Marriage between adoptive parents and adopted children in the Russian Federation

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Published: 02/16/2018

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Marriage is a state-registered union of a man and a woman, which entails mutual rights and responsibilities both towards each other and to joint children (if any). In our country, only marriages registered with the civil registry office are recognized . Legislatively regulated by Section 2 of the RF IC.

• Is a marriage possible between an adoptive parent and an adopted child?
• Are there legal methods for registering a marriage?

When should you not get married?

The law of the Russian Federation establishes several main cases when the official registration of marriage relations is prohibited. They are listed in Article 14 of the RF IC. They will not be able to become spouses:

• Parents and children;
• Children who have at least one common parent;
• Citizens of the Russian Federation who have not filed for divorce and are officially married;
• Incompetent persons who received a similar status during court proceedings due to the discovery of a mental illness;
• Grandparents and grandchildren
• Adopted children and adoptive parents.

How to legally register a marriage

In order to officially register such a marriage, it is necessary to first dissolve the adoption document. This decision is made by the district court at the place of stay or residence of the child (Article 140).

The plaintiff in this matter can be both the adoptive parent and the adopted child. According to Art. 141 of the Family Code, the claim may indicate one of the reasons:

• Financial problems (the inability of the adoptive parent to ensure the financial well-being of the ward).
• Health status.
• Impossibility of living together.
• Mutual consent of the parties.

Both parties must be present in court.

After the termination of the adoption, the participants terminate all closely related relationships with each other, and with the consent of the child, information about his birth and previous name are restored.

After a positive court decision is made, documents are submitted to the civil registry office or MFC in the standard manner.

Possibility of marriage between an adopted child and an adoptive parent

In fact, a child who has gone through the adoption procedure is equal in status to the adoptive parent’s own children. During the judicial process, which necessarily accompanies the process of a child’s transition into a family, the following actions are carried out:

1. The newly adopted family member receives the surname of the adoptive parents, and his patronymic name also changes. If desired, the adoptive parents can change the name.
2. The child is fully assigned all the rights granted to the natural children of the spouses, including hereditary ones.
3. Family ties and obligations to biological parents and other relatives are canceled, unless otherwise specified in a specific court decision. At the same time, the ban on registering marriages between blood relatives remains.

At the same time, adoptive parents are endowed with the rights and responsibilities established by the family code in relation to parents. And the number of prohibitions includes the impossibility of marriage. However, this kind of relationship between the adopted child and the children of the adoptive parent is not prohibited by law.

Therefore, the question of whether marriage is possible between the categories of persons under consideration can be given a categorical negative answer. In the Russian Federation, there is only one exception: marriage ties can be registered if the procedure for canceling the adoption is initiated.

What should the adoptive parent and adopted child do if they want to get married?

Blood or judicial relationship is an obstacle to marriage. A parent cannot be a spouse at the same time. If mutual love really arose between the adoptive parent and the adult adoptee and they want to get married, then first of all the adoption must be canceled.

The age of the adopted child under 16 years old makes this situation criminal. But only if there is a physical relationship between him and the adoptive parent. This is punishable under Article No. 134 of the Criminal Code, even if everything was mutual and voluntary.

A reasonable adult who has adequately fulfilled his role as an adoptive parent will not allow such a turn of events. Even if feelings arose earlier, you need to wait until the adopted person comes of age. Then there will be much fewer obstacles to canceling adoption and getting married.

These court-established relationships can also only be canceled through a judicial procedure. Usual grounds for cancellation:

• chronic drug addiction or alcoholism of a parent;
• child abuse;
• evasion of the adoptive parent's responsibilities.

The initiators of the elimination of social roles can be blood parents, the prosecutor, guardianship and guardianship authorities, and those adopted after the age of 14. Positive reasons for ending the relationship between an adoptive parent and an adopted child, such as marriage, are much less common.

Cancellation of the status of adoptive parent and adopted child for the purpose of marriage occurs when the child has already reached 18 years of age. There is a separate article of the Family Code (No. 144) about the inadmissibility of such actions in relation to adults. But with mutual agreement, this restriction is lifted. So there should be no significant obstacles to the transition to a new relationship.

