Full legal capacity arises upon reaching

Under civil capacity in accordance with paragraph 1 of Art. 21 of the Civil Code of the Russian Federation understands the ability of a citizen, through his actions, to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them. Civil capacity arises in full with the onset of adulthood, that is, upon reaching the age of eighteen. From this age, a citizen has the right to independently make any type of transactions (transactional capacity) and independently bears full responsibility for his obligations (tortual capacity).

In some cases, full legal capacity arises before the age of eighteen, namely: - upon marriage, - upon emancipation.

The current general marriageable age in the territory is Russian Federation coincides with the age of full civil capacity - 18 years. Due to the fact that actual marital relations develop at an earlier age, in accordance with paragraph 2 of Art. 13 Family Code If there are good reasons, local governments have the right to allow persons who have reached the age of sixteen to marry at their request. Decline in marriage

6 Gazette of the Russian Federation, 1992, No. 33, Article 1913.

age is carried out by local administration authorities at the place of residence of persons entering into marriage.

Reducing the age of marriage below sixteen years is possible only in those constituent entities of the Russian Federation where a law has been adopted establishing the procedure and conditions under which marriage, as an exception, may be permitted before reaching the age of sixteen. Such laws have been adopted in 22 constituent entities of the Russian Federation: Kaluga, Moscow, Murmansk, Novgorod, Oryol, Rostov, Ryazan, Tver regions and other constituent entities of the Russian Federation.

Currently, there are no uniform norms in legislation that would define uniform approaches to the conditions for early marriage. Thus, in three constituent entities of the Russian Federation (the Republic of Bashkortostan, Novgorod and Oryol regions) age restrictions are absent altogether, that is, marriage can be permitted to a person under 14 years of age. In other regions of the Russian Federation, reducing the age is possible to 14 or 15 years.

The legal capacity acquired as a result of marriage is retained in full even in the event of divorce before reaching the age of eighteen. If a marriage is declared invalid (for example, in a fictitious marriage, in a marriage between close relatives), the court may decide that the minor spouse loses full legal capacity from the moment determined by the court.

Another basis for acquiring full legal capacity is emancipation.

Emancipation is the declaration of a minor who has reached the age of sixteen as fully capable by decision of the guardianship and trusteeship authority - with the consent of both parents, adoptive parents or trustee, or in the absence of such consent - by a court decision (Article 27 of the Civil Code of the Russian Federation).

The grounds for emancipation are: - work under an employment contract, including contract, - or with the consent of parents, adoptive parents or guardian, occupation

entrepreneurial activity.

From the moment a minor is recognized as fully capable, the teenager has the right to independently carry out any types of transactions, and parents, adoptive parents and trustees are not liable for the obligations of the emancipated minor, in particular for the obligations arising from transactions as a result of causing harm to them.

Along with full legal capacity, the Civil Code of the Russian Federation distinguishes: - partial legal capacity of minors (from 6 to 14 years),

Partial legal capacity of adolescents (from 14 to 18 years old), - limited legal capacity, - incapacity.

Partial legal capacity of minors (from 6 to 14 years old). Children under six years of age are legally incompetent and cannot enter into transactions. Parents, adoptive parents, and guardians perform all legal actions for them.

Minors aged six to fourteen years have the right to independently:

1) small household transactions; 2) transactions aimed at obtaining benefits free of charge, which do not require notarization or state registration;

3) transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal (clause 2 of Article 28 of the Civil Code of the Russian Federation). The remaining transactions on behalf of minors are carried out by their parents, adoptive parents and guardians.

Property liability for transactions of a minor, including transactions made by him independently, is borne by his parents, adoptive parents or guardians, unless they prove that the obligation was violated through no fault of theirs. These persons, in accordance with the law, are also responsible for damage caused by minors.

Partial legal capacity of adolescents (from 14 to 18 years old).

Teenagers aged fourteen to eighteen years can independently carry out not only those transactions that are permitted for minors, but also

1) manage your earnings, scholarships and other income;

3) make deposits in credit institutions and manage them. Upon reaching the age of sixteen, minors also

have the right to be members of cooperatives (clause 2 of article 26 of the Civil Code of the Russian Federation).

Teenagers make other transactions with the written consent of their legal representatives - parents, adoptive parents or guardian. A transaction made by such a minor is also valid with its subsequent written approval by his parents, adoptive parents or guardian. So, when receiving an apartment as a gift, a teenager independently signs

a gift agreement as a donee, but with the written consent of his parents, adoptive parents or trustees.

