if the engagement has ended with the death of one of the engaged, the demand for the return of gifts is invalid.
Article 27 of the Civil Law of the Republic of Latvia stipulates that if the engagement is canceled or if any of the parties refuse to marry, both parties must return all the property given as gifts, either by the fiancé, the future bride or their parents.
Gifts given in connection with the planned marriage cannot be returned if the marriage did not take place due to: the death of the engaged giver; the giver's refusal to marry without any valid reason; the giver’s behavior which became an important reason for another engaged party to refuse to marry.
4. Compensation for moral damage.
Article 3.11 of the Civil Code of the Republic of Lithuania grants to the party entitled to compensation for losses incurred as a result of the failure to fulfill the marriage agreement the right to demand compensation for moral damage as well within one year from the date of refusal to enter into marriage.
It seems that in this case non-pecuniary damage includes moral harm, i.e. physical and mental suffering caused by the refusal to marry.
Legal regulation and law enforcement practice in Russia on disputes arising in connection with the refusal to enter into а marriage.
In the absence of special legal regulation, courts in Russia apply general provisions on damages (Article 15 of the Civil Code of the Russian Federation), compensation for harm (Chapter 59 of the Civil Code of the Russian Federation), as well as rules on unjust enrichment ( Chapter 60 of the Civil Code of the Russian Federation) and, as a rule, refuse to satisfy the claims, referring to the lack of a direct causal link between the defendant's actions and losses or to the lack of proof of the amount of losses[11]. In addition, taking into the consideration the fact the marriage is a voluntary act, it is problematic to prove such a condition for compensation of damages as the unlawfulness of the defendant's actions.
Thus, the decision of the Central District Court of Komsomolsk-on-Amur of the Khabarovsk Territory of May 27, 2014, when the appellate ruling of the Khabarovsk Krai's Judicial Board for Civil Cases of August 20, 2014 was left unchanged, denied the claim of L. to R. to compensate the material damage caused by the rejection to marry. In support of the claims, the plaintiff referred to the fact that initially the parties intended to marry and create a family, the plaintiff borrowed money and repaired the defendant's premises where the wedding ceremony was planned, but R. refused to register the marriage. The courts of both instances, refusing to satisfy the claims, referred to the lack of evidence of damage.
Moreover, some researchers (R.O. Opalev, V.F. Borisova, etc.) believe that the statement of claim containing a claim for compensation for damage caused by the groom’s or bride’s refusal to marry cannot be accepted at all, since the refusal to enter into marriage does not entail legal consequences and the applicant's interest in this case is not protected by substantive law.
With regard to the return of gifts in case of rejection to marry, the application of clause 1 of Article 451 of the Civil Code of the Russian Federation seems problematic in view of the absence of a reference rule in the family legislation of the Civil Code and the subsidiary nature of the application of civil law to family relations.
Even in the Soviet period some jurists (K. Lepyka and N. Soloviev[12], N. G. Yurkevich[13], etc.) believed it expedient to introduce the institution of engagement, to determine obligations and legal means ensuring their execution.
Nowadays, a number of researchers (A. Kiselev[14], IA Kosareva[15],, L. E. Chicherova[16]) also justify the need to introduce special rules in the family legislation that will regulate the property consequences of refusal to enter into marriage.
At the same time, other scientists believe that the legal regulation of the property consequences of the refusal to enter into marriage is unacceptable. So, according to O.Y. Ilyina, the relations between a man and a woman when one of them refuses to marry are not legal and are not included in the subject of legal regulation, and the accepted obligations to marry are not legal but moral[17].
We believe that the relations related to the motives and grounds for refusing to enter into marriage, with the expression of such refusal, with the moral and moral aspects of the failed marriage, including the sufferings and experiences of the bona fide party, are not subject to legal regulation, since feelings, emotions, the decision to marry lie outside the sphere of law, being under the influence of other social regulators: morality, traditional values, etc.
At the same time, the legal regulation of the property consequences of rejecting marriage is not only possible but also necessary in order to protect the rights of a bona fide party, excluding the possibility of extracting "marriage swindlers" benefits due to the absence of special legal norms in family legislation.
We believe that the Family Code of the Russian Federation should be supplemented with Article 10.1 of the following:
«Article 10.1. Engagement
1. Engaged persons are those who submitted an application for registration of marriage to the civil status registry office, as well as persons who publicly announced their intention to marry.
2. Engagement does not bind to marry. The establishment of property sanctions for the refusal to marry is void. The claim for compensation for moral damage caused by refusal to marry is not eligible for satisfaction.