Without a judicial procedure for dissolving the relationship as an adoptive parent and an adopted child, a marriage in such a couple cannot be concluded. When the bride and groom submit an application to the registry office about their desire to get married, employees of this organization are required to check key data. They must ensure that potential newlyweds are not:

• blood relatives in descending or ascending lines, having one or two common parents;
• adoptive parent and adopted person;
• incompetent;
• married to someone else.

If you submit an application while remaining in the status of an adoptive parent and adopted child, the registry office employee will not commit such a violation and will refuse to register the marriage. When a couple legally freed from their previous relationship submits an application for marriage to the registry office, they must attach a court decision to the documents.

Cancellation of adoption

Article 140 of the RF IC comes into force , indicating the possibility of canceling the adoption. However, it is worth understanding that the described procedure applies only to minor children. For citizens of the Russian Federation who have reached 18 years of age, different rules apply.

Cancellation Conditions

To annul an adoption, the court must be given compelling reasons. Article 141 of the RF IC establishes the following conditions allowing to initiate the cancellation procedure:

• the father and mother do not fulfill their obligations towards children established by current legislation;
• there is abuse of parental rights;
• cruel treatment of an adopted child was recorded;
• adoptive parents are addicted to drugs or alcohol.

However, along with the general conditions of cancellation, there is also the possibility of canceling the adoption due to the occurrence of other circumstances, prescribed in paragraph 2 of Article 141 of the RF IC . Most often, these include the inability to establish normal family relationships between parents and children. The desire to get married can also be included in a similar category, but there are no precedents in judicial practice yet.

Cancellation procedure

Article 140 of the RF IC defines the following procedure for annulment of adoption:

1. Mandatory initiation of legal proceedings. Only this authority can decide to annul the bond between the adopted person and the adoptive parents. If the biological father and mother of the child are currently alive, and they have not been deprived of parental rights in the past, then parental rights and responsibilities are restored in full, including property rights.
2. When considering the case, a prosecutor and a representative of the guardianship authorities must be present.

The adoption is considered canceled on the day the court renders the relevant verdict. In this case, the child loses the property and non-property rights that his status as an adopted child gave him. He will not be able to claim a share of the inheritance, as well as lifetime maintenance by the adoptive parents. Subsequently, the child is transferred to the upbringing of biological parents, and in their absence, or in the event of deprivation of rights to children, to the guardianship and trusteeship authorities.

At the same time, the issue of preserving the patronymic and surname remains under consideration by the court. If the child is already 10 years old, he has the right to make his own decision.

However, marriage between “former” parents and children is permitted from the moment the adoption is annulled. But it is worth remembering that such ties are registered only if the child has reached the age of majority, and in special circumstances defined in Article 13 of the RF IC and decrees of the authorities of the constituent entities of the Russian Federation - 16 years.

If the child has reached the age of majority

The possibility of annulment on the previously stated grounds after the child reaches 18 years of age is lost, so from this age the child is recognized as fully capable and the legal meaning of adoption is lost. However, in some cases, for example, if it is necessary to inherit after biological parents or other blood relatives, as well as to marry an adoptive parent, cancellation is permitted.

It is important to obtain the consent of three parties to the process:

• adopted child;
• blood parents, if at the time of initiation of the procedure they are alive and capable;
• adoptive parents.

After the cancellation of adoption, marriage between persons previously considered parents and children is not prohibited.

The concept and meaning of adoption in Russian family law

At the end of 2008, more than 140 thousand children left without parental care were identified and registered in Russia. Of the total number of identified children, 108.1 thousand children were placed in foster care.

Despite the fact that adoption, according to Art. 123 of the Family Code of the Russian Federation, is a priority form of placement for children left without parental care; citizens of the Russian Federation are in no hurry to adopt children (14.4 thousand children out of the total number of children placed in a family, including foreign adoption, in 2006) , preferring guardianship and guardianship (85.2 thousand children out of the total number of children placed in families in 2006).