Minors aged fourteen to eighteen years are independently liable for property transactions. Minors aged fourteen to eighteen years are independently responsible for the harm caused on a general basis. If a minor does not have income or other property sufficient to compensate for the harm, the harm must be compensated in full or in the missing part by his parents (adoptive parents) or guardian, unless they prove that the harm arose not through their fault.

Limited capacity. An individual may be limited in legal capacity only by a court decision and only in cases provided for by federal law. The Civil Code of the Russian Federation establishes two cases of restricting a citizen’s legal capacity.

1. The first case concerns adults with full legal capacity. According to Art. 30 of the Civil Code of the Russian Federation, a citizen who, due to the abuse of alcoholic beverages or drugs, puts his family in a difficult financial situation, may be limited by the court in his legal capacity. Abuse of alcoholic beverages or drugs, which gives grounds for limiting the legal capacity of a citizen, is such excessive or systematic use of them, which is in conflict with the interests of his family and entails unaffordable expenses cash to purchase them, which causes financial difficulties and puts the family in a difficult situation. The presence of earnings or other income from other family members is not in itself a basis for refusing to satisfy the applicant’s request if the family does not receive the necessary material support from the person who abused alcohol or drugs or is forced to support him in whole or in part.

Guardianship is established over a citizen recognized as having limited legal capacity.

Family members of a citizen who abuses alcohol or drugs include: spouse, adult children, parents, other relatives, disabled dependents who live with him and run a common household. A single citizen without a family cannot be limited in legal capacity at the request of neighbors or other persons.

A citizen with limited legal capacity has the right to independently carry out only small everyday transactions. commit

other transactions, as well as receive earnings, pensions and other income and dispose of them only with the consent of the trustee. However, such a citizen independently bears property liability for the transactions he has made and for the damage he has caused.

The most controversial issues judicial practice for this category of cases are disclosed in Resolution of the Plenum of the Supreme Court of the Russian Federation of May 4, 1990 No. 4 “On the practice of consideration by the courts of the Russian Federation of cases on limiting the legal capacity of citizens who abuse alcoholic beverages or narcotic substances”7.

2. The second case of restriction of legal capacity affects minors aged fourteen to eighteen years in terms of managing their income. At this age, a child cannot always manage his income wisely. If there are sufficient grounds, the court, at the request of the parents, adoptive parents or trustee or the guardianship and trusteeship authority, may limit or deprive a minor of the right to independently dispose of his earnings, scholarship or other income, except for cases where such a minor has acquired full legal capacity. Grounds for restriction of legal capacity may include unreasonable spending wages, scholarships, to the detriment of one’s health, for example, alcohol, drugs, gambling, as a result of a teenager’s involvement in religious sects, etc.

Incapacity. A citizen is legally incompetent for up to six years. In addition, a citizen may be declared incompetent by a court decision, provided that, due to a mental disorder, he cannot understand the meaning of his actions or manage them (Article 29 of the Civil Code of the Russian Federation). The assessment of a citizen’s health is given not by the court, but by a forensic psychiatric examination, which is carried out on the basis of the Law of the Russian Federation of July 2, 1992 “On psychiatric care and guarantees of the rights of citizens during its provision”8.

But only a court has the right to declare a citizen incompetent. Restriction of the rights and freedoms of persons suffering from mental disorders only on the basis of a psychiatric diagnosis, facts of being under dispensary observation in a psychiatric hospital or in a psychoneurological institution for social security or special education is not allowed. Officials guilty of such violations are liable in accordance with the legislation of the Russian Federation and the constituent entities of the Federation (clause 3

7 "Collection of decisions of the Plenum of the Supreme Court of the Russian Federation", Moscow, publishing house "Legal Literature", 1994.

8 Gazette of the Russian Federation, 1992, No. 33, Article 1913.

Art. 5 of the Law “On psychiatric care and guarantees of the rights of citizens during its provision”). A citizen has the right to appeal the diagnosis given to him in court.

Guardianship is established over a citizen declared incompetent. An incapacitated citizen has no right to enter into transactions. Otherwise, such transactions are void. On behalf of a citizen declared incompetent, transactions are carried out by his guardian.

Responsibility for harm caused by a citizen recognized as incompetent is borne by his guardian or organization obligated to supervise him, unless they prove that the harm arose not through their fault.

