Problems of Application of Norms of the Civil Code of Ukraine and Other Normative-Legal Acts to Regulation of Family Relations

Abstract

The article reveals some aspects of the application of the norms of the Civil Code of Ukraine (CC of Ukraine) and other normative legal acts of the national legislation to the regulation of family relations. The purpose of the article is to study the problems of applying the norms of these acts on the example of individual family deals. The author, basing on the understanding of family law as an independent sphere of Ukrainian law, shares the opinion of a number of Ukrainian scholars that the norms of the CC of Ukraine apply to the regulation of family relations in a subsidiary manner, not directly. It is noted that court practice does not always adhere to the provision of Part 1 of Art. 9 of the CC of Ukraine, according to which the provisions of the CC of Ukraine are applied to the regulation of family relations, if they are not regulated by other acts of legislation. Such a misunderstanding of the correlation between the norms of the CC of Ukraine and the Family Code of Ukraine (FC of Ukraine), while applying their provisions to the regulation of family relations, concerns, in particular, the peculiarities of recognizing as invalid family deals due to the absence of consent in relations regarding the exercise of the joint common property of the spouses; concerning the management of the juvenile child property; regarding the conclusion of a marriage contract before registration of a marriage, if its party is a juvenile person, etc. Particular attention is paid to the parents’, other legal representatives or the child’s consent, the absence of which is not recognized by the FC of Ukraine as a ground for invalidating the contracts on patronage over the child, on the placement of children to the foster family, on the organization of the activity of the family-type orphanage. The peculiarity of these treaties is that, in their legal nature and essence, these treaties are not family-law in the narrow sense, and therefore, according to the author’s point of view, the can be recognized as invalid on the grounds provided by the CC of Ukraine. The presence of a number of legal acts of family law, a large number of norms, as well as a part of the norms of the FC of Ukraine, is of a public nature. It confirms the conclusion that family law cannot be recognized as a subsphere of civil law, as a private law, but it is independent sphere of Ukrainian law, which contains both private law (predominantly) and public law (serving family relations) norms.