In recent years, there has been a trend toward an increase in national adoption and a decline in international adoption: in 2004, 9.4 thousand children - citizens of Russia - were adopted by foreigners, 7 thousand children were adopted by Russians; in 2005 - foreigners - 6.9 thousand and Russians - 7.5 thousand; in 2006 - foreigners - 6.6 thousand and Russians - 7.7 thousand; in 2007 - foreigners - 4.3 thousand and Russians - 13.2 thousand. These statistics indicate that in recent years the state has been paying increased attention to this form of placing a child in a family, implementing state policy to assist in the placement of children in Russia left without parental care. The Plenum of the Supreme Court of the Russian Federation, which adopted on April 20, 2006 the Resolution “On the application of legislation by courts when considering cases of adoption of children,” was of significant importance in matters of adoption.

One of the factors hindering the growth of orphanhood in Russia is the improvement of the regulatory framework for identifying and placing children without parental care in families.

The institution of adoption, which represents a set of legal norms regulating personal non-property and property relations arising in connection with adoption, does not find an unambiguous position in legal science.

The Family Code of the Russian Federation, which came into force on March 1, 1996, enshrines the norms of international law, noting that every child has the right to live and be raised in a family (clause 2 of article 54 of the RF IC). Of all the forms of family education of other people's children, adoption, along with guardianship, trusteeship and foster family, is a priority form of placement for children left without parental care. In contrast to guardianship, trusteeship and foster care, adoption entails the emergence of a full range of rights and obligations for the subjects of this legal fact.

Thus, adoption is a legal action that is associated with the emergence, change and termination of legal relations. The rights and obligations of the adoptive parent and the adopted child arise from the legal fact that gives rise to the law, namely from the date of entry into force of the court decision on the establishment of adoption (clause 3 of Article 125 of the RF IC).

Adoption is a complex legal act. It reflects both the will of persons who expressed a desire to adopt a child, parents who consented to the adoption of their child, the child himself who has reached the age of 10, and other persons established by law, as well as the will of the state expressed in a court decision. Thus, the state will has a certain influence on the emergence of relations generated by adoption. The state, through the judicial authorities, directly expresses its will and participates in the formation of the act of adoption itself. Without his directly expressed will for adoption, relations corresponding to this act cannot arise. On this basis, we can conclude that the court decision is included in the content of the act of adoption as its integral part, and not just an action that governs adoption.

The court decision to establish adoption, being a legal fact, is the initial basis for the emergence of rights and obligations between the adoptive parent and the adopted child, and also has the character of a terminating fact. A court decision entails the termination of pre-existing family and kinship legal relations of the child with his biological parents and their relatives.

Thus, adoption as a legal act is a court decision made at the request of a person wishing to accept a child into his family, in compliance with the legally established conditions and procedure for making such a decision. This legal act gives rise to certain legal consequences, creates a legal state and is aimed at regulating the relationship between the adoptive parent and the adopted child.

As for the question of the content of the term “adoption” in a narrower legal sense, here the opinions expressed at different times by different scientists differ. In fact, both previous legislation and modern legislation do not provide a definition of adoption, and the formulations of legal norms that have been used and are currently in use do not allow us to come to a consensus.

A number of scientists are of the opinion that the relationship between the adoptive parent and the adopted child is equivalent to the relationship between parents and children.

These relationships are based primarily on unconscious love, “alien to any calculation, often undeserved on the part of children and even inexplicable from the point of view of cold reason,” believes D.I. Meyer.

B.L. Haskelberg argues that “the legal relations of adoption do not differ in content from the legal relations that exist between relatives.”

L.A. Kuzmicheva determines that the essence of the relationships generated by adoption, as well as relationships based on consanguinity, is the same, because adoption also creates relationships by virtue of which it is recognized that the adopted are the children of the adoptive parents, and the latter are the parents of these children. These relationships, despite the purely legal way of establishing them, represent, from a social point of view, truly family-kinship (parental) relationships.