More on topic 2.3. Legal capacity of individuals:

1. Lecture 2. Individuals as subjects of civil legal relations 2.1. Concept, elements and types of civil legal relations. 2.2. Legal capacity of individuals. 2.3. Legal capacity of individuals. 2.4. Place of residence of the citizen. Recognizing a citizen as missing and declaring him dead.
2. § 82. Legal capacity of persons with mental, moral and physical disabilities
3. A. M. NECHAYEV" (Leading employee of the Institute of Civil Engineering of the Russian Academy of Sciences, Doctor of Legal Sciences.) LEGAL CAPACITY AND LEGAL CAPACITY OF INDIVIDUALS AS SUBJECTS OF CIVIL RIGHTS
4. § 7. General concept of a person (and a physical person in particular). The beginning and end of a natural person His legal capacity and legal capacity
5. § 18 Modifications of the legal capacity of individuals according to physical and social conditions.
6. 4. Influence on the right and legal capacity of physical conditions
7. 4. Verification of the legal capacity of citizens and the legal capacity of legal entities participating in transactions.
8. Examination of the legal capacity of drug abusers is notoriously difficult.

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Official text:

Article 21. Legal capacity of a citizen

1. The ability of a citizen, through his actions, to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them (civil capacity) arises in full with the onset of adulthood, that is, upon reaching the age of eighteen.

2. In cases where the law allows marriage before the age of eighteen, a citizen who has not reached the age of eighteen acquires full legal capacity from the time of marriage.

The legal capacity acquired as a result of marriage is retained in full even in the event of divorce before reaching the age of eighteen.

If a marriage is declared invalid, the court may decide that the minor spouse loses full legal capacity from the moment determined by the court.

Lawyer's comment:

A significant clarification has been made to the definition of the concept of legal capacity: legal capacity is not only the ability of a citizen to acquire civil rights through his actions, but also to exercise them; not only the ability to create civic responsibilities for oneself, but also to fulfill them.

The content of legal capacity includes the ability to perform both lawful and unlawful actions. Lawful transactions include transactions and other actions that do not contradict the law. When certifying a transaction that requires notarization, the notary is obliged to find out the legal capacity of the citizens participating in the transaction (Article 43 of the Fundamentals of Legislation on Notaries).

Wrongful actions (torts) give rise to obligations from causing harm, i.e. the obligation of a citizen who has caused property damage to another person through his unlawful actions to compensate for this damage. In addition, if a citizen’s personal non-property rights are violated or if there is an infringement on other intangible benefits belonging to him, as well as in other cases provided for by law, the court may impose on the violator the obligation to compensate for moral damage.

The law connects the emergence of full legal capacity with the onset of adulthood, i.e. upon reaching the age of 18. Incapacitated citizens acquire civil rights and create obligations not through independent actions, but through the actions of capable persons - legal representatives: parents, adoptive parents, guardians or trustees.

Full legal capacity is acquired upon reaching the age of 18, with the exception of cases provided for by law, when a minor acquires legal capacity before the age of 18 (if married before the age of 18 and emancipation, Article 27 of the Civil Code).

In contrast to the Civil Code of the RSFSR, Article 21 of the Civil Code of the Russian Federation clarifies that if the marriage is dissolved before the spouse reaches 18 years of age, the legal capacity acquired as a result of the marriage is retained in full. If the marriage is declared invalid by the court, the issue of whether the minor spouse retains full legal capacity will be decided by the court, based on the interests of the minor spouse and other circumstances (for example, whether the spouses have a child, etc.).

The very fact of invalidating a marriage in which one of the spouses is a minor cannot automatically deprive that citizen of full legal capacity. Civil capacity, like legal capacity, is a kind of subjective right and is protected by law.

03.09.2008(15451 )

PROBLEM OF CAPACITY IN CHARACTERISTICS

SUBJECTIVE COMPOSITION OF THE MARRIAGE CONTRACT

N.F. Zvenigorodskaya

Zvenigorodskaya N.F., Associate Professor of the Department of Civil Law Disciplines of Krestyansky state university them. Cyril and Methodius, candidate of legal sciences.

The legal definition of the concept of a marriage contract is given in Art. 40 of the Family Code: a marriage contract is an agreement between the persons entering into marriage or an agreement between the spouses that defines the property rights and obligations of the spouses during the marriage and (or) in the event of its dissolution.

