ON THE SUBJECT OF PROOF IN CASES OF ESTABLISHMENT OF FACT OF A MAN AND A WOMAN LIVING AS A FAMILY WITHOUT BEING MARRIED
Journal Title: Вісник Одеського національного університету. Правознавство - Year 2015, Vol 20, Issue 2
Abstract
Theoretical issues concerning the so-called ",de facto marriage", has taken the attention of many prominent scientists, however, they never touched the problematic issues of the content of the application filed in the court to establish the fact of living of a woman and a man as one family without registration of marriage or the so-called ",de facto marriage",. Due to the fact that the legal fact of man and woman living as one family without registration of marriage is established in a judicial proceeding, the court, in the decision, should be guided by specific regulations (the norms of substantive and procedural law). A separate problematic issue is the definition of the subject of proof in affairs about establishing the fact of living in a family of man and woman without marriage. As the results of studying the judicial practice as the applicants (the plaintiffs in the action proceedings), and courts are usually very different and, in our opinion, often totally incorrectly formulate the operative part of the statements and decisions, respectively. This article explores examples of judicial practice in which courts have incorrectly applied norms of substantive (civil, family) and civil procedural law in cases concerning the establishment of a legal fact of living of a man and a woman as one family without registration of marriage. The author analyzes the errors and their legal consequences and provides proposals to prevent them in the future. In conclusions it is noted that the current family law operates narrative, such that do not meet the requirements of legislative techniques, concepts in this category of cases, the courts often violate the principles of application of legal norms in time. The article concludes on what it is the subject of proof in these cases and how it is necessary to formulate the requirement.
Authors and Affiliations
Y. O. Pilipenko
Keywords
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