S.A. Muratova: “Adoption is a family legal relationship between the adoptive parent and the adopted child, which is equivalent in content to the parental legal relationship.”

L.M. Pchelintseva considers adoption as “a legal act, as a result of which between the adoptive parents (adoptive parent) and his relatives, on the one hand, and the adopted child, on the other, the same rights and obligations arise as between parents and children, as well as their relatives by origin "

M.V. Antokolskaya concludes that “from a sociological point of view, adoption is one of the varieties of social fatherhood and motherhood. However, if the rights and responsibilities of adoptive parents are almost identical to those of parents, then the actual relationships that arise during the adoption process do not always resemble parental ones. In cases where a child considers the adoptive parents to be his parents, their relationship does not differ from that of a family. If a child knows that the adoptive parents are not his parents, the actual relationship between them may be somewhat different.”

Other researchers insist that as a result of adoption, relationships arise that are only similar to related ones, but are in no way equated to related ones. This opinion takes the position that the basis of the parental legal relationship is the origin of one person from another, which they define as kinship.

V.N. Zabrodina argues that “adoption is an artificial legal connection,” while “kinship is primarily a blood connection between persons, which cannot be created by law.” V.N. Zabrodina gives the following definition of adoption: “Adoption is a voluntary, state-sanctioned legal act, secured by secrecy, by virtue of which relations equivalent to parental ones arise between the adopted person (and his offspring) and the adoptive parent (and his relatives).

A. Azizova consistently characterizes adoption as an independent type of family legal relationship. She points out the unacceptability of defining the purpose of the institution of adoption as consisting in the creation of a family connection between adoptive parents and adopted children. The basis of the parental legal relationship is such a legal fact as kinship, i.e. biological connection between people descended from each other or from a common ancestor. Kinship as a legal act always has a natural biological origin, characterized by common blood. “It is impossible to agree with the opinion that supposedly kinship is not always based on biological origin and that kinship as a relationship between people is always of a public, social nature. We believe that there is no need to escape reality. The concept under consideration leads to a simplification of family legal relations, leveling out legal relations and institutions of family law that are diverse in their legal nature.”

G.F. Shershenevich wrote that “under the name of adoption is meant the recognition of the legal status of legitimate children by strangers.”

Thus, only the assertion itself that adoption gives rise to legal relations remains indisputable. But what kind of legal relationship is it - parental or similar to parental? There is no clear answer to this question in the current family legislation of Russia.

In my opinion, adoption gives rise to a special type of legal relationship that cannot be called either parental or similar to parental legal relationships.

Given the existing secrecy of adoption (Article 139 of the RF IC), there can be no talk of parental relations. A child who has no idea about his real origin and the existence of biological relatives is not immune from the possibility of marrying close relatives in the direct line, as well as natural parents, full and half brothers and sisters, which is prohibited by Russian family law. Marriages between close relatives can have negative medical and biological consequences in the form of the birth of children with serious illnesses. The current family legislation provides for special measures aimed at maintaining the secrecy of adoption, and with this formulation of the issue it is extremely difficult to trace the fate of the adopted child, even from his relatives.

It is difficult to call the legal relations generated by adoption similar to parental ones.

When adoption is cancelled, there is a real possibility of marriage between former adoptive parents and adopted children, but when parental rights are deprived, such marriages are impossible.

To cancel an adoption, it is not necessary that the parents be guilty of the child, for example, when abandoning a sick child about whose health condition the new parents were poorly informed.

Another argument not in favor of recognizing the legal relationship between the adopted person and the adoptive parent as parental or similar to parental is the issue of inheritance. A child in respect of whom parents have been deprived of parental rights retains property rights based on the fact of kinship with parents and other relatives, including to receive an inheritance. When the adoption is cancelled, the mutual rights and obligations of the adopted child and the adoptive parents and relatives of the adoptive parents cease. The only thing a child can count on after the adoption is canceled is financial support (alimony) from the former adoptive parents.

Parents can be restored to parental rights if they have changed their behavior or lifestyle (clause 1 of Article 72 of the RF IC), but the cancellation of adoption is an irreversible process.