From the meaning of Art. 41 of the Family Code follows that a marriage contract can be concluded both before and after the registration of marriage. According to L.M. Pchelintseva, “subjects of the marriage contract, as follows from Art. 40 of the IC, there can be both persons entering into marriage (that is, citizens who are not yet spouses, but intending to become one), and persons who have already entered into marriage - spouses.” S.N. Bondov believes that “the parties to a marriage contract are both the persons entering into marriage and the spouses.” A.A. Ivanov also believes that “the parties to the contract are persons wishing to get married or spouses.” In relation to a marriage contract, B.M. points out the “circle of subjects who can conclude it” and the “subject composition of the agreement”. Gongalo and P.V. Krasheninnikov.

We believe that it is necessary to distinguish between the subjects of the marriage contract, the parties to the marriage contract and the persons who can enter into it (Article 40 of the Family Code - persons entering into marriage or spouses). Depending on who specifically enters into the marriage contract - persons intending to get married or spouses, it can be classified.

However, in our opinion, only spouses can be the subjects of a marriage contract - the subjects of legal relations based on a marriage contract. In this case, the marriage contract is considered as a marriage legal relationship.

The entry into force of a marriage contract, which regulates the property relations of the spouses (and not the persons entering into marriage), must be preceded by the conclusion of the marriage. It is after the registration of marriage that a legal relationship based on a marriage contract arises, and the persons who entered into a marriage contract become its subjects. This is where the derivativeness of property regulation comes into play. family relations from the regulation of personal non-property relations, which is typical for relations regulated by family law. The regulation of property relations between spouses by a marriage contract is aimed at fulfilling the tasks specified in Art. 2 SK. This also confirms that the prenuptial agreement is family law in nature.

In characterizing the subject composition of a marriage contract, legal capacity is of particular importance.

Since only spouses can be the subjects of a marriage contract, the ability to conclude it should be linked to the ability to marry. Therefore, a marriage contract can be concluded between legally capable citizens who have reached marriageable age, i.e. 18 years old (Clause 1 Article 12, Clause 1 Article 13 SK).

M.V. Antokolskaya believes that a person who has not reached marriageable age acquires the right to independently enter into a marriage contract from the moment a decision is made to reduce his marriageable age. A.M. Nechaeva argues that “the direct dependence of the agreement on the fact of the existence of marriage (or the intention to formalize it in the manner prescribed by law) means that such an agreement can be concluded by parties who entered into marriage before the age of marriage, as well as those who, as an exception, taking into account under special circumstances, it is permitted to marry earlier.” According to L.M. Pchelintseva, “if a person has not reached marriageable age, but has received permission from a local government body to get married, then he can enter into a marriage contract before registering the marriage with the written consent of his parents or guardians (Article 26 of the Civil Code).” After marriage, the minor spouse, believes L.M. Pchelintsev, acquires full civil capacity (Article 21 of the Civil Code), which means he has the right to conclude a marriage contract on his own. Agreeing that “from the point of view of formal logic, from the moment of receiving the appropriate permission, it is possible to conclude a marriage contract,” B.M. Gongalo, P.V. Krasheninnikov believe that “in this case there is no coincidence of legal logic with formal logic. The fact is that, by virtue of clause 2 of Art. 21 of the Civil Code of the Russian Federation, in cases where the law allows marriage before the age of 18, a citizen under 18 years of age acquires full legal capacity from the time of marriage. Therefore, in appropriate cases, it is impossible to conclude a marriage contract before registering a marriage.” This position It seems to us more justified, since it complies with current legislation. Thus, a minor bride and (or) groom who have received the appropriate permission to register a marriage have the right to independently enter into a marriage contract only after marriage, since in accordance with paragraph 2 of Art. 21 of the Civil Code of the Russian Federation become fully capable only from the moment of marriage registration. Until this moment, the civil legal status of minors from 14 to 18 years of age is limited by Art. 26 of the Civil Code, according to which all transactions, with the exception of those mentioned in paragraph 2 of this article, are carried out with the written consent of their legal representatives.

In family law we do not find the concepts of family legal capacity and capacity. The legal literature indicates that the genetic connection between civil law as a core branch and the industries that emerged from it presupposes the presence of general concepts borrowed by these branches from civil law. But there is another opinion on this issue. In particular, Ya.R. Webers believed that the corresponding civil law categories cannot be mechanically transferred to family law.

