Family Law on Post-Soviet European Territory: a Comparative Overview of Some Recent Trends
Electronic Journal of Comparative Law, vol. 14.1 (May 2010), http://www.ejcl.org
Family Law on Post-Soviet European Territory: A Comparative Overview of Some Recent Trends
Olga A. Khazova[*]
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1. Introduction
As a result of the Soviet Union dissolution in 1991, 15 new independent states were formed on post-Soviet territory. Ten of them – Armenia, Azerbaijan, Belarus, Estonia, Georgia, Latvia, Lithuania, Moldova, Russia, and Ukraine – are usually regarded as belonging to Europe.[1] All these countries, except Belarus, are Member States of the Council of Europe. Estonia, Latvia, and Lithuania are Member States of the European Union.
The formation of the new states on post-Soviet territory was followed by radical reforms in political, economic and legal systems in these countries. Family law reform was a constituent part of this revision. Family law had to be adapted to the new social and economic realities, which came to these countries together with tremendous political change. All the countries under consideration adopted new family legislation, the very first being Latvia in 1992 and the last one Armenia in 2004. In chronological order, the following legislation was enacted:
· 1992 – the Civil Law of Latvia 1937 (restored) (Part One on Family Law);[2]
· 1994 – the Family Law Act of Estonia (included as a separate book in the Civil Code);[3]
· 1995 – the Family Code of the Russian Federation;
· 1997 – the Civil Code of Georgia (Book Five on Family Law);[4]
· 1999 – the Code on Marriage and the Family of Belarus;
· 2000 – the Civil Code of Lithuania (Book Three on Family Law);[5]
· 2000 – the Family Code of Azerbaijan;
· 2001 – the Family Code of Moldova;
· 2002 – the Family Code of Ukraine;[6] and
· 2004 – the Family Code of Armenia.
To understand the current state of family law in the European post-Soviet countries and the main trends in its development within the European context, we need to be aware of the origin of family law in these countries. We need to be aware that it came, to a lesser or greater extent, from the family law of the USSR; and the longer Soviet tenure, the more engrained Soviet family law principles. Putting aside an overall critique of the Soviet political regime, it would be mistaken not to acknowledge the liberal and progressive character of Soviet family law during much of the Soviet period. More than that, at a certain stage, during the first 15 years after the Bolshevik coup d’état in October 1917, it significantly outstripped Western family law.
Before October 1917, family law in the Russian Empire did not differ considerably from Western law: spouses’ relationships were based on the subordinate position of a married woman; the husband was the head of the family; marriage, as well as divorce, fell within the jurisdiction of ecclesiastical courts; and dissolution of marriage was either forbidden or permitted only on a fault basis often regulated differently for men and women; children born out of lawful wedlock were discriminated in many respects because of their illegitimate status.
One of the main tasks of the new Soviet power with respect to marriage and family was to break down completely, as quickly as possible, the old family law rules. The Bolsheviks understood that to establish a new social order in the most effective way, it was necessary to break down the old stereotypes and, first of all, to break down the old stereotypes within the family. To do so, to reorganize the family completely, it was necessary to withdraw marriage from the jurisdiction of the ecclesiastical courts and introduce civil (secular) marriage, to make women equal to men and to release women from their husbands’ “tyranny”, to use Lenin’s expression, to abolish fault-based divorce, to make divorce by consent easily available, and to equalize the status of children born within and outside marriage, eliminating the very concept of illegitimacy from the law. All this was achieved in 1917-18 through the Bolshevik’s new legislation on marriage and the family.[7] Later, in 1926, the validity of de facto marriage, or what we call now extramarital cohabitation, was recognized. Thus, during the first post-revolutionary years a new family law was created − a family law that was entirely different from Western family law of the same period. It could be seen, to quote M. Antokolskaia, “as an early herald of the pan-European ‘family law revolution’”.[8] It would take the West 50 to 60 years to pass similar reforms.
Slightly digressing from the main theme of this paper, I need, nevertheless, state that during the subsequent Stalinist period most of the liberal provisions of the first post-revolutionary legislation were rescinded, especially when the infamous Act of 8 July 1944 abolished most liberal rules as defined in earlier, post-revolutionary family law. Particularly, it abolished de facto marriages, made divorce very difficult and put it under strict control of the courts. It also abolished the institution of establishing paternity outside legal marriage, and went to the opposite extreme, since it became impossible for a man to legally recognize his child born out of wedlock and for an unmarried mother to institute paternity proceedings. The liberal provisions were restored only in late 1960s with the exception of de facto marriage which has not been recognized since being abolished in 1944.
Technically, according to the federal structure of the Soviet state, the Soviet Republics were granted, at least in theory, the right to have their own family law. However, in reality, the Republics did not have any freedom in designing these laws. Instead, they were obliged to follow the federal law – the Fundamentals of the Legislation of the USSR and Soviet Republics on Marriage and the Family of 1968 – which covered the main family law issues. Apart from that, the imperial nature of the Soviet state did not presuppose the independence of the republics; on the contrary, it was implied that republics would copy the legislation of the Russian Soviet Federative Socialist Republic (RSFSR)[9] – the “main” Soviet republic which was considered to be the first among equals. The result was that differences between the republican Family Codes (the Codes on Marriage and the Family), if any, were slight; and they all had the RSFSR Code on Marriage and the Family of 1969 as a common compulsory model.[10]
Soviet family law was designed to meet the demands of Soviet society. This was a society without a market economy where the overwhelming majority of the population earned low salaries. The Soviet regime did not allow spouses to freely make their own property arrangements, and the legal rules on property and financial relations between spouses were imperative and very restrictive. The legislator considered the marriage contract a bourgeois relic and did not permit spouses to deviate from the statutory rules. Both spouses were supposed to work and providing alimony occurred only as an exception, in cases of a spouse’s serious disability.