Parents who have been deprived of parental rights in relation to a particular child, upon the birth of a new child, are again endowed with full rights and responsibilities in relation to the newborn. The situation is completely different when the adoption is canceled due to abuse of the parental rights of the adoptive parents. Such persons no longer have the right to adopt a child if the previous adoption was canceled by the court due to their fault (Clause 1 of Article 127 of the RF IC).

I like the opinion of O.Yu. Kosova, that one of the criteria for distinguishing adoption from parental legal relations is the special procedures established by law for registering the legal status for adoptive parents and parents, respectively, as well as the grounds for termination of parental legal relations and adoption.

We conclude that adoption is a special type of legal relationship that has in its subjective composition the grounds for the emergence, termination and maintenance of legal ties between the adoptive parent and the adopted child, different from parental legal relationships regulated by the norms of family law.

The current law allows us to talk about the internal content of adoption, its legal nature. The definition of the concept of “adoption” and its legal nature are interrelated, but not identical concepts. The degree of their relationship is different, and this is clearly manifested when analyzing adoption as a legal institution, as a legal fact, as a system of legal relations. It is not particularly difficult to determine the content of the concepts of these purely legal phenomena. And on the contrary, in some cases, attempts to unambiguously determine the legal nature of the “form of education” and “form of organization” are unsuccessful. The assessment of such a complex phenomenon as a form of education is not limited to identifying its legal nature and should not be identified with the “right to education.” The right to education is understood in different ways, namely:

• as a complex subjective right of parents to raise their children and at the same time as their legal duty aimed at raising the latter;
• as an element of the content of a parent’s subjective right to education;
• as a legal relationship that arises between parents and children in connection with the upbringing of the latter;
• as a system of norms regulating educational relations.

The main difference between the “right to education” and the “form of education” is that the latter is a complex, multifaceted phenomenon, including a number of aspects (psychological, sociological, medical, pedagogical, etc.). This circumstance causes difficulties in determining the legal nature of this concept.

Adoption is a form of “maximum legal assimilation” of a minor in someone else’s family, corresponding to the everyday, psychological, spiritual closeness that is usually established in life with this form of accepting children into the family.

The open-ended nature of legal relations arising during adoption (inheritance rights - Article 1147 of the Civil Code of the Russian Federation, the right to mutual alimony - clause 4 of Article 143 of the RF IC) also determines a special approach to choosing this form of raising children left without parental care. Thus, adoption should not be established if it is assumed that the parents will continue to raise their child. As a rule, adoption is established to ensure the proper upbringing of a child deprived of parental care. At the same time, there are situations when, in order to protect the interests of the child, it is advisable to transfer him to the family of the future adoptive parent before a decision on adoption is made.

Adoption as a form of placement for children left without parental care is different from other forms of placement for children:

1) on the basis of the emergence of legal relations;

2) by the nature of legal relations;

3) on the content of the rights and obligations of subjects.

The basis for the emergence of legal relations during adoption is the will of the person and the court decision that has entered into legal force. In a foster family, during foster care, the basis for the emergence of legal relations is an agreement; when establishing guardianship and trusteeship - the decision of the administration.

The differences between the indicated forms of placement of children left without parental care are also manifested in the nature of the legal relations that arise. Legal relations of adoption are characterized by the fact that they are indefinite, and all other legal relations that arise within the framework of other forms of placement of a child are urgent. So, according to paragraph 2 of Art. 145 of the RF IC, guardianship is established over children under the age of 14 years, and guardianship over children aged 14 to 18 years. In accordance with paragraph 2 of Art. 40 of the Civil Code of the Russian Federation, when a minor ward reaches 14 years of age, guardianship over him is terminated, and the citizen performing the duties of a guardian becomes the guardian of the minor without an additional decision on this. Guardianship of a minor, in turn, is terminated without a special decision when the minor ward reaches 18 years of age (Clause 3 of Article 40 of the Civil Code of the Russian Federation).