In legal science, the family capacity of citizens is understood as their ability by their actions to acquire and exercise family rights, as well as create family responsibilities for themselves and fulfill them. Full family capacity arises for citizens when they reach the age of majority, i.e. upon reaching the age of 18. Let's call it general rule. However, citizens have the opportunity to independently exercise many family rights and responsibilities even before reaching this age. Thus, in the event of marriage of persons for whom the marriageable age has been reduced (Article 13 of the Family Code), these persons independently exercise all the rights and obligations of the spouses. Therefore, the general rule of civil law contained in paragraph 2 of Art. 21 of the Civil Code, is not only an exception to the general rule of civil capacity. We think that the legislator in paragraph 2 of Art. 21 of the Civil Code also meant family capacity. According to L.B. Maksimovich, “family law not only uses the civil law concept of legal capacity and legal capacity. Changes in civil capacity have a direct impact on family relationships.”

Increasingly, in the science of family law there are references to marital capacity, the presence of which is associated with the possibility of concluding a marriage and a prenuptial agreement. We believe that the legislator, having established in Art. 13 of the UK, the age of marriage is 18 years, thereby determining the onset of marital capacity.

Inextricably linked with the subject matter of a marriage contract concluded before the marriage is registered is the question of the fate of the contract itself if the marriage is not registered for some reason. A.M. Nechaeva believes that in this case “there will be no marriage contract; more precisely, if it was concluded earlier, it will not have legal significance.” NOT. Sosipatrova believes that the marriage contract should be recognized as terminated, again drawing an analogy with the preliminary contract; if the main agreement is not concluded within the specified period, then the preliminary agreement is terminated (clause 6 of Article 429 of the Civil Code). According to M.G. Masevich, if the marriage is not registered, the marriage contract is annulled. We believe that this issue cannot be resolved by annulment of the marriage contract, since the legislator has not established a deadline for registering a marriage by those who have already entered into a marriage contract, but have not registered the marriage. According to Explanatory dictionary to annul means to declare invalid, to cancel. Therefore, annulment of a marriage contract is possible only if the parties themselves determine in the contract the period during which they intend to register the marriage and the consequences of its failure, indicating that then the contract will be annulled.

Civil legislation (Article 27 of the Civil Code), if available certain conditions and in accordance with the established procedure, a citizen who has reached the age of 16 can be recognized as legally competent (emancipated). Emancipation is the declaration of a minor who has reached the age of 16, working under an employment contract or engaged in entrepreneurial activity with the consent of his parents, as fully capable. “These actions serve as sufficient evidence that the minor is able to independently make decisions on property and other civil matters, i.e. has reached the level of maturity usually achieved upon reaching adulthood.” The purpose of emancipation is to give a minor participant in civil transactions full civil legal status.

The question of what scope of rights and obligations is vested in an emancipated person is controversial in legal science. L.M. Pchelintseva, M.V. Antokolskaya believe that minors emancipated in the prescribed manner have the right to independently enter into a marriage contract upon marriage, since from the moment of emancipation they become fully capable (Article 27 of the Civil Code). According to M.V. Antokolskaya, unlike a minor who has entered into marriage, a minor who has become fully capable as a result of emancipation does not acquire marital capacity by virtue of the very fact of emancipation and, therefore, does not have the right to enter into a marriage on this basis. L.B. Maksimovich, considering the marriage contract “as an institution and instrument of civil law (legislation)”, believes that “having the right to conclude any civil contract, an emancipated minor has the right to independently conclude a marriage contract before marriage, since, having full civil legal capacity, he also has transactional capacity, which is the most essential element of legal capacity (Article 23 of the Civil Code RF)". At the same time, she believes that, unlike transaction capacity, delinquent capacity and the ability to engage in entrepreneurial activity, the ability to marry is not an element of civil capacity and emancipation does not have any impact on the marital capacity of the emancipated person. Therefore, says O.A. Kabyshev, a minor who has become fully capable as a result of emancipation, does not acquire marital capacity by virtue of the very fact of emancipation and, therefore, does not have the right to enter into a marriage on this basis.

L.B. Maksimovich calls “marriage the key to the mechanism of civil capacity, and not an element of this mechanism.” Thus, these authors consider a marriage contract as a civil contract, and a citizen’s ability to conclude a marriage contract as civil capacity, while the ability to enter into marriage is interpreted by them as marital capacity.