It is not surprising, therefore, that after the former Soviet republics became independent and were released from the pressure of the Soviet state, a completely different picture of family law emerged. The countries had different choices and could go in different directions. The range of innovations clearly indicates that at least some of them departed from the Soviet model of family law significantly.
First of all, as to the form in which the recent post-Soviet family law reforms have been carried out, there were two different solutions. Six countries adopted new codes that dealt exclusively with matrimonial and family matters – as it was done in the Soviet Union. Most of them were titled “Family Code”, with only Belarus retaining the old Soviet name “The Code on Marriage and the Family”. At the same time, four other countries (Latvia, Lithuania, Estonia, and Georgia) included family law in their Civil Codes as a separate book or section, thereby making it an integral part of civil law[11] in accordance with the continental law tradition since the Napoleonic Code of 1804. Former Chair of the Supreme Court of Georgia L. Chanturiya called family law “a natural part of civil law taken out from the Civil Code during the Soviet time on ideological grounds”.[12] Its return to the Civil Code was perceived as “an important peculiarity of Georgian civil codification”.[13]
Indeed, this distinction is not just a matter of technicality or legal drafting methodology. It is directly linked to the Soviet ideology and the way separation of family law from civil law was interpreted and reasoned in the USSR. The point is that Soviet law did not recognize division of public and private law because of its “bourgeois” nature. Under the Soviet legal system socialist law was divided into numerous branches, with family law being interpreted as a separate branch, distinct from civil law.[14] Marriage and family matters were therefore regulated by a separate legal act that dealt specifically with matrimonial and family issues and were not included in the Civil Code.
The separation of family law had a historical explanation and, initially, it occurred in the post-revolutionary legislation for reasons of legal technique only. At that time, while the country urgently needed a radical reform of family law, it did not, need any civil law at all, as all private property, which exceeded the “bare need of consumption”,[15] was abolished as an attribute of capitalism. During these first post-revolutionary years, “there was going on a process of destruction of the core of the prerevolutionary civil law – the law of private ownership”.[16] When, later, in the course of the New Economic Policy (NEP) and in a revived economy, the need for a civil law arose, the first Civil Code was adopted (in 1922). However, by that time the first Family Code 1918[17] had already been functioning successfully for almost four years; everyone had become familiar with it and its revision had not become necessary yet. For that reason, it was decided not to include family law in the new Civil Code of 1922.
Later, however, by the end of the 1920s and in the early 1930s the “separate existence” of family law would step by step acquire a strong ideological basis. The need for this basis was rooted in the development of a totalitarian state. 1929, known as “the year of the Great Retreat”, marked a final point in the development towards a totalitarian regime and the beginning of Stalin’s reign of terror. To pursue Stalin’s policy, the government needed strict legal rules to control society.[18] Consequently, it was necessary “to reconsider” the very idea of the “withering away” of the state and the law, the idea fashionable during the after-revolution years. Stalin’s policy was connected with tightening up, apart from other areas of social life, ideological and political disciplines. At the academic level it showed itself in the attacks on Soviet legal scholars who claimed that the law would crumble under socialism.[19] They were accused of taking a nihilistic approach to Soviet law, and many were subject to repression for their “wrong” thoughts and opinions. Under the “new” understanding, it was said that Marx’ and Lenin’s attacks on law were in fact attacks only on “bourgeois” law and not a denial of Socialist law.[20] To the contrary, as it was stated at the time, law would play a very important role in Socialist society.
Exactly the same metamorphosis took place in the field of family law. According to the “new” doctrine, marriage was not supposed to wither away following the state and the law, but would instead be strengthened under socialism. It is interesting to see how official doctrine “played” with communist ideas and how it managed to use the same principles for pursuing a radically different policy; the diverging interpretations of the same concepts clearly depended on the demands of a given time.[21] To be fair, it was done rather skillfully. It was said, for example, that “the founders” of Marxism-Leninism, when they attacked the family, had in mind, in fact, only the bourgeois family, and not the family under socialism.[22]
It is therefore not surprising, that Soviet legal doctrine needed a family law that would be separate from civil law, as well as separate and distinct from Western family law. It would help to substantiate the differences between the Soviet and the bourgeois family where the former was declared to be free from mercantile considerations and based on love only and the latter had a pragmatic, mercenary basis, which was alien to the official Soviet vision of marriage and the family. The Soviet state had always defended vigorously the “separate existence” of family law; and this concept is still very strong, at least in Russian legal doctrine, although in the post-Soviet era it lost its spirit of confrontation with the West.
Thus, coming back to the post-Soviet family law reforms, the fact that four countries have chosen a Civil Code format is itself a remarkable feature of the development of post-Soviet family law. It meant that they rejected the Soviet interpretation of family law as conceptually different from civil law.
The Lithuanian drafters also conceptualized the transfer of family law provisions from the Code on Marriage and the Family to the Civil Code by emphasizing the contractual element of marriage. It influenced significantly and in some way even determined the way certain issues were solved in the Code (particularly, engagement, property relations, and divorce).[23]