A minor child is transferred to a foster family for the period specified in the agreement on the transfer of the child to a family for upbringing. Despite the fact that foster family as a form of placement for children left without parental care has not yet been widely used in Russia, nevertheless, we can already talk about some positive results achieved in the regions. Thus, in accordance with the Decree of the Government of the Russian Federation of July 17, 1996 N 829 “On foster families” and the Law of the Tomsk region “On the social protection of orphans and children left without parental care in the Tomsk region”, the guardianship and trusteeship authorities are working on creating foster families. In total, there are 8 foster families in the region, in which 20 children are being raised, of which 5 foster families were created in 2000. In total, 3,093 children were placed in foster families in Russia in 2004, which is 3.2% of the total number of children, placed in families.

Adoption can also be distinguished from other forms of placement of children in terms of the content of the rights and obligations of the subjects of the compared relationships.

Thus, guardians are the legal representatives of their wards. They are obliged to take care of the child, educate him, and protect his rights and interests (Articles 148, 148.1 of the RF IC). For adoptive parents, raising a child is their main job, for which they receive compensation, therefore, unlike adoptive parents, they can be considered “professional educators.” In Art. 152 of the RF IC, clause 32 of the Decree of the Government of the Russian Federation “On Adoptive Family” it is stated that “the amount of remuneration for adoptive parents... is established by the laws of the constituent entities of the Russian Federation.” However, the use of the term “labor” in these acts does not mean at all that “the legal relations of adoptive parents and the guardianship and trusteeship authority are regulated by labor legislation.”

On the contrary, an analysis of the subject of the agreement on the transfer of a child shows that the executing party is obliged to devote himself entirely to the child, educate him, and prepare him for an independent life. Such a wide range of responsibilities, together with the conditions for their fulfillment, does not allow us to say that the adoptive parent is required to perform any specific job function. According to Art. 56 of the Labor Code of the Russian Federation, an employment contract is an agreement under which “the employee undertakes to personally perform work in a certain specialty, qualification or position, subject to internal labor regulations.” The foster parent, as is known, is free to choose the time for performing his duties, therefore the process of the foster parents fulfilling their duties towards the child does not depend on the regime and daily routine. It must be emphasized that adoptive parents perform their duties only personally; therefore, it is unacceptable to “replace” an adoptive parent with another person if he is unable to fulfill his duties for any reason.

Therefore, it seems that in this case it is not labor relations, but civil relations, an obligation to provide services (Article 779 of the Civil Code of the Russian Federation). As is known, a service is understood as an activity aimed at satisfying needs, the useful result of which is consumed in the process of its implementation. Foster parents provide a service for raising children, for which they receive a reward rather than a salary. Thus, adoptive parents act as providers of services, and the child, accordingly, acts as a recipient of such services. Between adoptive parents and adopted children, unlike adoptive parents and adopted children, no alimony relations arise; they do not have the right to inherit after each other, as well as after close relatives of adoptive parents and adopted children. The adopted child retains his first, middle and last names, but upon adoption they can be changed. Legal relations regarding adoption are established for life, they are indefinite and can only be terminated as a result of the cancellation of adoption.

As already noted, the concept of adoption is complex, multidimensional, and ambiguous.

In Soviet legal literature, adoption has traditionally been viewed as an independent family law institution designed to ensure proper family education of children who have lost parental care.

In modern characterization of adoption as a legal institution, it is necessary to keep in mind two, in our opinion, important theoretical provisions. Firstly, the numerous norms contained in complex regulations devoted to adoption are different in their sectoral affiliation and therefore, in unity, represent a complex institution of legislation. Secondly, Sect. VI RF IC, based on its structure, can be presented as an institution of family law, and the rules on adoption, guardianship and guardianship, foster family contained in it - as its sub-institutions (Chapters 19 - 21 RF IC). Thus, in a narrow sense, the rules on adoption are a subinstitution of family law.