According to the authors of the Commentary to Art. 27 of the Civil Code of the Russian Federation, “receipt of emancipation is not a basis for marriage. Marital capacity is an independent type of legal capacity, which is acquired upon reaching the age specified by law, namely 18 years.” B.M. Gongalo, P.V. Krasheninnikov also argue that “emancipation does not in any way affect the ability to get married and enter into a marriage contract. From the point of view of civil law, such a citizen is fully capable, but from the point of view of family law, he has not yet reached the age of marriage.”

There are clarifications on this issue in the decisions of higher courts. Thus, in accordance with paragraph 16 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation,” an emancipated adult has full civil rights rights and bears responsibilities, with the exception of those for the acquisition of which an age limit is established by federal legislation (for example, Article 13 of the Law of the Russian Federation “On Weapons”, Article 19 of the Law of the Russian Federation “On Military Duty and Military Service”).

This position is confirmed in paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of July 4, 1997 No. 9 “On the application of legislation by courts when considering cases of establishment of adoption”, where it was noted that minors cannot be adoptive parents even if they acquire full legal capacity, since paragraph 1 of Art. 127 of the Family Code of the Russian Federation establishes an age limit for acquiring the right to be an adoptive parent.

Based on the above, we have sufficient grounds to distinguish between civil capacity and marital capacity. Marital capacity, in our opinion, is part of the family capacity of citizens.

The family legal capacity of citizens is defined as “their ability by their actions to acquire and exercise family rights, as well as to create family responsibilities for themselves and fulfill them.” We believe that it represents an independent category of law and differs from civil capacity.

Every minor who has reached a certain level of physiological maturity can become a father or mother - you cannot prohibit them from doing so. As for the marriage contract, an emancipated person who has not reached marriageable age before marriage does not have the right to enter into a marriage contract, since: a) the law defines the inextricable connection of the marriage contract with the state registration of the marriage; b) the legislator has established the marriageable age; c) a marriage contract, in our opinion, unlike other civil contracts concluded by citizens, is by its nature a family law contract, since it creates, changes and terminates legal relations between strictly defined subjects (spouses); d) these relations differ from civil law ones in a purely personal nature. Therefore, an emancipated minor who wishes to get married must receive, in accordance with paragraph 2 of Art. 13 IC permission of the local government and only after registering the marriage will he have the right to enter into a marriage contract, since by virtue of clause 2 of Art. 21 of the Civil Code, from the time of marriage he acquires full legal capacity. At the same time, a minor who has entered into marriage does not need an emancipation procedure, since he becomes a full-fledged subject not only of family law, but also of civil law.

A prenuptial agreement has a distinctly personal character; it is not without reason that in English-language literature on family law it is sometimes called an intimate agreement. Comparative interpretation of the content of Art. 40 and 99 of the IC allows us to conclude that a marriage contract should be classified as transactions of a strictly personal nature. “The conclusion of a marriage contract is inextricably linked with the act of marriage or the state of the marital relationship, which is of a highly personal nature.” Unlike most transactions of a property nature, a marriage contract is inextricably linked to the personalities of its participants who are in a special marital relationship, and therefore cannot be concluded either with the participation of a legal representative or by proxy. In paragraph 4 of Art. 182 of the Civil Code establishes a ban on carrying out such transactions through a representative. “Unlike the Russian Federation, in France it is allowed to conclude a marriage contract through a representative, under a specially issued power of attorney containing the terms of the proposed marriage contract. A note on the conclusion of a marriage contract must be made on the marriage certificate, since a marriage contract in France can only be concluded before marriage. In France, free access is provided for interested parties to familiarize themselves with the contents of the marriage contract, which is intended to ensure the interests of the spouses’ creditors.”

The procedure for concluding a marriage contract in Russia, as well as the procedure for concluding a marriage, requires the personal participation of both spouses.

Recognizing this, scientists still disagree on the issue of concluding a marriage contract by a citizen with limited legal capacity. Civil legislation provides for the possibility of a court limiting a citizen’s legal capacity if, due to the abuse of alcoholic beverages or drugs, he puts his family in a difficult financial situation. In accordance with Art. 30 of the Civil Code, such a citizen can independently carry out only small everyday transactions; he must carry out other transactions with the consent of the trustee. Russian legislation in general and family law in particular do not contain provisions on the possibility of concluding a marriage contract by incapacitated and partially capable persons. “The French legislator considered it necessary at the legislative level to regulate issues related to the conclusion of a marriage contract by incapacitated and partially capable persons. In France, a marriage contract can be concluded by incapacitated or partially capable persons, with the obligatory presence of persons who give their consent to the marriage, i.e. guardians and trustees (Article 1399 Part 1 of the Federal Civil Code).”