3. If the engaged person refuses to enter into marriage, he/she is obliged to reimburse the other engaged person, as well as his relatives, for actual damage in the form of expenses incurred in connection with the preparation for the registration of marriage and the wedding ceremony. Reimbursement is subject to the necessary expenses in accordance with customs and traditions within reasonable limits. Taking into account the property status of the engaged, the court is entitled to reduce the amount of compensation.
4. Expenses referred to in Paragraph 3 of this article are not refundable if the rejection to marry was caused by the unlawful, immoral behavior of the other engaged person, by concealing circumstances that are significant (serious illness, child's presence, conviction, etc.), including those provided for in Articles 12 to 14 and Paragraph 3 of Article 15 of this Code, if the engaged person did not know. In these cases, the right to compensation for actual damage in accordance with Paragraph 3 of this article belongs to a person who refused to marry.
5. In the case when a person who has received a gift in connection with a future marriage refuses to marry, the donation contract may be terminated by the court on the grounds provided for in paragraph 1 of Article 451 of the Civil Code of the Russian Federation at the request of the donor.
6. The limitation period for the requirements provided for in this article is one year from the date of refusal to register a marriage».
The proposed changes in family legislation are designed to restore the traditional institution of engagement in family law and to protect the rights of bona fide participants in family relations.
[1] Даль В.И. Толковый словарь русского языка. М.: Издательство АСТ, 2016. С. 578.
[2] Смирнов А. Очерки семейных отношений по обычному праву русского народа. М.: Университетская типография (М. Катков) в Страстном бульваре, 1877. С. 254.
[3] Там же. С. 103.
[4] Гоголь Н.В. Собрание сочинений. Том 2. Женитьба. М.: Государственное издательство художественной литературы, 1959. С. 145-148.
[5] Достоевский Ф.М. Идиот: Роман. М.: ИД «Комсомольская правда», 2006. С. 537-539.
[6] Островский А.Н. Собрание сочинений. Том 8. Бесприданница. М.: Государственное издательство художественной литературы, 1960. С. 67-69.
[7] Гражданское уложение Германии – Deutches Bürgerliches Gesetzbuch mit Einführungsgesetz. Перевод с немецкого. В. Бергманн и др. М.: Волтерс Клувер, 2008. С. 422-423.
[8] Kodex des Österreichischen Rechts. Allgemeines Bürgerliches Gesetzbuch. Wien: LexisNexis, 2012. P. 13.
[9] Подраздел первый «Помолвка» главы первой «Брак» части первой «Семейное право» Гражданского закона Латвийской республики 1937 года (утв. Законом Латвийской Республики 25.05.1993) // Электронный ресурс: http://www.pravo.lv/likumi/05_1_gz.html.
[10] Раздел I «Семейное законодательство» части I «Общие положения» третьей книги «Семейное право» Гражданского кодекса Литовской Республики 2000 года // Электронный ресурс: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=286643.
[11] Якушев П.А. Институты помолвки и обручения: традиционное и правовое регулирование // Право и практика. 2016. № 4. С. 102 – 107.
[12] Лепейка К., Соловьев Н. Перед свадьбой – помолвка // Известия. 1968. 5 июня.
[13] Юркевич Н.Г. Заключение брака по советскому праву. Минск, 1965. С. 23 – 49.
[14] Киселев А. Дарение и брак в Европе и России // ЭЖ-Юрист. 2011. № 20. С. 5.
[15] Косарева И.А. Правовое значение действий, предшествующих бракосочетанию (нужен ли в России институт помолвки или следует ли возродить обручение) // Бюллетень нотариальной практики. 2007. № 2. С. 10 – 14.
[16] Чичерова Л.Е. Ответственность в семейном праве: вопросы теории и практики. Автореф. дисс. … канд. юрид. наук. Краснодар, 2004. С. 9.
[17] Ильина О.Ю. Брак как форма государственного признания отношений между мужчиной и женщиной // Семейное и жилищное право. 2006. № 4. С. 30-35.
1. Borisova V.F. Determination of a proper court as a condition for access to justice in civil cases // Arbitration and civil procedure. #12, pp. 27-32.
2. Ilyina O.Y. Marriage as a Form of State Recognition of the Relationship Between a Man and a Woman // Family and Housing Law. 2006. #4. pp. 30 - 35.
3. Kiselev A. Gifts and marriage in Europe and Russia / / EJ-Lawyer. 2011. #20. p. 5.
4. Kosareva I.A. The legal significance of the actions preceding the marriage (whether an engagement institution is needed in Russia or whether a betrothal should be revived) // Bulletin of notarial practice. 2007. #2. pp. 10 - 14.
5. Opalev R.O. Material and legal interest as a condition for the initiation of a civil case in court // Arbitration and civil procedure. 2006. #2. p. 8.
6. Yakushev P.A. Engagement and betrothal institutions: traditional and legal regulation // Law and practice. 2016. #4. pp. 102 - 107.