Chapter 18 of the RF IC, federal laws and other legal acts containing rules on the identification, registration and placement of children left without parental care are a kind of common part for the three above-mentioned sub-institutions, since these rules serve them and are applied in determining specific provisions within each sub-institute. These sub-institutions are unequal to each other both in content and in their relationship with the norms of other industries. For example, the rules on guardianship and trusteeship are inextricably linked with the provisions of Art. 31 - 40 Civil Code of the Russian Federation. At the same time, the rules on adoption, especially those relating to its procedure, are more related to the sphere of administrative law. So, in accordance with Art. 3 of the Federal Law of April 16, 2001 N 44-FZ “On the state data bank on children left without parental care”, work has been carried out to create both federal and regional banks that keep records of children left without parental care.

The social purpose of the institution of adoption is to fully respect the rights and legitimate interests of minor children, as well as the possibility of realizing a sense of motherhood and paternity by potential adoptive parents.

It is the natural desires to satisfy these feelings that underlie specific acts of adoption. Of course, the norms of the institution of adoption are intended not only to regulate relations involving childless citizens; citizens who have their own children can also be adoptive parents and often become one.

The service role of the institution of adoption is to provide favorable conditions that promote the harmonious development of the child, making it possible to provide real assistance, first of all, to children left without parental care.

Adoption is also understood as a legal fact established in court and which is the basis for the emergence of a complex of legal relations similar in content to parental ones. This means that as a result of adoption, between the adoptive parents and his relatives, on the one hand, and the adopted child and his offspring, on the other, the same rights and obligations arise as between parents and children, as well as relatives of the adoptive parents by origin.

In legal theory, a legal fact is understood as a certain circumstance with which the law connects the emergence, change, or termination of specific legal relations. The traditional concept of a legal fact in the theory of family law is considered based on the specifics of family relationships. In family law, one of the defining legal facts is kinship, which unites subjects of law by virtue of their origin from each other (or from a common ancestor), certified in the manner prescribed by law. This means that a feature of legal facts in family law is their natural biological basis.

While generally agreeing with the determining role of kinship, one cannot help but note the specificity of other facts (marriage, adoption, etc.). Family legal relations are characterized by strict personification of their subjects, which determines the purely personal nature of these relations, as well as the inalienability and non-transferability of the rights and obligations generated by them to other persons.

The peculiarity of legal facts in family law distinguishes them from legal facts in civil law, where the personality and family legal role of the subject, as a rule, do not have legal significance (Article 8 of the Civil Code of the Russian Federation). The general basis giving rise to the legal relationship of adoption is the factual composition, which includes:

• expression of the will of the candidate adoptive parent for adoption;
• a court decision on adoption that has entered into legal force.

Sometimes the specified elements of the actual composition can be supplemented by other facts, for example, the will of certain persons. Therefore, in each specific factual composition that gives rise to a legal relationship regarding adoption, there are mandatory facts, without which not a single legal relationship of this type can arise (the will of a person to adopt and a court decision). In some cases, in addition to these facts, other additional facts are required - the consent of the child’s parents, the adoptive parent’s spouse, or the child himself who has reached the age of 10 years. These facts are not mandatory for each factual composition (they are additional in relation to the mandatory facts), but are necessary in cases where the law combines them into a factual composition.

Despite the different nature of legal facts in branches of law, they are always united by their focus on the emergence, change or termination of certain legal consequences.

In this sense, adoption as a legal fact entails the following types of legal consequences:

• legal relations with the adopted person and the adoptive parent (the spouse of the adoptive parent in cases where his consent to adoption is required) (clause 1 of Article 133 of the RF IC);
• legal relations of the adopted person with the relatives of the adoptive parent;
• legal relations of the adopted person, his offspring in relation to the adoptive parent, his relatives;
• legal relations of the adopted person with his parents and other relatives by origin.

Thus, the legal consequences are expressed both in the emergence of new family legal relations with the participation of the adopted child and the adoptive parent, the adopted child with other relatives of the adoptive parent, the adopted child and his offspring, and in the complete or partial termination of pre-existing family legal relations. Therefore, adoption as a legal fact belongs to the category of law-establishing and law-terminating facts at the same time. In other words, the legal fact of adoption belongs to the category of universal legal facts.