In the legal literature, two opposing points of view are expressed on the issue under consideration. According to the first of them, the conclusion of a marriage contract by persons with limited legal capacity is not allowed. “It is clear that concluding a marriage contract is not one of the small everyday transactions. The possibility of concluding a marriage contract would be contrary to the essence of the relevant relationship. Consequently, persons with limited legal capacity cannot enter into a marriage contract,” believe B.M. Gongalo, P.V. Krasheninnikov. Without discussing the issue of the possibility of concluding a marriage contract by those incapacitated, but having expressed a categorical opinion on the impossibility of concluding it even with limited legal capacity, it is quite logical to assume that these authors cannot allow the conclusion of a marriage contract by incapacitated persons. By asserting that “a marriage contract is one of the types of civil law contracts”, with their position on the inadmissibility of concluding a marriage contract by those with limited legal capacity, these authors, perhaps unwillingly, actually confirm the family law nature of the marriage contract, focusing their attention on its significant differences With civil contract, which a citizen with limited legal capacity has the right to conclude with the consent of his guardian. This position seems to us inconsistent and illogical.

A.P. Sergeev considers a marriage contract “albeit a special, but a civil law transaction” and believes that it is impossible for a citizen of limited legal capacity to independently conclude a marriage contract, justifying his position by the fact that this may negatively affect the protection of his rights, since this citizen’s ability to independently participate in civil circulation are significantly undermined by his addiction to alcoholic beverages and narcotic substances.

The second point of view - on the admissibility of concluding a marriage contract by persons with limited legal capacity - is presented by the following authors. M.V. Antokolskaya believes that “to conclude a marriage contract, spouses must have legal capacity. If one of the spouses is incapacitated, a marriage contract may be concluded on his behalf by a guardian.” Since family law does not directly establish such a restriction, she explains her position, and the marriage contract itself is aimed at strengthening the financial situation of the family, it can also be concluded by persons with limited legal capacity. However, she proposes to make a special clause about the admissibility of making these agreements by those with limited legal capacity. Over time, this position was clarified by this author: “From the point of view of its legal nature, a marriage contract is civil,” and in order to conclude a marriage contract by a person with limited legal capacity, the consent of the trustee is required. A similar position is taken by L.M. Pchelintseva.

In our opinion, incapacitated persons in both cases (before registering a marriage and during marriage) cannot enter into a marriage contract. In the first case, they, by virtue of Art. 14 IC cannot get married (the law does not allow marriage with incompetent persons). Even if we assume that the marriage contract was concluded on behalf of the incapacitated person by his guardian (M.V. Antokolskaya considers this possible), then this marriage contract will be meaningless at all, since it will not give rise to rights and obligations, since it can come into force from the moment marriage registration, but the marriage cannot be concluded. In the second case, when the marriage has already been concluded and the spouse is living together declared incompetent by the court, the marriage contract, being a transaction of a strictly personal nature, by virtue of clause 4 of Art. 182 of the Civil Code cannot be concluded through a representative.

We believe that a marriage contract, which is a family law contract, can be concluded by a person with limited legal capacity, whose ability to enter into a marriage is not disputed by anyone. Moreover, the legislator determined only in relation to an incapacitated person that marriage with him is not allowed. Since the conclusion of a marriage contract, in our opinion, is associated with marital capacity, and we separate marital and civil capacity, in addition, the legislation does not contain a direct prohibition for a person with limited legal capacity to enter into a marriage contract, the principle “What is not prohibited is permitted” should apply.

In modern Russian family legislation there are still no concepts of marital capacity, much less grounds for limiting it. We believe this is a matter for the future. In legal science, proposals have already been made “to clearly define at the legislative level the right of incapacitated and partially capable persons to enter into a marriage contract, while observing certain formalities (such as the consent of the guardian and trustee).” In the meantime, this issue is the subject of scientific discussion, it is possible that the realities of life will require the legislator to regulate the legal status in family legal relations of persons with limited legal capacity.