Legal facts as the basis for the emergence of certain legal relations must be distinguished from legal acts that have certain specifics.

It is known that legal acts are divided into certain types: normative, i.e. containing rules of law that regulate a certain area (type) of social relations, and individual ones that give rise to specific rights and obligations for specific subjects of law. Among individual acts, the main place is occupied by acts of application of legal norms, adopted by competent authorities on a specific issue and authoritatively establishing a certain legal state.

In addition, legal acts include transactions, settlement agreements and, of course, a court decision.

Consequently, the assessment of adoption as a legal fact is not limited to defining it as such on the basis of the legal consequences generated. Adoption is a complex and very unique act of applying the rules of law (factual composition), in which individual legal facts perform unequal functions.

The system of legal facts, as well as the legal relations arising from them, is most easily analyzed within the framework of the adoption procedure.

The adoption procedure begins with the fact that a citizen who wants to adopt a child submits an application to the guardianship and trusteeship authority at his place of residence.

The latter is obliged to give the citizen complete information about adoption, provide information about children left without parental care, and advise on the placement of such children in a family. The citizen, in turn, has the subjective right to demand the provision of relevant information.

Initially, a simple, elementary legal relationship arises, informational in essence, administrative-legal in nature.

This is where the dynamics of a complex system of legal relations begins. The subjects of this legal relationship are the guardianship and trusteeship authorities and the citizen, who has both the right to demand the provision of the necessary information and the right to appeal the actions of the authorities refusing to provide it. In addition, a citizen can appeal the actions of a regional or federal operator, in particular for failure to provide information about a child (Clause 4, Article 10 of the Federal Law of April 16, 2001 N 44-FZ). Based on the application and the documents attached to it (certificate of employment, medical certificate, copy of the marriage certificate, etc.), the guardianship and trusteeship authority prepares a conclusion, which is the basis for registering the citizen as a candidate adoptive parent.

Consequently, all these documents are only a necessary prerequisite for the emergence of so-called registration legal relations, including the registration of a person as a candidate adoptive parent. The guardianship and trusteeship authority is obliged to accept documents from a citizen and review them within a prescribed period, and the citizen has the right to submit them.

Thus, placement in a family, in the opinion of many, is preferable to raising a child in a child care institution. A family accepting a child left without parental care has more opportunities to care for him and treat him. It has been noticed that in the first months of their stay in the family, children adopted from children's institutions develop surprisingly quickly; Along with the formation of a sense of confidence and the development of interpersonal relationships, their speech significantly improves and their horizons expand.

In practice, this means that the family is a unique social community, most adapted to the biopsychic characteristics of a person, where, with favorable relationships, all his needs are realized. Domestic and foreign experience shows that being in a boarding school most likely reduces the potential of a child’s mental and social development and limits his ability to successfully integrate into society.

Underwater rocks

Adoption is established for an indefinite period and after the child reaches the age of majority, its cancellation is impossible, because the legal meaning is lost due to the child’s full civil capacity.

The only circumstance for the termination of such relationships is the mutual consent of the parties, as well as the consent of the parent or parents of the child, if they are alive, are not deprived of parental rights and are recognized as capable (Article 144 of the Family Code).

If the biological parents have died, lost parental rights, or are incapacitated, then the court can also cancel the adoption by agreement of the parties.

How to get married between relatives?

Although in practice such marriages are quite rare, from a legal point of view they are still possible.

For example, it is possible to enter into a marriage between an adoptive parent and an adopted child if the fact of adoption is canceled (only possible by a court decision).

The legislation has not established a time limit for the cancellation of adoption, but only the reasons why the fact of adoption can be invalidated are regulated (mutual consent to cancel the adoption, inability to live together, violation of the interests of the child).

So, does an adoptive parent have the right to marry an adopted child in 2021? According to the law of the Russian Federation, effective adoption is an obstacle to marriage. However, recently innovations have been made in the legislation.

For example, marriage between an adopted child of an adoptive parent and his own child is now permitted. It is also possible to marry adopted children from different biological parents living in the same family.

Video: Circumstances preventing marriage